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How Michigan's months-old red flag law works

Portrait of Beth LeBlanc Beth LeBlanc
The Detroit News

Reports that the individual responsible for shooting nine people at a Rochester Hills splash pad Saturday had struggled with potential mental health issues and had brandished weapons at his home have brought a new focus on whether a law that went into effect in February could have blocked his access to firearms.

The 42-year-old gunman, Michael Nash, would stalk the Shelby Township home he shared with his mother, brandish one of his firearms and rant about suspicions that the government was spying on him, his mother Kathryn Nash told police before retaining a lawyer.

Nash killed himself Saturday night when police approached his home after the shooting; police say they recovered 11 firearms within the home, plus the pistol he had left at the splash pad.

More:Splash pad gunman's neighbors fear they were next, call him 'a loner'

More:Prosecutor open to charging splash pad gunman's mother

While the investigation into Nash’s motivations is ongoing, Oakland County Sheriff Michael Bouchard indicated evidence so far points, at the very least, to paranoia regarding government surveillance.

"Clearly, it appears to me, as a layperson, he's had some mental health things going on,” Bouchard said Monday.

Since Feb. 13, Michigan law has allowed for the filing of emergency requests to a circuit court judge to remove weapons from those considered to be a threat to themselves or others. Among the indicators a judge must consider in assessing an individual’s risk are threatening behavior, evidence of serious mental illness or emotional disturbance and the brandishing of a weapon.

Since the February effective date of the law, more than 100 requests for an Emergency Risk Protection Order (ERPO) have been made across Michigan’s 83 counties, according to data collected by The Detroit News. A majority of those requests have been made by law enforcement.

The request for an Emergency Risk Protection Order can be made to a judge by family members, guardians, law enforcement agencies or health care professionals.

Petitions, by and large, must include information supporting claims that the person from whom the firearms are confiscated is a serious risk to themselves or others and a list, if known, of any firearms in the individual’s possession.

Courts are expected to expedite to assess if there is a preponderance of evidence that the individual is a risk based on several factors, including a past history of physical threats or assaults; a record of serious mental illness, emotional disturbance, abuse or substance abuse; a history of other protective orders; or evidence the individual acquired or attempted to acquire a deadly weapon within the past 180 days.

A court can issue an Extreme Risk Protection Order without notice to the defendant if the risk is determined through clear and convincing evidence (a higher threshold than a preponderance of evidence). But the expedited issuance must be followed by a hearing within 14 days after the order is issued.

Law enforcement can request an immediate emergency order over the phone with a judge but must file a written petition within a day of the order being issued.

A court must state in writing the reasons for issuing or refusing to issue an Extreme Risk Protection Order and, if granting a request, outline whether the firearms should be surrendered immediately or within 24 hours and whether the firearms can be surrendered to law enforcement or a federally licensed firearm dealer.

Police must serve the order on the defendant, enter it into LEIN — Michigan's criminal justice information system — and create a tabulation of the firearms seized or surrendered.

An individual who is subject to an Extreme Risk Protection Order can request the order to be rescinded or modified once every six months. Any additional requests would be reviewed at the judge’s discretion. At a hearing seeking a change or rescission of the order, the individual must prove by a preponderance of evidence that he or she no longer poses a risk to themselves or others.

While under an Extreme Risk Protection Order, an individual must surrender their firearms and concealed pistol license and refrain from obtaining additional firearms or a concealed pistol license. A violation of the order could result in arrest, contempt of court, an extension of the order or criminal penalties of up to one year in jail for an initial violation and up to five years in jail for any additional violations.

A person who "knowingly and intentionally makes a false statement to the court" would be guilty of a misdemeanor carrying a 93-day jail term for a first offense.

eleblanc@detroitnews.com