Bill Text: MI SB0083 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Civil procedure: injunctions; extreme risk protection order act; enact. Creates new act. TIE BAR WITH: HB 4146'23, HB 4147'23
Spectrum: Partisan Bill (Democrat 20-0)
Status: (Passed) 2023-05-23 - Assigned Pa 0038'23 [SB0083 Detail]
Download: Michigan-2023-SB0083-Introduced.html
SENATE BILL NO. 83
the people of the state of michigan enact:
Sec. 1. This act may be cited as the "extreme risk protection order 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 individual 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 7.
(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 sheriff's department.
(ii) The department of state police.
(iii) A police department of a township, village, or incorporated city.
(iv) The public safety department of an institution of higher education created under or described in article VIII of the state constitution of 1963.
(v) The public safety department of a community or junior college.
(vi) The public safety department or office of a private college.
(g) "Law enforcement officer" means an individual to whom any of the following apply:
(i) The individual is employed by a law enforcement agency to enforce the criminal laws of this state.
(ii) The individual is a county prosecuting attorney or assistant prosecuting attorney.
(h) "Mental health professional" means that term as defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b.
(i) "Plaintiff" means the individual who requests an extreme risk protection order in an action under section 5.
(j) "Possession or control" includes, but is not limited to, actual possession or constructive possession by which the individual has the right to control the firearm, even though the firearm is in a different location than the individual. Possession or control does not require the individual to own the firearm.
(k) "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 defendant.
(f) A family member.
(g) A law enforcement officer.
(h) A mental health professional.
(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 the defendant or others by possessing a firearm.
(4) If the defendant is issued a license to carry a concealed pistol and is 1 of the following individuals, and if the plaintiff knows the defendant is 1 of the following individuals, the plaintiff shall state that in the complaint:
(a) An individual who is required to carry the pistol as a condition of the individual's employment.
(b) A police officer licensed or certified under the Michigan commission on law enforcement standards act, 1965 PA 203, MCL 28.601 to 28.615.
(c) A sheriff.
(d) A deputy sheriff.
(e) A member of the department of state police.
(f) A local corrections officer.
(g) An employee of the department of corrections.
(h) A federal law enforcement officer who carries the pistol during the normal course of the officer's employment.
(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.
(7) Any of the following is a proper county in which to file an action under this section:
(a) A county in which the defendant resides, has a place of business, or conducts business.
(b) Unless the plaintiff is a law enforcement officer, a county in which the plaintiff resides, has a place of business, or conducts business.
Sec. 6. (1) 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.
(2) The court may enter an order to change the venue of an action filed under section 5 for any reason allowed under the Michigan court rules, including, but not limited to, the convenience of the parties and witnesses. The court may consider the location of firearms owned or possessed by the defendant in deciding whether to enter an order under this subsection.
(3) The court may allow proceedings in an action filed under section 5 to be conducted using video conferencing technology or communication equipment as allowed under Michigan court rules and administrative orders.
Sec. 7. (1) In an action under section 5, the court shall issue an extreme risk protection order if the court determines by the preponderance of the evidence that the defendant poses a significant risk of personal injury to the defendant or others by possessing a firearm. In making its determination under this subsection, the court shall consider all of the following:
(a) Any history of use, attempted use, or threatened use of physical force by the defendant against another individual, or against the defendant, regardless of whether the violence or threat of violence involved a firearm.
(b) Any evidence of the defendant being seriously mentally ill.
(c) Any previous or existing extreme risk protection order under this act, or personal protection order under section 2950 or 2950a of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a, issued against the defendant.
(d) Any violation by the defendant of a previous or existing extreme risk protection order issued under this act.
(e) Any violation by the defendant of a previous or existing personal protection order issued under section 2950 or 2950a of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a.
(f) Any previous conviction of the defendant for any of the following:
(i) A misdemeanor violation of section 81 of the Michigan penal code, 1931 PA 328, MCL 750.81.
(ii) A violation of section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i, or a similar offense in another jurisdiction.
(iii) An offense constituting domestic violence.
(iv) An offense involving cruelty or abuse of animals.
(g) Any evidence of recent unlawful use of controlled substances by the defendant.
(h) Any previous unlawful and reckless use, display, or brandishing of a deadly weapon by the defendant.
(i) Any evidence of an acquisition or attempted acquisition within the previous 180 days by the defendant of a deadly weapon or ammunition.
(j) Any additional information the court finds to be reliable, including a statement by the defendant, or relevant information from family and household members concerning the defendant.
(k) 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. If the plaintiff requests the court to issue an extreme risk protection order under this subsection, the court shall make its determination on the request not later than 24 hours after the request is filed.
(3) If a court issues an extreme risk protection order under subsection (2), the court shall conduct a hearing on the order as follows:
(a) Unless subdivision (b) applies, not later than 14 days after the order is served on the restrained individual or after the restrained individual receives actual notice of the order.
(b) If the restrained individual is an individual described in section 5(4), not later than 5 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 1 motion to modify or rescind the order during the time the order is in effect under section 9(1)(i), and 1 motion to modify or rescind an extended order during the time the extended order is in effect under section 17 or 19. If the restrained individual files more than 1 motion during a time described in this subsection, the court shall review the motion before a hearing on the motion is held and may summarily dismiss the motion without a response from the plaintiff and without a hearing.
(5) At a hearing on a motion under subsection (4), the individual restrained under the extreme risk protection order must prove by the preponderance of the evidence that the restrained individual does not pose a significant risk of personal injury to the restrained individual or others by possessing a firearm.
