Opinion | Michigan ‘red flag’ laws infringe on due process and don’t work

It’s 8:30 at night and you’re in the living room watching TV with your kids, when you hear a knock at the door. You go to the door and see five law enforcement officers standing on the porch.

One of the officers speaks: “I have a court order that states you must hand over all firearms due to being a threat to the public safety.”

You’re shocked. 

“What is going on? Was there a hearing? What evidence was provided? I am not a danger; I am sitting here with my children.”

The officer shakes his head. “There was no hearing, and I don’t know all the details. The court has decided you are a danger, so please hand over all your registered firearms. If you choose not to give up your firearms, you will be arrested for contempt of court and taken to jail.”

This Orwellian story, full of secret hearings and law enforcement seizures, has come to Michigan in the form of “red flag” laws. 

Senate Bills 83-86 jeopardize some of the most basic elements of American citizenship protected by the Bill of Rights. These laws endanger the First Amendment’s protection of the right to express political views the government disfavors, the Second Amendment’s protection of the right to keep and bear arms and, perhaps most importantly, the 14th Amendment’s protection of the right to basic due process. 

We should not adopt them in Michigan. 

Recently renewed efforts by Democrats to pass red flag laws in Michigan would allow a gun owner’s family members, including ex-spouses or significant others (not unknown for being vengeful), to seek an Extreme Risk Protection Order (ERPO). Following a secret hearing or no hearing at all, and with no allegation of any crime – let alone a conviction – required, the state can force a gun-owner to surrender all firearms for up to a year.

This proposed legislation insults even the most marginal standards of due process. 

The standard for determining the risk posed by a gun-owner is unclear at best and dangerously low at worst. A judge may use a statement by an ex-spouse or the mere attempt to purchase a gun as grounds to issue an ERPO. The proposed legislation would go so far as to free the judge from the usual rules of evidence and consider any “facts that the court believes are relevant,” including hearsay.  

A Danger to Law Enforcement

In addition to denying citizens’ due process, red flag laws are ineffective and endanger law enforcement. Twenty states have some version of a Red Flag law and there is still no evidence that these laws are effective in preventing violence.

Furthermore, the process by which firearms are taken away from a gun-owner under an ERPO requires law enforcement to engage in warrantless searches, placing them in potentially dangerous circumstances without the means to conduct proper searches and seizures. 

Michigan can protect the public from violent criminals by consistently and aggressively enforcing the laws we already have. Criminal threats are already punishable by law, and a firearms-related crime is seldom a person’s first criminal infraction.

Destroying due process for Michigan citizens and creating dangerous showdowns with law enforcement officers does not increase public safety, but prosecuting gun crimes and investing in mental health services does. We urge the Michigan legislature to continue its work toward boosting public safety, but not at the great expense of an individuals’ basic constitutional rights.

Michigan can protect the public from violent criminals by consistently and aggressively enforcing the laws we already have. Criminal threats are already punishable by law, and a firearms-related crime is seldom a person’s first criminal infraction. Law enforcement currently has the ability to do wellness checks and seize firearms when a clear threat to public safety exists.