A Michigan county will refuse to enforce the state's new red flag law

The Michigan Senate passed a bill last month that would allow judges to order the temporary seizure of private firearms if they determine that the owner poses an immediate threat to themselves or to others.

The bill is almost certain to be signed into law by Michigan Gov. Gretchen Whitmer, a Democrat. But officials in one county in rural Michigan say they will not enforce the new gun safety bill if it becomes law.

Members of the Livingston County Board of Commissioners unanimously passed a resolution on April 24 affirming that the county is what they call a “Second Amendment sanctuary” in a legally nonbinding symbolic move. Days earlier, Livingston County Sheriff Mike Murphy had said he wouldn’t enforce the so-called red flag law.

Research shows that red flag laws can be highly effective when used, particularly when it comes to preventing suicides carried out with firearms, the leading cause of gun death. Some research suggests that the laws might be useful in preventing mass shootings, although there is less evidence supporting their use in those cases than for suicides. One reason, according to PBS, is that the laws are rarely used, partly because so many counties and sheriffs have refused to enforce them. 

Like more than 2,000 other counties in the United States, Livingston County’s board had previously voted to declare the county a Second Amendment sanctuary in February 2020. More than half of Michigan’s counties call themselves Second Amendment sanctuaries, which the Brady Campaign to Prevent Gun Violence describes as localities that “pass resolutions declaring that they will refuse to enforce and dedicate tax-funded resources to the implementation of state gun safety measures.”

Murphy told the American Independent Foundation he believes the bill violates the constitutional concept of due process, which prevents state and federal governments from depriving citizens of life, liberty, or property without due process of law.

“If there were a hearing that were completed where the petitioner has the opportunity to lay out their case, the respondent has an opportunity to lay out their case, and the judge says, Nope, the respondent should not have guns, we order the guns be removed from the house, okay, that’s due process,” Murphy said in a voicemail. “But for us to have an order signed by the judge to go remove somebody’s weapons before they have an opportunity to defend their position I believe is unconstitutional.”

Julian Davis Mortenson, a professor at the University of Michigan Law School, told the American Independent Foundation that while he hadn’t read the bill and couldn’t comment directly on its constitutionality, Murphy was “just wrong” on the law.

“There is no flat rule requiring a hearing before all property seizures,” he said. “Think about when your car is towed, or involuntary civil commitment. Think about the discovery of suspected drugs; is the sheriff saying he insists on a court hearing before seizing them for further analysis?”

“It would be astonishing for a law enforcement officer to refuse to execute a duly enacted law without vastly more detailed analysis of the questions and comparisons noted above,” he added.

The legislation is one of a trifecta of bills that the governor asked for in her State of the State address this year and is the only one that has not yet been signed into law. The other two, H.B. 4138 and S.B. 79, respectively make background checks mandatory for all firearm purchases and introduce criminal penalties for gun owners who fail to secure their guns in locations where children are likely to be present, such as homes and automobiles.

The bills are among the progressive legislative priorities that the Democratic Party has been able to pass since it took control of the state Legislature in last year’s midterm elections, which also include expanding civil rights protections for gender identity and repealing the state’s anti-union “right-to-work” law, which allowed workers to opt out of joining the union that represents them.

The Livingston Daily reported that Murphy told a meeting of county officials on April 11 that he wouldn’t enforce laws he believed were unconstitutional. 

“I’m a constitutional sheriff,” he said. “I’m not going to do anything that is going to jeopardize that, and if, God forbid, the red flag laws do pass, we won’t be enforcing those or investigating those either.”

“Constitutional sheriffs” is a term used by those who hold that county sheriffs have standing to determine the constitutionality of federal and state laws and can choose whether to enforce them. Some self-described constitutional sheriffs, but not all, are members of the Constitutional Sheriffs and Peace Officers Association, which the Southern Poverty Law Center and the Anti-Defamation League say is an anti-government extremist group.

Murphy told the American Independent Foundation he was not a member of the group, though he was aware of its existence.

“I don’t consider myself an extreme anti-government person nor anything to that extent,” he added.

A survey conducted by the Marshall Project, a criminal justice news site, found that while only 35 of the sheriffs who responded to the survey identified as a present or former member of the group, nearly half of the sheriffs who responded to the survey — 576 of America’s approximately 3,000 sheriffs — agreed with the core claim of the movement: that, within their county, they are a higher authority than state or federal government.

“When I say I’m a constitutional sheriff, I simply mean that I took an oath to uphold the Constitution, and when there’s something that’s, in my opinion, blatantly unconstitutional, then I’m not going to enforce it,” Murphy said.

Published with permission of The American Independent Foundation.