February 28, 2019, Introduced by Senators MCMORROW, WOJNO, GEISS, IRWIN, POLEHANKI, BAYER, MOSS, BULLOCK, HERTEL, ANANICH and HOLLIER and referred to the Committee on Government Operations.
A bill to provide for the issuance of restraining orders
prohibiting certain individuals from possessing or purchasing
firearms and ordering the surrender and seizure of a restrained
individual's firearms; to provide for the powers and duties of
certain state and local governmental officers and entities; to
prescribe penalties; and to provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"extreme risk protection order act".
Sec. 3. As used in this act:
(a) "C.J.I.S. policy council act" means the C.J.I.S. policy
council act, 1974 PA 163, MCL 28.211 to 28.215.
(b) "Dating relationship" means a relationship that consists
of frequent, intimate associations primarily characterized by the
expectation of affectional involvement. Dating relationship does
not include a casual relationship or an ordinary fraternization
between 2 individuals in a business or social context.
(c) "Defendant" means the person against whom an extreme risk
protection order is requested in an action under section 5.
(d) "Extreme risk protection order" means an order issued by a
court under section 9.
(e) "Family member" means an individual who is related to the
defendant as any of the following:
(i) A parent.
(ii) A son or daughter.
(iii) A sibling.
(iv) A grandparent.
(v) A grandchild.
(vi) An uncle or aunt.
(vii) A first cousin.
(f) "Law enforcement agency" means any of the following:
(i) A county sheriff's department.
(ii) The department of state police.
(iii) A police department of an incorporated city or village.
(g) "Law enforcement officer" means an individual employed by
a law enforcement agency to enforce the criminal laws of this
state.
(h) "Plaintiff" means the individual who requests an extreme
risk protection order in an action under section 5.
(i) "Restrained individual" means the individual against whom
an extreme risk protection order has been issued and is in effect.
Sec. 5. (1) An individual described in subsection (2) may file
an action with the circuit court requesting the court to enter an
extreme risk protection order.
(2) Any of the following may file an action under this
section:
(a) The spouse of the defendant.
(b) A former spouse of the defendant.
(c) An individual who has a child in common with the
defendant.
(d) An individual who has or has had a dating relationship
with the defendant.
(e) An individual who resides or has resided in the same
household with the individual.
(f) A family member.
(g) A law enforcement officer.
(3) An individual who files an action under this section shall
do so by filing a summons and complaint on forms approved by the
state court administrative office as directed by the supreme court.
The complaint must state facts that show that issuance of an
extreme risk protection order is necessary because the defendant
poses a significant risk of personal injury to himself or herself
or others by possessing a firearm.
(4) If the plaintiff knows that the defendant is issued a
license to carry a concealed pistol, is required to carry a weapon
as a condition of his or her employment, or is a law enforcement
officer, a local corrections officer, or an employee of the
department of corrections, who carries a firearm during the normal
course of his or her employment, the plaintiff shall state that in
the complaint.
(5) If the plaintiff knows or believes that the defendant owns
or possesses firearms, the plaintiff shall state that and identify
the firearms in the complaint.
(6) In an action under this section, the address of the
plaintiff must not be disclosed in any pleading or paper or
otherwise.
Sec. 6. The court in which an action is filed under section 5
shall expedite and give priority to a hearing on the issuance of an
extreme risk protection order and to any other hearings required
under this act.
Sec. 7. (1) In an action under section 5, the court shall
issue an extreme risk protection order if the court determines that
there is reasonable cause to believe that the defendant poses a
significant risk of personal injury to himself or herself or others
by possessing a firearm. In determining whether reasonable cause
exists, the court shall consider all of the following:
(a) Testimony, documents, or other evidence, including, but
not limited to, electronic data, offered in support of the request
for the extreme risk protection order.
(b) Whether the defendant has previously inflicted or
threatened to inflict personal injury on himself or herself or
others.
(c) Any other facts that the court believes are relevant.