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. That if the individual has been issued a license under section 2 of 1927 PA 372, MCL 28.422, that the individual has not used and that is not yet void, the individual shall not use it and shall surrender it to the law enforcement agency designated under subdivision (g).
(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, immediately after being served with the order, surrender all firearms in the individual's possession or control to the law enforcement agency designated under subdivision (g).
(d) If the plaintiff has identified any firearms under section 5(5), a specific description of the firearms to be surrendered or seized.
(e) If the order is issued under section 7(2), a statement that a hearing will be held within 14 days or 5 days, as applicable under section 7(3), 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.
(f) 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.
(g) 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.
(h) A statement that violation of the order will subject the restrained individual to immediate arrest, the contempt powers of the court, an automatic extension of the order, and misdemeanor or criminal penalties, including imprisonment for up to 93 days for an initial violation and up to 5 years for a subsequent violation.
(i) An expiration date that is 1 year after 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) Not later than 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)(g) 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 the individual's 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 the individual's possession or control.
(ii) At the time of the verification, the individual does not have a firearm or a concealed pistol license in the individual's 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)(g) 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) The court shall schedule a compliance hearing to be held not later than 10 days after an extreme risk protection order is served on the restrained individual or after the restrained individual receives actual notice of the order. If the restrained individual has satisfied the requirements of subsection (1)(a) or (b) before the hearing, the court may cancel the hearing.
(5) 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 the individual's 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 the individual's possession or control. If the court finds that probable cause exists, the court shall find the restrained individual in contempt of court and issue an arrest warrant. The court shall also enter an accompanying order describing the firearm or firearms or the concealed pistol license believed to be in the restrained individual's possession or control and authorizing a designated law enforcement agency to search the location or locations where the firearm or firearms or concealed pistol license is believed to be and to seize 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)(g).
(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)(g) 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 by a law enforcement officer. If the restrained individual has not been served, a law enforcement officer 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 law enforcement officer 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)(g) if any of the following occur:
(a) The clerk of the court receives proof that the restrained individual has been served.
(b) The order is rescinded, modified, or extended.
(c) The order expires without being extended.
Sec. 15. (1) A law enforcement agency designated in an extreme risk protection order under section 9(1)(g) 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 the officer 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 extreme risk protection order expires, unless the restrained individual is prohibited for another reason from owning or possessing a firearm, or order that the firearm be transferred to a licensed firearm dealer if the restrained individual sells or transfers ownership of the firearm to the dealer. Before returning a firearm to the restrained individual under this subsection, and to determine whether the restrained individual is prohibited from owning or possessing a firearm for another reason, the law enforcement agency shall conduct a verification under the law enforcement information network and the national instant criminal background check system in the same manner as required under section 5b(6) of 1927 PA 372, MCL 28.425b.
(8) A law enforcement agency that returns a firearm to a restrained individual under subsection (7) shall enter into the law enforcement information network and notify the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, Firearms, and Explosives that the court has ordered the firearm returned on expiration of the extreme risk protection order.
(9) Subject to subsection (7) or (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 shall order the other individual to not leave the firearm out of the other individual's immediate possession or control unless the other individual does 1 or more of the following:
(a) Keeps the firearm in a securely locked box or container that is inaccessible to the restrained individual.
(b) Securely locks the firearm with a locking device that is inaccessible to the restrained individual.
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 under this section if the preponderance of the evidence shows that the restrained individual continues to pose a significant risk of personal injury to the restrained individual 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 guilty and subject to penalties as follows, which may be imposed in addition to a penalty imposed for another criminal offense arising from the same conduct:
(a) For a first offense under this subsection, guilty of a misdemeanor punishable by 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 punishable by 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 punishable by imprisonment for not more than 5 years or a fine of not more than $20,000.00, or both.
(2) If a court or a jury finds that the restrained individual has refused or failed to comply with an extreme risk protection order, the court that issued the order shall issue an extended extreme risk protection order effective for 1 year after the expiration of the preceding order.
(3) 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.
(4) 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 punishable by 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 punishable by 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 punishable by imprisonment for not more than 5 years or a fine of not more than $20,000.00, or both.
(5) An individual who knowingly places a firearm in the possession of an individual who is restrained under an extreme risk protection order is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.
Sec. 20. (1) The state court administrative office, acting at the direction of the supreme court, shall prepare an annual report on and relating to the application of this act by the courts.
(2) The report required by this section must contain all of the following:
(a) The number of actions filed for extreme risk protection orders.
(b) The number of requests made for extreme risk protection orders to be issued without notice under section 7(2).
(c) The number of extreme risk protection orders issued and the number denied.
(d) The number of extreme risk protection orders issued without notice under section 7(2) and the number denied.
(e) The number of extreme risk protection orders that are rescinded.
(f) The number of extreme risk protection orders entered without notice under section 7(2) that are rescinded.
(g) The number of extreme risk protection orders that are renewed.
(h) To the extent ascertainable from available state court data, the number of individuals who are restrained under an emergency risk protection order who, within 30 days after entry of the order, are charged with a criminal offense, giving the nature of the criminal offense, whether it was an offense for the violation of the emergency risk protection order, and the disposition or status of the offense.
(i) Demographic data regarding the individuals who are plaintiffs and defendants in actions for extreme risk protection orders.
Enacting section 1. This act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:
(a) Senate Bill No. 84.
(b) Senate Bill No. 86.
