BillCam

HOUSE BILL No. 4706

June 7, 2017, Introduced by Reps. Wittenberg, Hoadley and Chang 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

"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.

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) "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.

(g) "Law enforcement officer" means an individual who is any

of the following:

(i) A police officer certified under the Michigan commission

on law enforcement standards act, 1965 PA 203, MCL 28.601 to

28.615.

(ii) A sheriff.

(iii) A deputy sheriff.

(iv) A member of the department of state police.

(v) A federal law enforcement officer.

(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.

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.

(h) 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 weapon and is required to carry a

weapon as a condition of his or her employment, 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 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

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 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.

(2) If the plaintiff in an action filed under section 5 is an

individual described in section 5(2)(g), the court shall not issue

the extreme risk protection 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 an

extreme risk protection 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 an extreme risk protection 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 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) 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.

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, an extreme risk protection

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) 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.

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)(c).

(b) Provide the plaintiff with at least 2 true copies of the

order.

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

information network.

Sec. 13. (1) An extreme risk protection 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 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)(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 an extreme

risk protection 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 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 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 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 extreme risk protection 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 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 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 extreme risk

protection 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

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

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. 4707 (request no. 01604'17 a

**) of the 99th Legislature is enacted into law.