Red Flag Laws: The Pop-Tart Gun to Prison Pipeline?

Opinion

Several years ago, a seven-year-old boy was suspended from school for chewing his breakfast pastry into the shape of a gun and pretending to fire it at his second grade classmates.

A school official stated the child had “used food to make inappropriate gestures that disrupted the class.” Only after his parents hired a lawyer and pursued legal proceedings was the matter finally settled, some three years later.

In another incident, a principal suspended a ten-year old boy for pointing a “lookalike firearm” at another student and pretending to shoot, where the “level 2 lookalike firearm” cited in the suspension letter was the child’s finger. Elsewhere, a five-year-old girl was suspended from kindergarten for bringing a “fake weapon” to school – a Disney princess “battery-powered clear plastic gun that blows bubbles when the trigger is pulled.” Another five-year old kindergartner was disciplined after bringing a “Hello Kitty” bubblegun to school and saying to her friends, “I’ll shoot you, you shoot me, and we’ll all play together.” This earned her a ten-day suspension (later dropped to two days) for her “terroristic threat,” and the school imposed a “medical/psychological evaluation” as part of its disciplinary response. The evaluating therapist described the child as a “typical 5-year-old by temperament and interests,” who had “no harmful or predatory intent” in making the comments or displayed any behavioral problems. The school reportedly only downgraded the incident from a “terroristic threat” to the slightly less shocking “threat to harm others” because no criminal complaint was made “due to (the) ages of the children” involved.

In all of these cases, the schools argued the disciplinary action was the most appropriate way to address the behavior.

Besides the unfavorable disciplinary record that follows the child in their progress through the school system, being unfairly stigmatized as mentally unstable or violent, and the possible referral to the juvenile justice system, it now appears these kinds of behaviors may also result in the issuance of restraining orders under a state’s “red flag” law.

Like other such laws, Michigan’s “red flag” law (aka the Extreme Risk Protection Order Act), has scant due process protections. The legislation specifically allows the issuance of orders against minors, uses an expansive definition of “possession or control” of a firearm, and allows for the confiscation of guns from persons who are not the subject of the order.

A Michigan court may issue an extreme risk protection order “ex parte” – without written or oral notice to the subject of the order or an opportunity to respond to the allegations. If the petitioner is a law enforcement officer, he or she may apply for an immediate emergency order “verbally over the telephone,” without a written petition, and the judge or magistrate may issue the order based solely on that request.

The threshold finding a court must make to justify the issuance of an order is evidence that the restrained person “can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual by possessing a firearm, and has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.”

The law went into effect on February 13, 2024. A Michigan State report on how the law has been applied throughout 2024 shows that over 90% of orders issued against adults (348 out of 384) were issued ex parte, including 111 law enforcement “immediate emergency orders.” The likelihood of an order being issued this way was extremely high: of the 338 complaints disposed of ex parte, only 65 were denied. The report specifies that the age of respondents was unknown in 41% of cases, but did involve those under the age of 19 in at least five cases. All of the orders sought against minors were issued ex parte.

According to The Detroit News, which did additional research into the matter, the law has been invoked against children as young as six, eight, and ten years old. An order being issued against a child means that firearms at the family home are liable to be confiscated regardless of actual ownership, given that “possession and control” is an open-ended definition. The newspaper quoted a Michigan legislator who confirmed that the law “allows officers to confiscate unsecured firearms from parents or guardians even though the actual order is in the child’s name,” and that aspect “was something we were very intentional about.”

The details The Detroit News shared on the cases involving the elementary school–aged respondents indicate that the six-year-old was allegedly “experiencing a mental health crisis” and disclosed “that he had ready access to firearms.” Police who came to the home to seize the guns found that the guns had been previously removed. The eight-year-old respondent had allegedly threatened to kill individuals and had “kicked, punched, and tried to bite a school resource officer and school staff.” His mother told police her guns were secured (“locked up”), but they were confiscated by law enforcement regardless. The order there was reportedly due to expire, and it appears any danger was either unsubstantiated or has abated, as police state they had no plans to seek an extension. The case of the ten-year-old involved alleged “threats to shoot another student in school,” but the order in his case was reportedly cancelled and police found no evidence that the child had access to a firearm.

