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Understanding the ‘Red Flag’ Law and Senate Bill 83

by | Apr 21, 2023 | Firm News |

Michigan is one step closer to having so-called red flag laws on the books as Governor Gretchen Whitmer is expected to sign Senate Bill 83 into legislation.

David Nacht knows the law and his way around a courtroom. So, WPBN asked him to read Senate Bill 83 for us.

“This law is an effort to give an opportunity for a parent in particular, or for a significant other to say, this person shouldn’t have a gun, we will all be safer,” Nacht said. “We all want to reduce gun violence. The question is are judges really in a position to make those decisions? And we’re going to find out how judges act.”

Senate Bill 83 is headed to become law.

It allows a list of people, family members, exes, health professionals and law enforcement to petition the court to have guns removed from an individual who poses a risk to themselves or others.

Then, a local circuit court judge has to decide.

“What do they look at? It literally allows the judge to look at any other facts are the court believes are relevant, as well as other things you’d expect them to look at criminal history, mental illness, the kinds of things we would expect that come up in personal protection orders all the time,” Nacht said.

The bill states clearly what the judge can look at it, with one very open-ended clause, “any other facts that the court believes are relevant.”

That’s a lot of legal wiggle room, a lot of power and a lot of pressure on judges.

With so much left up to interpretation, Nacht sees the potential of very similar cases getting very different decisions based on location alone.

“I think when you’re in an area where gun ownership is high and as part of the culture, such as in northern Michigan, you’re going to see judges reluctant to pull firearms absent,” Nacht said. “Someone is really acting in a very aberrant and scary fashion. But I think that in communities where judges don’t consider firearms to be sort of a typical necessary part of life, you may see a greater willingness to pull the guns.”

Laws are often intended for interpretation and scrutiny. Nacht expects that to follow shortly.

“I think it’ll be interesting to see whether some gun ownership group brings a constitutional challenge to the statute,” Nacht said.

Some claim it’s all about saving lives. Others say it’s an infringement on the second amendment.

In between is the line that many say this tries to straddle and address an issue that has no easy solution.

“So, the question is, what can we do while preserving this constitutional right? And the cultural norms and many families, what can we do to protect our kids to protect all of us from dangerous people? This is a reasonable first shot at it. If the judges act reasonably,” Nacht said.

Click here to watch the video interview and read the full article, “Understanding ‘Red Flag’ Laws, by Marc Schollett, April 21, 2023.