(2) The court in an action under section 5 may issue an
extreme risk protection order without written or oral notice to the
defendant if the court determines that evidence of specific facts
has been submitted under oath or affirmation that clearly
establishes that immediate and irreparable injury will result from
the delay required to effectuate notice or that the notice will
itself precipitate adverse action before an extreme risk protection
order can be issued.
(3) If a court issues an extreme risk protection order under
subsection (2), the court shall conduct a hearing on the order
within 14 days after the order is served on the restrained
individual or after the restrained individual receives actual
notice of the order.
(4) An individual restrained under an extreme risk protection
order may file a motion to modify or rescind the order at any time
and request a hearing under supreme court rules. The restrained
individual may file only 1 motion to modify or rescind the order
during the time the order is in effect under section 9(1)(e), and
only 1 motion to modify or rescind an extended order during the
time the extended order is in effect under section 17.
Sec. 9. (1) If the court determines under section 7 that an
extreme risk protection order should be issued, the court shall
include all of the following provisions in the order:
(a) That the restrained individual shall not purchase or
possess a firearm.
(b) That the restrained individual shall not apply for a
concealed pistol license and, if the restrained individual has been
issued a license to carry a concealed pistol, the license will be
suspended or revoked under section 8 of 1927 PA 372, MCL 28.428,
once the order is entered into the law enforcement information
network and that the individual shall surrender the license as
required by section 8 of 1927 PA 372, MCL 28.428.
(c) That the restrained individual shall, within 24 hours
after being served with the order, surrender all firearms in the
individual's possession to the law enforcement agency designated
under subdivision (h).
(d) That, if the restrained individual does not surrender all
firearms in the individual's possession as ordered under
subdivision (c), the law enforcement agency designated under
subdivision (h) will be authorized to seize firearms in the
possession of the restrained individual.
(e) If the plaintiff has identified any firearms under section
5(5), a specific description of the firearms to be surrendered or
seized.
(f) If the order is issued under section 7(2), a statement
that a hearing will be held within 14 days after the restrained
individual is served with or receives actual notice of the order
and that the restrained individual may appear at the hearing and
request the court to modify or rescind the order.
(g) A statement that the restrained individual may, 1 time
while the order is in effect, file a motion to modify or rescind
the order and that motion forms and filing instructions are
available from the clerk of the court.
(h) A designation of the law enforcement agency that is
responsible for entering the order into the law enforcement
information network and forwarding the order to the Federal Bureau
of Investigation and the Bureau of Alcohol, Tobacco, Firearms, and
Explosives under section 15(1). The law enforcement agency
designated under this subdivision must be an agency within whose
jurisdiction the restrained individual resides.
(i) A statement that violation of the order will subject the
restrained individual to immediate arrest and the civil and
criminal contempt powers of the court, and that if the restrained
individual is found guilty of criminal contempt, he or she will be
imprisoned for not more than 93 days and may be fined not more than
$500.00.
(j) An expiration date that is 1 year from the date of
issuance.
(2) An extreme risk protection order is effective and
enforceable immediately after it is served on the restrained
individual or after the restrained individual receives actual
notice of the order. The order may be enforced anywhere in this
state by a law enforcement agency that receives a true copy of the
order, is shown a copy of it, or has verified its existence on the
law enforcement information network as provided by the C.J.I.S.
policy council act or on an information network maintained by the
Federal Bureau of Investigation.
Sec. 10. (1) Within 24 hours after an extreme risk protection
order is issued, the restrained individual may do either of the
following:
(a) File with the court that issued the order 1 or more proofs
of relinquishment or removal showing that all firearms previously
in the individual's possession or control were relinquished to or
removed by the local law enforcement agency designated under
section 9(1)(h) and that any concealed pistol license was
surrendered to the county clerk as required by the order and
section 8 of 1927 PA 372, MCL 28.428, and verify to the court that
at the time of the verification the individual does not have any
firearms or a concealed pistol license in his or her possession or
control.
(b) Verify to the court that both of the following are true:
(i) At the time the order was issued, the individual did not
have a firearm or a concealed pistol license in his or her
possession or control.