Of course, school officials should take seriously and respond appropriately to actual violence, threats of violence, and intimidation or bullying.

However, these orders prohibit the restrained person from purchasing a firearm, which, in the case of a minor, federal law prohibits anyways: a licensed firearm dealer is prohibited from selling or delivering a long gun to anyone under the age of 18; the minimum age for handgun sales and deliveries by dealers is 21. As for possession and access, Michigan state law already makes it a crime, subject to listed exceptions, for any person to store or leave a firearm unlocked or otherwise unsecured in circumstances where a minor is able to possess or exhibit the firearm in a public place, exhibit the firearm in a careless, reckless, or threatening manner, or use the gun to cause injury or death. Another state law makes a custodial parent criminally liable when a minor violates a state gun law on school property or a school bus.

In any event, it’s not clear how a violation of a “red flag” order can be enforced against such young children. A violation normally subjects the restrained individual to immediate arrest, the contempt powers of the court, an automatic extension of the order, and criminal penalties, including imprisonment for up to one year for an initial violation and up to five years for a subsequent violation. Legislative reforms signed into law by Michigan Governor Gretchen Whitmer in 2019, on who is considered to be an adult under the state criminal justice system, increased the age from 17 to 18 years old. Whitmer cited the “unjust practice of charging and punishing our children as adults when they make mistakes” and the need to ensure “that children have access to due process that is more responsive to juveniles” – none of which apply in the civil “red flag” context.

The “red flag” response not only escalates a very young child’s disciplinary problems towards “solutions” crafted for adults, but there’s no requirement to deal with whatever triggers the problematic behavior. The Detroit News makes no mention of any resources being deployed to address the mental health of the children, assuming that all of these orders were issued after meeting the necessary legal threshold of a reasonable expectation, in the near future, that the child would cause serious physical injury to self or others. In this, the Michigan law, in common with other “red flag” laws, deals only with the superficial issue of curtailing access to firearms and requires nothing to be done about the underlying behavioral issues or other factors that allegedly pose the real threat to physical safety.

In the case of a child, the order allows law enforcement to confiscate firearms from parents, guardians or other persons whose guns are on the premises, even though the order applies exclusively to the child. This opens the door to its use as a law enforcement “fishing expedition” that bypasses search warrants and other investigatory requirements. The American Civil Liberties Association (ACLU) opposed a Rhode Island “red flag” law for many reasons, not the least of which was this possibility of misuse. One could easily imagine how the low standard for judicial intervention, including by law enforcement as petitioners, means that these orders could be deployed “in scenarios far outside” the intended context. “Filing, and being granted, such a petition has the additional bonus of serving as a general search warrant that could conveniently allow police to ‘stumble across’ evidence of unrelated illegal activity” while looking for guns to seize pursuant to an order.

Interestingly, the Michigan report on the “red flag” law in its first year notes that at least 31 individuals restrained by an order “were charged with 74 criminal offenses within 30 days of the [order’s] entry.” The list of charges includes several weapons violations, but also illegal drug offenses, reckless driving, embezzlement, and many more. A footnote indicates that the filing date for the charges is not necessarily the same date that the alleged offense occurred, and it may have occurred before or after the date the order was entered.

“Red flag” laws have been presented as a prudent solution to the problem of violent crime, but any benefits they provide come at the expense of individual due process protections, using an inherently speculative process that that punishes individuals for harm that may never occur. The application of these laws to very young children is even more troubling – what can a barely literate six-year-old possibly understand on being served with a “red flag” court order? Apart from the dismal prospect that these procedures are being used instead of more appropriate public health interventions, the orders grant law enforcement broad authority to search for guns owned or possessed by persons other than the respondent named in the order, exposing anyone on the premises to police intrusion.

The use of kids to target their parents’ or guardians’ rights, property, or privacy is now one more reason to be skeptical of red flag orders. We are now well past the point at which this concept could be considered a commonsense idea that bring all sides of the gun debate together.

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About NRA-ILA:

Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess, and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org