Bill Text: MI HB4942 | 2015-2016 | 98th Legislature | Introduced
Bill Title: Civil procedure; injunctions; gun violence restraining order act; enact. Creates new act. TIE BAR WITH: HB 4943'15
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2015-10-07 - Printed Bill Filed 10/07/2015 [HB4942 Detail]
Download: Michigan-2015-HB4942-Introduced.html
HOUSE BILL No. 4942
October 6, 2015, Introduced by Rep. Wittenberg 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
must 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 may also be enforced
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. 4943 (request no. 04044'15 a)
of the 98th Legislature is enacted into law.
