Following the shooting on MSU’s campus in the backyard of Michigan’s capitol, Michigan legislators lead by Sen. Rosemary Bayer, D-Keego Harbor, have put forward several bills dealing with “common sense” firearm safety laws. One of the bills in the package is the Red Flag Protection Law.
More formally, red flag orders are called Executive Risk Protection Orders, or ERPOs.
19 states and the District of Columbia all have a version of this rule on the books. The idea behind the law is that if an individual is deemed to be at risk of harming themselves or others, there would be a petition to the court, requesting the at-risk individual be prohibited from purchasing or possessing firearms for a period of time. MSU PhD student Jennifer Paruk said. While different states have different time periods of restricting the use of firearms, these are typically around one year.
Paruk, who has researched the use of red flag laws in the past, said ERPOs are issued through the use of civil cases instead of criminal court, similar to a domestic violence restraining order. This allows for an at-risk individual to not be criminally charged, as no laws have been broken yet.
Depending on what state, most of the time either family members or spouses and partners can file for an ERPO for people who they may know intimately enough to say if they would be at risk.
Law enforcement officers are also able to file for an ERPO if the person at risk has been seen acting in a way that law enforcement believes could risk their or others’ safety.
For Michigan, the proposal would allow a mental health professional to petition for an ERPO.
Paruk said an ERPO allows for family members to intervene without risking prison time for someone they care about.
“Family members or intimate partners might not want to call the police to get the police involved or they might know something about a family member…that hasn't risen to the attention of the police,” Paruk said. “Police are called in typically after something has happened, and so family members and intimate partners might be at a place where they could intervene earlier.”
MSU doctoral candidate Stephen Oliphant, who researches firearm policy, said putting space and time between a gun and person who is experiencing a crisis can be a good thing for the “uniquely American problem of gun violence.”
Oliphant said he thinks ERPOs can be a useful tool to improve public health. He said he views it not an infringement of second amendment rights, but a method for public safety and health.
“In a lot of the cases that I read, ERPOs were used more as a last resort,” Oliphant said. “There's kind of a misconception that people file to oppose or to restrict someone's gun rights when in reality, many times what I see in these cases, people have documented that there's a history or pattern of this either suicidal or other high-risk behavior … so this provides an opportunity to restrict their access to lethal means and in some cases, likely prevent acts of gun violence.”
Oliphant said there used to be laws in Wisconsin which mirrored an ERPO such as a waiting period for using firearms after someone is deemed at risk of violence. He said that when this was repealed, there was a significant increase of overall suicides involving guns throughout the state.
MSU School of Criminal Justice Professor and member of a coalition against gun violence Christopher Smith said it is important to keep guns out of the hands of people who may experience a crisis.
“There are in the United States too many guns, too easily acquired, and in too many hands, including in the hands of people who may experience crises and issues so that they pose a danger to themselves and others,” Smith said.
Smith said the judicial system is important when discussing ERPOs. He said the orders are temporary and that they require both pieces of evidence to take away the privilege to firearms as well as a route to regain the possession of the firearms.
However, Smith said the court system is still a human process which could fall short of protection in many ways including not having evidence or not reporting properly, ending in a tragic loss of life. He also said that many of the problems come down to individual judges being a “human decision maker,” who may the evidence differently than presented or be more inclined to focus on second amendment rights.
Smith said funding for research into gun violence has become a “political football,” with Congress enacting a law a few years ago that outlawed the use of federal funds to study gun violence, making researchers entirely dependent on private foundations.
This, Smith said, makes it harder to predict more major findings in the pursuit of creating laws like the Red Flag Protection Law.
Citing the new Democratic-held legislature and Gov. Whitmer, a Democrat, being re-elected in November, Smith said that the political moment has now arrived for lawmakers to enact a red flag law.
Sen. Rosemary Bayer said that two-thirds of gun deaths in the United States are suicide, so she believed that not addressing suicide and death through a red flag law would be a “big mistake,” instead creating a direct response to it through introducing this law.
“We chose those three packages for that primary reason [that] they are sort of concrete basic starting points for all of these things,” Bayer said. “They have a big impact.”
