Michigan “Extreme Risk Protection Order” Bills

After my last posting I took the occasion to review the subject, consisting of House Bill No. 4283 and Senate Bill No. 156 introduced in the Michigan Legislature.  They are “carbon copies” of each other.

Since the last post didn’t explicitly indicate that I favor these type of bills if properly structured, I decided that I ought to post comments I submitted to my State Representative and State Senator.  These demonstrate both my support of appropriate ERPO statutes, and also deficiencies in those bills.  Therefore, below is the text of those comments.

This is provided in regard to [House Bill No. 4283] [Senate Bill No. 156].

It is my opinion that the utility of an Extreme Risk Protection Order (“ERPO”) is a beneficial exercise of authority in appropriate situations and ought to be authorized by appropriate statute provided that the authorizing ERPO statute conforms to procedural due process requirements. Regrettably, it is my opinion that this bill does not, and therefore urge that the committee and chamber make radical amendments thereto.

For assistance in demonstrating some of the deficiencies in the aforesaid bill I have recently made an analysis of similar bills now pending in the U.S. Senate, this being accessible at:

Do the current proposed Congressional “Red Flag Laws” themselves exhibit Red Flags?

A PDF version of the post, containing in the body thereof the PDF tables linked therein, can be provided on request.

Specifically, I inter alia note problems with the following sections of the bill:

  • 3(e) (a qualified objection, as to its breadth)
  • 5(2)(b), (c) and (d)
  • 5(3), as to the “significant risk”, rather than an “extreme risk”, standard
  • 7(1), as to the minimal “reasonable cause” and “significant risk” standards. [In this connection I would note that the bill does not even require the unacceptable “preponderance of evidence” standard for the adversarial hearing order imposed by S.506 of Senator Feinstein.]
  • 7(1)(a), as it is not clear from the “testimony” reference that appearance by and cross-examination of the complainant is required, risking the same possibility of “show trials” envisioned by Senator Feinstein
  • 7(2), as a “clear and convincing” standard only is appropriate, though it, unlike S.7 of Senator Rubio and S.506 of Senator Feinstein, does require a showing of “immediate and irreparable injury”
  • 7(4), as to the limitation to 1 motion is inadequate, as potential abuse from multiple motions could be otherwise addressed
  • 17

Other sections of the bill also pose difficulties but, since they are not replicated in the U.S. Senate Bills, are not addressed in the post and would have to be discussed later.

I trust the foregoing is satisfactory to indicate the necessity of opposition to the aforesaid bill as presently drafted.

WAYNE A. SMITH
Sanilac County, Michigan USA
04 June 2019

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