LANSING, Mich. (WLNS) – Among Michigan’s new gun laws are universal background checks, safe storage requirements, and perhaps the most controversial, extreme risk protection orders, which allow certain people to petition the court to have someone’s guns taken away.

Those “red flag laws” aren’t sitting well with some Michigan counties and commissioners are giving law enforcement the option to enforce them.

But is that legal?

In a unanimous vote in April, the Livingston County Board of Commissioners reaffirmed calling itself a “constitutional county.”

A resolution to symbolize that it respects the second amendment and the right to keep and bear arms.

The sheriff and prosecutor there were told to use their discretion when enforcing Michigan’s new gun laws.

“And I think it’s very important that their elected officials at our level speak up and hopefully this reaches, resonates with our state senators as well,” said county commissioner Roger Deaton.

From Livingston County to Ottawa County, those board members are also concerned about the new gun laws, even calling some “unconstitutional.”

Michigan State University professor Frank Ravitch says while counties have the right to pass resolutions like this.

“As a constitutional scholar, it seems to me to be more political signaling than it is anything to do with what the law really says and how it will likely be interpreted,” he said.

The real issue comes if police and prosecutors do not enforce the laws, especially red flag laws, which allow police to take guns away from people deemed by a judge to be a danger to themselves, or others.

“Then that creates a whole set of legal problems for that sheriff, and the department it could {be} anything from contempt to a whole kind of different possibilities,” said Ravitch.

In a statement, the Michigan Attorney General’s Office said:

“If several sheriffs and prosecutors choose not to enforce laws to prevent gun violence, avoidable injury, and death, that is a decision for their constituency to evaluate.”

But the argument that these laws are unconstitutional, illegal, or unenforceable are not based in the law. The statute establishes the highest threshold of civil court standards, requiring clear and convincing evidence for the issuance of an ERPO. Laws similar to the recently passed legislation in other states have repeatedly withstood constitutional scrutiny and been upheld in the courts. The assertions to the contrary from elected officials are based not on the law but the personal whims of what they want to support, for either personal or political reasons.  

It is also very unlikely that cooperation of a local sheriff’s department would ever be the only option for fulfillment of an ERPO.  The law requires a law enforcement agency be designated to enforce the order, and that must be an agency with jurisdiction over the respondent but does not need to be the most local authority.  Enforcement of the order is not restricted to only the designated agency, but one must be designated.  The designation is made by the judge receiving the petitioner, which would be the judge overseeing the family court division of the circuit court in whichever county the petition is filed…

…We are committed to ensuring ERPOs are enforced throughout the state despite a few local authorities’ posture on the issue.  The Department has been working with the Governor’s office toward convening conversations with multiple law enforcement agencies to ensure statewide enforcement, regardless of whether local authorities intend to enforce the law.  Furthermore, Michigan State Police holds concurrent jurisdiction, as does the Department of Attorney General and the special agents within the department, who could intervene anywhere to ensure court orders such as ERPOs are fulfilled in accordance with the law in every corner of the state. 

Danny Wimmer, press secretary

However, Nessel’s office said these resolutions don’t really have any standing, as Michigan State Police troopers and special agents can intervene anywhere in the state to enforce those laws.