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Foster Swift Municipal Law News
July 10, 2024
Michigan’s recently enacted Red Flag gun laws became effective in February 2024. One of the measures authorizes civil courts to issue temporary Extreme Risk Protection Orders (ERPOs), which legally prevent persons at risk of harming themselves or others from possessing or purchasing firearms.
The state’s ERPO Act accomplishes this by allowing law enforcement personnel, family and household members, health care providers and others to file an ERPO petition asking that a judge review a potentially dangerous situation and, if necessary, act immediately to seize or remove firearms.
ERPO Background
Michigan is the 21st state to enact Red Flag gun laws, which all feature legal mechanisms enabling law enforcement to seize firearms from persons deemed at risk of harming themselves or others.
Since the law first took effect in Michigan, more than 100 requests for an ERPO have been made across the state. Other states with these laws have requested ERPOs which have resulted in the civil seizure of more than 15,000 firearms.
Early research has shown that Red Flag gun laws are associated with a decrease in the rate of firearms suicides, which account for over 50 percent of the nation’s gun deaths. Many gun rights groups and activists, however, have called the expanded use of these laws overzealous and unconstitutional.
How is an ERPO Requested in Michigan?
A petition may be made to a circuit court requesting an ERPO for an individual who can “reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself or another person by possessing a firearm and has engaged in an act or acts or made significant threats…”
The petitioner must provide detailed evidence in the form of specific behaviors, written or spoken threats made in the real or virtual world and other actions that have led them to this belief.
Who Can File an ERPO Petition?
Those eligible to petition include law enforcement, family members, spouses, former spouses, healthcare providers and others who have a close relationship with the respondent, or person identified as the subject of the ERPO.
What Types of Situations Have Been Cited by Petitioners in Requesting ERPOs?
To date, Michigan law enforcement authorities have been authorized to remove firearms from:
- The home of a 10-year-old threatening to shoot his elementary school classmates.
- A volatile husband making threats to kill his wife amid a separation.
- A woman experiencing delusions who brought a loaded shotgun to a convenience store.
- A young man who threatened to shoot up a supermarket with his father’s gun.
What Occurs After a Judge Approves the Execution of an ERPO?
Depending on the circumstances and urgency of the matter, a judge may order the respondent to surrender all firearms and empower law enforcement to immediately seize firearms from the respondent’s residence and other guns to which they may have access. Alternatively, an ERPO may be issued which allows the respondent to surrender firearms within 24 hours or other designated time. Respondents may also file a motion to rescind an ERPO order and request a hearing within 14 days of its issuance.
How Can Law Enforcement Most Effectively Use ERPOs to Protect the Community?
Michigan’s Red Flag laws include an important provision that authorizes law enforcement to request an ERPO over the telephone directly with a judge (or magistrate on duty) who can issue an order to seize firearms which can be immediately carried out. When ordered to do so, law enforcement agencies must seize all identified firearms and securely store them according to their standard policies and procedures relating to seized property. Requests from law enforcement personnel account for more than 80 percent of ERPOs.
What are the Legal Consequences if an Individual Resists or Refuses to Comply with an ERPO?
Under the new laws, the refusal to surrender firearms may result in immediate arrest, the filing of contempt charges and possible additional criminal charges. ERPO non-compliance can lead to penalties, including fines, one year in prison for first-time offenders and up to five years in prison for subsequent violations.
How Can I Ensure My Agency or Entity is Safely and Legally Executing ERPOs?
ERPOs are already proving to be useful tools in responding to heightened concerns over public safety and firearm-related risks. To gain the full benefit of Red Flag laws, ensure the safety of citizens and protect the rights of involved parties and individuals, it’s important for agency employees and other ERPO stakeholders to avail themselves of available training resources. The University of Michigan Institute for Firearm Injury Prevention and the National ERPO Resource Center have extensive training and technical assistance available to support states and localities in the successful and safe implementation of ERPOs and the reduction of gun violence.
The attorneys of Foster Swift’s Firearms Law Group understand the complexities of federal, state and local gun laws, including the ERPO Act. With their longstanding experience in compliance with firearms laws and regulations, our attorneys work closely with government and law enforcement agencies on all matters related to ERPOs, including the development of guidelines, policies and procedures. To discuss ERPOs or other issues related to gun laws, please contact Courtney Gabbara Agrusa at cagrusa@fosterswift.com or 248-538-6326 or another member of the Firearm Law team.
Additional ERPO Resources
The University of Michigan Institute for Firearm Injury Prevention -- The Institute collaborates with communities and harnesses the research of the University of Michigan to address the root causes and potential solutions for the issues surrounding firearm violence. An ERPO Information and Implementation Toolkit is available at https://firearminjury.umich.edu/erpo-toolkit/.
The National ERPO Resource Center – The Center is a partnership between the U.S. Department of Justice, the Johns Hopkins Center for Gun Violence Solutions and the Bureau of Justice Assistance. It is a training and technical assistance hub designed to support states and localities with the implementation of their ERPO programs. More information at erpo.org.