How Michigan’s months-old red flag law works
Reports that the man responsible for shooting nine people at a Rochester Hills water playground on Saturday may have suffered from mental health issues and brandished weapons at home are drawing renewed attention to whether a law enacted in February may have denied him access to firearms.
The shooter, Michael Nash, 42, stalked the Shelby Township home where he lived with his mother, brandishing one of his firearms and ranting about suspicions that the government was spying on him, his mother, Kathryn Nash, told police before she hired a lawyer.
Nash committed suicide on Saturday night when police went to his house after the shooting. Police said they found 11 firearms in his house as well as the pistol he left at the water playground.
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While the investigation into Nash’s motives is ongoing, Oakland County Sheriff Michael Bouchard pointed out that the evidence so far points to at least paranoia about government surveillance.
“For me as a layperson, it seems clear that he has mental health problems,” Bouchard said on Monday.
As of February 13, Michigan law allows people who are considered a threat to themselves or others to file an emergency petition with a district judge to confiscate weapons. Indicators a judge must consider when assessing whether a person poses a threat include threatening behavior, evidence of serious mental illness or emotional disturbance, and brandishing a weapon.
Since the law went into effect in February, more than 100 requests for an Emergency Risk Protection Order (ERPO) have been filed in Michigan’s 83 counties, according to data collected by The Detroit News. Most of those requests have been filed by law enforcement agencies.
A request for a temporary risk protection order may be made to a judge by family members, guardians, law enforcement or medical professionals.
Petitions must contain substantial information supporting the claim that the person whose firearms are being taken poses a serious danger to themselves or others, and a list of all firearms in the person’s possession (if known).
Courts are expected to expedite requests for a temporary protection from danger order under the Act to evaluate whether there is a preponderance of evidence that the person poses a danger based on several factors, including a history of physical threats or attacks, a history of serious mental illness, emotional disturbances, abuse or substance abuse, a history of other protective orders, or evidence that the person acquired or attempted to acquire a deadly weapon within the past 180 days.
A court may issue an Extreme Risk Protection Order without notice to the defendant if the risk is established by clear and convincing evidence (a higher threshold than a preponderance of the evidence). However, the expedited issuance must be followed by a hearing within 14 days of the order being issued.
Law enforcement may request an immediate restraining order from a judge by telephone, but must submit a written request within one day of the order being issued.
A court must set out in writing the reasons for issuing or denying an Extreme Risk Protection Order and, if granting a motion, whether the firearms must be surrendered immediately or within 24 hours and whether the firearms can be surrendered to law enforcement or to a state-licensed firearms dealer.
Police must serve the warrant on the defendant, enter it into LEIN – Michigan’s Criminal Justice Information System – and create a record of the firearms seized or surrendered.
A person who has been placed under an Extreme Risk Protection Order may apply to have the order revoked or modified every six months. Any subsequent applications will be considered at the discretion of the judge. At a hearing to modify or revoke the order, the person must prove beyond a reasonable doubt that they no longer pose a danger to themselves or others.
While a person is under an Extreme Risk Protection Order, they must surrender their firearms and their concealed carry pistol license and may not acquire any additional firearms or concealed carry pistol licenses. Violation of the order may result in arrest, contempt of court, an extension of the order, or criminal penalties of up to one year in prison for a first offense and up to five years in prison for subsequent offenses.
A person who “knowingly and willfully makes a false statement in court” is guilty of a misdemeanor punishable by 93 days in prison for the first offense.
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