During a nine-hour debate on the Senate floor in mid-May, state Sen. Justin Eichorn, R-Grand Rapids, raised the possibility that elected sheriffs in Minnesota who oppose the state’s new “red flag” gun law might simply ignore the statute.
That provision, which passed the DFL-controlled Legislature and was signed by Gov. Tim Walz, allows certain people to petition a court, asking a judge to order guns taken from someone if they’re deemed a threat to themselves or others.
“We’ve heard from county sheriffs throughout this state that even if you do this, they’re not going to enforce it anyway,” Eichorn said. “And thank God for our local sheriffs, they’re elected just like we are to represent some of the same people we represent.”
Across the country, some sheriffs and politicians have pledged to ignore gun laws, including the red flag measures also known as “extreme risk protection orders.”
For instance, The Associated Press reported last year that in Colorado, counties that describe themselves as “Second Amendment Sanctuaries” have issued fewer of those red flag orders than elsewhere in the state. Some sheriffs in Michigan have also said they won’t enforce protection orders.
In Minnesota, many sheriffs publicly campaigned against a proposal for tougher new gun storage regulations that ultimately failed to pass the Legislature. Some, though fewer, also opposed the red flag law and could be more hesitant to file petitions to remove guns.
When it comes to carrying out gun seizures ordered by a judge, the organization representing sheriffs across the state expects they will comply.
“When push comes to shove we swore an oath to the Constitution that duly enacted laws by the Legislature will be enforced by the sheriff,” said Tim Leslie, a former Dakota County sheriff and a lobbyist for the Minnesota Sheriffs’ Association.
Will sheriffs file petitions?
Under Minnesota’s new law, certain people — including family members, a spouse, ex-spouse, romantic partner, roommate, law enforcement officer, city or county attorney — can petition a judge for a court order removing firerarms from a person at risk of suicide or harm to others.
But there’s two types of potential orders.
A judge can grant an “emergency” order, which leads to a 14-day seizure of guns, if a person presents an “immediate and present danger.” Under those circumstances, the subject of the order is not made aware of the legal proceeding.
A judge can also grant a longer extreme-risk order, up to one year initially with potential for extensions. The gun owner in that case can give input to the court and contest any allegations.
DFL lawmakers who passed the red flag law have celebrated the emergency order as a key part of the law, allowing for quick action to separate someone from a gun who might be in serious danger or pose a risk to others.
But the “ex-parte” process has been criticized by gun rights organizations and some in law enforcement who worry the orders will result in having guns taken away — and therefore Second Amendment rights — without proper due process. And opponents of the law argue the orders can be abused by those acting in bad faith, though the law does have gross misdemeanor penalties for those who file for an order using false information or with the intent to harass or threaten.
Sheriffs with these concerns do have a choice in whether to file red flag petitions, said Sen. Ron Latz, a St. Louis Park DFLer who helped advance the measure through the Legislature. But, he said, family and others can ask a judge for an order.
“That’s one reason we have two paths to the courthouse,” Latz told reporters last week.
But will sheriffs choose not to file the orders?
Wright County passed a “sanctuary” resolution at Sheriff Sean Deringer’s urging about three years ago, he said, which he described as more of a political statement than a true limit on enforcing gun laws. And he harbors serious concerns about the effectiveness of the law and its relation to due process.
“I’m about as pro-Second Amendment as you get,” Deringer told MinnPost.
But Deringer said he would not rule out filing red flag petitions in certain circumstances. He said he’d want to vigorously investigate any claims, which could result in fewer petitions initiated by the sheriff’s office than in other counties where sheriffs might be more supportive of the law.
However, Deringer said he would prefer all petitions be run through law enforcement rather than just a family member to ensure the petition is based on solid information, he said, rather than “a whim, or a concern, or even the possibility of the law being weaponized against another family member.”
Rob Doar, senior vice president of government affairs for the Minnesota Gun Owners Caucus, did urge sheriffs to avoid seeking ex-parte orders. He said if the situation is that urgent, they can pursue other options, like involuntary psychiatric treatment.
Will sheriffs carry out gun seizure orders?
Another question entirely is whether sheriffs will actually carry out an order from a judge to seize a firearm if others petition the court.
Leslie said some sheriffs worry about the potential risk of carrying out seizures on people who have guns and may be dangerous, especially if they hadn’t been unaware of the court proceeding. The new law does say the subject of an emergency order will be asked first to voluntarily comply and surrender weapons before a search warrant is executed. “You bang on somebody’s door, ‘we’re here to take your guns,’ that’s a dangerous proposition in some communities, frankly,” Leslie said.
Others have constitutional questions. Deringer said he believed the law would be challenged in court and wondered how police would know if they had found every gun someone had.
However, Leslie, Deringer and Doar all said sheriffs have a duty to obey a court order. “Expressing dissatisfaction or not supporting a law doesn’t mean they won’t enforce it,” Leslie said.
Doar noted there are some sheriffs across the country who believe they don’t have to enforce certain laws they believe are unconstitutional. Deringer, at least, is not among them when it comes to Minnesota’s new gun regulations. He said something approved by the Legislature and signed by the governor should be followed. And Deringer said it’s not up to him to decide if something is constitutional.
“I’m also a rule follower, and I obviously don’t want to jeopardize my career, I don’t want to jeopardize my deputies’ livelihood and I also want to protect constituents,” Deringer said. Not enforcing the red flag law could expose Wright County to “huge risk and liability,” he said.
“We don’t obviously want a bunch of sheriffs being removed from office,” Deringer said. “If I walked into our judge’s office and said ‘your court order is junk and I’m not enforcing it,’ I have no idea where that would go, but I’m guessing it doesn’t end at that particular moment. I’m guessing that the governor would get involved, the AG would get involved.”
Doar said he wasn’t aware of any sheriffs who had pledged to not carry out court orders.
At a ceremony last week to celebrate the new gun laws, family medicine provider Melissa Kennedy described the day in 2021 when Gregory Ulrich shot five people and exploded pipe bombs, killing one at her clinic in Buffalo, a city in Wright County.
Ulrich was “well-known” to the community and the local police department, Kennedy told reporters. “He was an angry patient who had threatened to kill doctors and nurses and had previously violated a restraining order,” she said. At that point, a judge ordered him to temporarily surrender any firearms. But the Star Tribune reported at the time that Ulrich was given a permit to buy a handgun by Buffalo police.
“These bills matter,” Kennedy said.
The shooting illustrates the potential divide over the red flag laws. Where Kennedy saw a clear case for an extreme risk order, Deringer wasn’t sure if the law would have made a difference.
While Deringer said there were years of threats and signs in the Buffalo shooting, he said many threats don’t turn into an active shooter, which makes it hard to assess. Deringer urged more money for, and focus on, mental health initiatives.
“I don’t know if the law as it’s written now would have had anything to do to prevent what happened,” Deringer said. “It depends on what triggers would turn up in a background investigation. Because somebody made threats doesn’t necessarily mean that it’s going to rise to a crime.”