(ii) At the time of the verification, the individual does not
have a firearm or a concealed pistol license in his or her
possession or control.
(2) If a restrained individual has not satisfied the
requirements of subsection (1)(a) or (b) within 24 hours after the
extreme risk protection order was issued, the clerk of the court
that issued the order shall inform the local law enforcement agency
designated under section 9(1)(h) of that fact.
(3) A local law enforcement agency that receives a
notification under subsection (2) shall make a good-faith effort to
determine whether there is evidence that the restrained individual
has failed to relinquish a firearm or concealed pistol license in
the restrained individual's possession or control as required.
(4) At any time while an extreme risk protection order is in
effect, the plaintiff or a law enforcement officer may file an
affidavit with the court that issued the order alleging that the
restrained individual has a firearm or a concealed pistol license
in his or her possession or control. If an affidavit is filed under
this subsection, the court shall determine whether probable cause
exists to believe that the restrained individual has a firearm or
concealed pistol license in his or her possession or control. If
the court finds that probable cause exists, the court shall issue a
warrant describing the firearm or firearms or the concealed pistol
license believed to be in the restrained individual's possession or
control and authorizing a search of the location or locations where
the firearm or firearms or concealed pistol license are believed to
be and the seizure of any firearm or concealed pistol license
discovered by the search.
Sec. 11. The clerk of a court that issues an extreme risk
protection order shall do all of the following immediately after
issuance and without requiring a proof of service on the restrained
individual:
(a) Provide a true copy of the order to the law enforcement
agency designated under section 9(1)(h).
(b) Provide the plaintiff with at least 2 true copies of the
order.
(c) If the restrained individual is identified in the
complaint as an individual described in section 5(4), notify the
individual's employer, if known, of the existence of the order.
(d) Notify the department of state police and the clerk of the
restrained individual's county of residence of the existence of the
order for purposes of performing their duties under 1927 PA 372,
MCL 28.421 to 28.435.
(e) Inform the plaintiff that the plaintiff may take a true
copy of the order to the law enforcement agency designated under
section 9(1)(h) to be immediately entered into the law enforcement
information network and provided to the Federal Bureau of
Investigation and the Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
Sec. 13. (1) An extreme risk protection order must be served
on the restrained individual personally. If the restrained
individual has not been served, a law enforcement officer or clerk
of the court who knows that the order exists may, at any time,
serve the restrained individual with a true copy of the order or
advise the restrained individual of the existence of the order, the
specific conduct enjoined, the penalties for violating the order,
and where the restrained individual may obtain a copy of the order.
(2) The person who serves an extreme risk protection order or
gives oral notice of the order shall file proof of service or proof
of oral notice with the clerk of the court that issued the order.
The clerk of the court shall immediately notify the law enforcement
agency designated under section 9(1)(h) if either of the following
occurs:
(a) The clerk of the court receives proof that the restrained
individual has been served.
(b) The order is rescinded, modified, or extended.
Sec. 15. (1) A law enforcement agency designated in an extreme
risk protection order under section 9(1)(h) that receives a true
copy of the order shall immediately and without requiring proof of
service do both of the following:
(a) Enter the order into the law enforcement information
network as provided by the C.J.I.S. policy council act.
(b) Report the entry of the order to the Criminal Justice
Information Services Division of the Federal Bureau of
Investigation for purposes of the national crime information center
and to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
(2) A law enforcement agency that receives information under
section 13(2) shall enter the information into the law enforcement
information network as provided by the C.J.I.S. policy council act
and report the information to the Federal Bureau of Investigation
and to the Bureau of Alcohol, Tobacco, Firearms, and Explosives as
described in subsection (1)(b).
(3) If an extreme risk protection order has not been served on
the restrained individual, a law enforcement agency or officer
responding to a call alleging a violation of the order shall serve
the restrained individual with a true copy of the order or advise
the restrained individual of the existence of the order, the
specific conduct enjoined, the penalties for violating the order,
and where the restrained individual may obtain a copy of the order.
