HOUSE BILL No. 5688

 

June 12, 2014, Introduced by Rep. Hobbs and referred to the Committee on Judiciary.

 

     A bill to provide for the issuance of restraining orders

 

prohibiting certain individuals from possessing or purchasing

 

firearms and ordering the 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 "gun

 

violence restraining 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 a gun violence

 

restraining order is requested in an action under section 5.

 

     (d) "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.

 

     (e) "Federal law enforcement officer" means an officer or

 

agent employed by a law enforcement agency of the United States

 

government whose primary responsibility is the enforcement of laws

 

of the United States.

 

     (f) "Gun violence restraining order" means an order issued by

 

a court under section 9.

 

     (g) "Plaintiff" means the individual who requests a gun

 

violence restraining order in an action under section 5.

 

     (h) "Restrained individual" means the individual against whom

 

a gun restraining 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 a

 

gun violence restraining 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) Another individual who has a close relationship with the

 

defendant. If the plaintiff files a complaint under this

 

subdivision, the plaintiff shall state in the complaint sufficient

 

facts to allow the court to determine whether the individual has a

 

close relationship with the defendant.

 

     (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 a gun

 

violence restraining 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 weapon and is required to carry a

 

weapon as a condition of his or her employment, a police officer

 

certified by the commission on law enforcement standards act, 1965


 

PA 203, MCL 28.601 to 28.616, a sheriff, a deputy sheriff, a member

 

of the department of state police, a local corrections officer, an

 

employee of the department of corrections, or a federal law

 

enforcement officer 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 requests the court to issue an order

 

seizing firearms owned by the defendant, the plaintiff shall

 

identify the firearms that the plaintiff knows are in the

 

possession of the defendant.

 

     Sec. 7. (1) In an action under section 5, the court may issue

 

a gun violence restraining 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 offered in support

 

of the request for the gun violence restraining 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) If the plaintiff in an action filed under section 5 is not

 

an individual described in section 5(2)(a) to (f), the court shall

 

not issue the gun violence restraining order unless the court

 

determines that the plaintiff has a close enough relationship with

 

the defendant to justify the issuance of the order.


 

     (3) The court in an action under section 5 may issue a

 

gun violence restraining order without written or oral notice to

 

the defendant if the court determines that clear and convincing

 

evidence has been submitted under oath or affirmation that

 

irreparable injury will result from the delay required to

 

effectuate notice or that the notice will itself precipitate

 

adverse action before a gun violence restraining order can be

 

issued.

 

     (4) A restrained individual under an order issued under

 

subsection (3) may file a motion to modify or rescind the order and

 

request a hearing under supreme court rules. The motion to modify

 

or rescind the order must be filed within 14 days after the order

 

is served on the restrained individual or after the restrained

 

individual receives actual notice of the order, unless good cause

 

is shown for filing the motion after the 14 days have elapsed.

 

     (5) The court shall conduct a hearing on a motion under

 

subsection (4) within 14 days after the motion is filed. If the

 

restrained individual is an individual described in section 5(4),

 

the court shall conduct a hearing on a motion under subsection (4)

 

within 5 days after the motion is filed.

 

     Sec. 9. (1) If the court determines under section 7 that a gun

 

violence restraining 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) If the order is issued under section 7(3), a statement

 

that the restrained individual may file a motion to modify or


 

rescind the order and request a hearing within 14 days after the

 

restrained individual is served with or receives actual notice of

 

the order and that motion forms and filing instructions are

 

available from the clerk of the court.

 

     (c) A designation of the law enforcement agency that is

 

responsible for entering the order into the law enforcement

 

information network as provided by the C.J.I.S. policy council act.

 

     (d) 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.

 

     (e) An expiration date that is not more than 1 year from the

 

date of issuance.

 

     (2) In the discretion of the court, a gun violence restraining

 

order may include an order to a law enforcement agency to seize

 

firearms in the possession of the restrained individual. An order

 

issued under this subsection must specifically describe the

 

firearms to be seized. The court may also order that a law

 

enforcement agency seizing firearms under this subsection may seize

 

any other firearms discovered that belong to or are in the

 

possession of the restrained individual.

 

     (3) A gun violence restraining 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.

 

     Sec. 11. The clerk of a court that issues a gun violence

 

restraining 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)(c).

 

     (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 concealed weapon licensing board in the

 

restrained individual's county of residence of the existence of the

 

order.

 

     (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)(c) to be immediately entered into the law enforcement

 

information network.

 

     Sec. 13. (1) A gun violence restraining order must be served

 

on the restrained individual by any method allowed under Michigan

 

court rules. 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 a gun violence restraining 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)(c) 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 a gun

 

violence restraining order under section 9(1)(c) that receives a

 

true copy of the order shall immediately and without requiring

 

proof of service enter the order into the law enforcement

 

information network as provided by the C.J.I.S. policy council act.

 

     (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.

 

     (3) If a gun violence restraining 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 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 gun violence restraining 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 section 9(2) may seize a firearm identified in the order from

 

any place or from any individual who has possession of the firearm.

 

The law enforcement agency may also seize any other firearms

 

discovered that are owned by or in the possession of the restrained

 

individual if so provided in the gun violence restraining order, or

 

if allowed under other applicable law.

 

     (6) A law enforcement officer who seizes a firearm under

 

subsection (5) 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

 

subsection (5) shall retain the firearm subject to order of the

 

court that issued the gun violence restraining 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 the location to be searched during the seizure of a

 

firearm under subsection (5) is jointly occupied by multiple

 

individuals, a firearm is located during the search, and it is

 

determined that the firearm is owned by an individual other than

 

the restrained individual, the law enforcement agency shall not

 

seize the firearm if all of the following conditions are satisfied:

 

     (a) The firearm is stored so that the restrained individual

 

does not have access to or control of the firearm.

 

     (b) There is no evidence of unlawful possession of the firearm

 

by the owner.

 

     (9) If the location to be searched during the seizure of a

 

firearm under subsection (5) is jointly occupied by multiple

 

individuals, a gun safe is located at the location, it is

 

determined that the gun safe is owned by an individual other than

 

the restrained individual, and a valid search warrant has not been

 

obtained, the law enforcement agency shall not search the gun safe


 

except in the owner's presence or with the owner's consent.

 

     (10) If any individual other than the restrained individual

 

claims title to a firearm seized under subsection (5), the firearm

 

shall be returned to the claimant if the court determines that the

 

claimant is the lawful owner.

 

     Sec. 17. The plaintiff may move the court to issue, or the

 

court on its own motion may issue, 1 or more extended gun violence

 

restraining orders, each effective for up to 1 year after the

 

expiration of the preceding order. The court shall only issue an

 

extended order if there is probable 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

 

a gun violence restraining 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) A gun violence restraining order is also enforceable 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 is subject to the contempt powers of the court.

 

     Enacting section 1. This act does not take effect unless

 

Senate Bill No.____ or House Bill No. 5689 (request no. 05728'14 a)

 

of the 97th Legislature is enacted into law.