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.
[image_credit]Screen shot[/image_credit][image_caption]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.[/image_caption]
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?
[image_caption]Wright County Sheriff Sean Deringer[/image_caption]
“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.
[image_caption]Former Sheriff Tim Leslie[/image_caption]
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.
[image_credit]Minnesota House[/image_credit][image_caption]Rob Doar said he wasn’t aware of any sheriffs who had pledged to not carry out court orders.[/image_caption]
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.”
At least it will be easy to spot the people for whom the idea of “law and order” has always just been just a slogan to defend their ability to lock up anyone they don’t like, typically minorities. Not that conservatives need to provide any more evidence of that fact.
I’m so old, I remember when conservatives:
Believed in local control
Favored limited government
Said everyone should unquestioningly follow all laws
“Deringer urged more money for, and focus on, mental health initiatives.”
Baloney. What the heck does that even mean? Involuntary commitment? Schedule therapy sessions? Weeks of waiting for an appointment? Meanwhile the person in question has access to guns, which could – and did – let something like Buffalo happen. These red flag laws are the right tool to get the guns separated from the person at the time that the threat is most dangerous, not weeks or months later. They are not meant to deprive anyone of their 2nd Amendment rights, which – and this is important – are NOT absolute and don’t trump the rights of others around the gun owner to stay alive.
Here’s what I’d do, if I had the misfortune to live where you folks do. I’d do what I did during Covid: for every public health traitor of a sheriff who ran his un-masked mouth over media about refusing to enforce Covid restrictions, I would write that sheriff to say I was going to be driving through his jurisdiction soon and would he mind providing me with a list of laws his deputies intended on enforcing and not enforcing.
Selective application of the rule of law is a hallmark of the anti-democracy movement. I’m not at all surprised that your sheriffs might not be excited to save lives via devices as benign as pre-emptive red flag laws; many of these chaps are intellectually problematic anyway, and in MN, typically more prone to pursue their sideline of drinking and driving rather than actually doing their jobs. Best of luck dealing with these renegade NRA mistresses.
Really, you think it’s a sheriff’s responsibility to enforce mask wearing during Covid. Wasn’t there enough mask shamers to perform that task ? At the same time , real crimes were exploding throughout the metro.
You think domestics are dangerous. Try knocking on the door to ask a mentally unstable person to hand over their guns.
The people that question and criticize law enforcement are same people who don’t have what it takes do their job.
Since 40% of cops commit domestic abuse and they almost never hold each other accountable for the crimes the commit, you might want to find another example.
I had a high school friend who became a police officer. He was just remembered for his service after his death 20 years ago. He was murdered in an ambush by someone who then attacked another officer. Fortunately this murderer is no longer with us. He left behind a wife and two daughters. Unlike most occupations , police officers sometimes end up putting their life at risk.
Good vs evil. My example is just fine.
If judges are involved, there is due process. It seems like the main challenge is to get guns out of the hands of those who are deemed a risk to themselves or others. With potential suicides, coming for a gun might trigger what the law seeks to provide.
Minnesota should really be looking at best practices if other states with experience enforcing these laws as well as examples of approaches that were ineffective or harmful. Add it to police training.
I’m curious—say a sheriff declined to obey an order to seize a person’s guns, and then that person went out and shot someone, or committed suicide. Could the victim’s family plausibly sue the sheriff?
Probably not. The sheriff would hide behind qualified immunity.
The sheriff would, however, offer thoughts and prayers and tell us that the real issue is mental health.
Not so sure about that. “Qualified immunity” was supposed to protect law enforcement from suits that result in doing their “official duty.” Not enforcing a law is, by definition, outside of their “official duty.” They very well could open themselves up to lawsuits by not enforcing the law, which directly results in death or other harm. The problem is going to be establishing the direct link. But it’s plausible that the courts might find that failure to enforce a red flag order and the subject of the red flag order commits a crime (especially murder – it might be harder with suicide), law enforcement could be at least civilly liable, if not criminally.
At common law, it was considered a tort to let a dangerous person (eg a young child) have a loaded weapon (trespass on the case, for fans of common law pleading). Refusing/failing to enforce an order taking away a gun from a domestic abuser is arguably a similar scenario, but the chain of causation is a little less clear, at least, in the evidentiary sense.
Officers who have been protected from accountability have used qualified immunity as a shield from suits involving excessive force and theft. It’s not a stretch to say that a sheriff who claims he was just too dang busy to go get a gun would be allowed to rely on the same defense.
That’s the critical question, isn’t it, Elsa? I have a hunch that in a civil suit they would be found liable. Whether personally liable, that’s another question.
Do you mean like the Soros appointed DA’s that keep releasing criminals that continue to shoot up murderapolis?
Should Walz be liable for standing down during the riots and not protecting citizens or businesses from being destroyed ?
Plenty of damage from his failure to respond.
Anti-semetic conspiracy drivel like this gets accepted by the mods?
Egads sanctuary counties
Choi and Freeman/Moriarty fail to prosecute gun criminals, so what’s the difference?
Former sheriff Leslie…. was that your approach when enforcing laws, ‘bang on the door, we’re here go take your guns’ ? Macho boy, Rambo, in-your-face. Thankfully you are no longer a sheriff.
When sheriffs arrest illegals, do they send them to ICE?
This is relevant to this issue how?
Sheriffs deciding which laws they will enforce.
Ah, got it, a lib’rul hypocrisy check.
I am not expecting much use of red flag petitions filed by red county sheriffs, but I do expect them to carry out emergency court orders, so this is much ado about nothing. The affected gun nut should be told over the phone the family isn’t coming back home til he relinquishes his gun(s), nor will he be driving anywhere.
State and county officials declining to enforce federal laws? Yes, totally the same thing.
Well, it’s all fun and games until someone, or a classroom, or a bar full of people, gets killed by a gun that should have been taken away from a dangerous person. Any Sherriff that thought the public they’re supposed to serve and protect would rather be armed than alive may well find themselves in the crosshairs of a real sh*t storm they couldn’t have imagined. That won’t be funny, and I’m not sure it won’t be criminal negligence.