Subject to subsection (4), the law enforcement officer shall
enforce the order and immediately enter or cause to be entered into
the law enforcement information network and reported to the Federal
Bureau of Investigation and the Bureau of Alcohol, Tobacco,
Firearms, and Explosives that the restrained individual has actual
notice of the order. The law enforcement officer also shall comply
with section 13(2).
(4) In the circumstances described in subsection (3), the law
enforcement officer shall give the restrained individual an
opportunity to comply with the extreme risk protection order before
the law enforcement officer makes a custodial arrest for violation
of the order. The failure by the restrained individual to
immediately comply with the order is grounds for an immediate
custodial arrest. This subsection does not preclude an arrest under
section 15 or 15a of chapter IV of the code of criminal procedure,
1927 PA 175, MCL 764.15 and 764.15a.
(5) The law enforcement agency ordered to seize a firearm
under this act shall do all of the following:
(a) Seize a firearm identified in an order issued under this
act from any place or from any individual who has possession or
control of the firearm.
(b) Seize any other firearms discovered that are owned by or
in the possession or control of the restrained individual or if
allowed under other applicable law.
(6) A law enforcement officer who seizes a firearm under this
act shall give a receipt for the firearm to the individual from
whom it was taken, specifying the firearm in detail. If no
individual is present at the time of seizure, the officer shall
leave the receipt in the place where he or she found the firearm.
(7) The law enforcement agency that seizes a firearm under
this act shall retain and store the firearm subject to order of the
court that issued the extreme risk protection order under which the
firearm was seized. In addition to any other order that the court
determines is appropriate, the court shall order that the firearm
be returned to the restrained individual when the restrained
individual is no longer prohibited from owning a firearm or that
the firearm be transferred to a licensed firearm dealer if the
restrained individual sells or transfers ownership of the firearm
to the dealer.
(8) If any individual other than the restrained individual
claims title to a firearm seized under this act, the firearm must
be returned to the claimant if the court determines that the
claimant is the lawful owner.
Sec. 16. If the court that issues an extreme risk protection
order determines that the restrained individual resides at premises
that are also occupied by another individual who possesses a
firearm, the court may order the other individual to do 1 or more
of the following:
(a) Keep the firearm in a securely locked box or container.
(b) Keep the firearm in a location that a reasonable person
would believe is secure.
(c) Securely lock the firearm with a locking device.
Sec. 17. The plaintiff may move the court to issue, or the
court on its own motion may issue, 1 or more extended extreme risk
protection orders, each effective for 1 year after the expiration
of the preceding order. The court shall only issue an extended
order if there is reasonable cause to believe that the restrained
individual continues to pose a significant risk of personal injury
to himself or herself or others by possessing a firearm. The
plaintiff or the court, as applicable, shall give the restrained
individual written notice of a hearing on a motion to extend the
order.
Sec. 19. (1) An individual who refuses or fails to comply with
an extreme risk protection order is subject to the criminal
contempt powers of the court and, if found guilty, may be
imprisoned for not more than 93 days or may be fined not more than
$500.00, or both. The criminal penalty provided for under this
section may be imposed in addition to a penalty imposed for another
criminal offense arising from the same conduct.
(2) An extreme risk protection order may also be enforced as
contempt of court or otherwise under chapter 17 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.1701 to 600.1745.
(3) A plaintiff who knowingly and intentionally makes a false
statement to the court in the complaint or in support of the
complaint under this act is guilty and subject to penalties as
follows:
(a) For a first offense under this subsection, guilty of a
misdemeanor and subject to imprisonment for not more than 93 days
or a fine of not more than $500.00, or both.
(b) For a second offense under this subsection, guilty of a
felony and subject to imprisonment for not more than 4 years or a
fine of not more than $2,000.00, or both.
(c) For a third or subsequent offense under this subsection,
guilty of a felony and subject to imprisonment for not more than 5
years or a fine of not more than $20,000.00, or both.
Enacting section 1. This act does not take effect unless
Senate Bill No. 157
of the 100th Legislature is enacted into law.