HOUSE BILL No. 4283

 

 

February 28, 2019, Introduced by Reps. Wittenberg, Hoadley, Brixie, Rabhi, Kuppa, Koleszar, Warren, Hope, Hood, Manoogian, Pohutsky, Gay-Dagnogo, Hammoud, Pagan, Brenda Carter, Bolden, Clemente, Tyrone Carter, Peterson, Tate, Sowerby and Kennedy 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 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. __ or House Bill No. 4284 (request no. 00488'19 a

 

****) of the 100th Legislature is enacted into law.