Bill Text: MI SB0856 | 2021-2022 | 101st Legislature | Introduced
Bill Title: Civil procedure: injunctions; extreme risk protection order act; enact. Creates new act. TIE BAR WITH: SB 0857'22
Spectrum: Partisan Bill (Democrat 14-0)
Status: (Introduced - Dead) 2022-02-08 - Referred To Committee On Government Operations [SB0856 Detail]
Download: Michigan-2021-SB0856-Introduced.html
SENATE BILL NO. 856
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".
(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)(j), 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. 857 of the 101st Legislature is enacted into law.
