MICHIGAN’S RED FLAG LAW (PUBLIC ACT 38 OF 2023)

by Van Den Heuvel Law Office

The Michigan Legislature has recently passed new laws that change how individual Michigan residents may own and use firearms. Included in these new laws is the “Red Flag Law,” which proponents believe will help prevent at-risk individuals from misusing a gun, including in the commission of a crime or for an act of violence. In essence, the law allows a judge to issue a temporary order that provides for a firearm to be taken away from a person identified as being a threat to themselves or others and to be stored by law enforcement. These are the key points of the law: 

• Effective Date: The law takes effect on February 13, 2024. 
• Purpose: It allows Michigan judges to issue an Extreme Risk Protection Order (ERPO) to remove guns from individuals deemed to pose a significant risk of harm to themselves or others. 
• Process: A family member, law enforcement officer, medical provider, former spouse, or someone who previously dated or lived with the person in question can petition the court for an ERPO. 
• Emergency Cases: In urgent situations, the court can issue an order without prior notice to the individual, but a hearing must be held within 5 to 14 days if requested. 
• Criteria for Issuing an Order: A judge will issue an ERPO if there’s evidence that the individual might soon use a firearm to cause serious physical harm. This decision is based on a preponderance of the evidence, including any significant threats or acts by the individual. 
• Duration and Extension: The order expires after one year unless extended by the court. 
• Gun Removal Procedures: The order will specify if guns are to be removed immediately or within 24 hours. Law enforcement is responsible for storing the seized weapons, which can be returned once the order is lifted. 
• Penalties for Violation: Violating an ERPO can lead to immediate arrest and criminal contempt charges, with penalties including up to one year in prison for a first violation and up to five years for subsequent violations. Failing to comply with an ERPO is a felony, punishable by up to one year in prison and a fine of up to $1,000. 
• False Petitions: Knowingly making a false statement in a petition for an ERPO is a misdemeanor, punishable by up to 93 days in jail and a fine of up to $500. 
• Providing Guns to Restricted Individuals: It’s a felony to knowingly provide a gun to someone under an ERPO, punishable by up to one year in prison and a fine of up to $1,000. 

While this law is aimed at identifying at-risk persons and preventing gun violence, it may also impact other individuals as well. The attorneys at Van Den Heuvel Law are familiar with and experienced in advising and defending individuals who may be concerned about an at-risk person, or alternatively, who have been charged with a gun law violation. If you have any questions regarding the Red Flag Law, please call Van Den Heuvel Law Office and ask to speak to an attorney.  

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