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.
Red Flag Law. House Bill 4145 would, among other things, do all of the following: • Create the Extreme Risk Protection Order Act. • Require a court to issue an extreme risk protection order (ERPO) if a preponderance of the evidence existed to support that a defendant poses a significant risk of self-injury or injury to others by possessing a firearm and allow for an emergency ERPO without first notifying the defendant under certain circumstances. • Prohibit a restrained individual from possessing a firearm or a license to carry a concealed pistol (CPL) while an ERPO is in effect. • Specify who may file an action for a court to issue an ERPO, where and how an action may be filed, and the information a complaint must contain. • Prescribe actions a clerk of an issuing court, a law enforcement officer, and a law enforcement officer must follow regarding an ERPO. • Specify the information that must be included in an ERPO, including that the restrained individual may not possess a firearm while the ERPO is in force. • Require hearings to be held as prescribed in the bill. • Allow an ERPO to be modified or rescinded. • Allow a firearm if not relinquished or license to carry a concealed pistol if not surrendered to be seized upon notification or service of an ERPO, require a receipt be given for any firearm seized, require a seized firearm to be stored while the ERPO is in force, and require the firearm to be returned when the ERPO expires or is rescinded, if the individual is not otherwise prohibited from owning or possessing a firearm. • Prescribe penalties for a violation. House Bill 4146 would include references to the Extreme Risk Protection Order Act and ERPOs in provisions regarding a license to purchase, possess, carry, or transport a pistol and eligibility for a concealed pistol license. House Bill 4147 would prohibit a fee from being charged or collected for serving process issued in an action brought under the Extreme Risk Protection Order Act and amend provisions regarding service of process in civil actions to conform with provisions in the Extreme Risk Protection Order Act. House Bill 4148 would place the maximum term of imprisonment for a felony violation created by the Extreme Risk Protection Order Act in the sentencing guidelines.
Co-sponsored by Reps.
Referred to the Committee on Judiciary
Reported with substitute H-5
Substitute H-5 concurred in by voice vote
1. Amend page 6, line 28, by striking out “the preponderance of the” and inserting “clear and convincing”.
2. Amend page 10, line 29, by striking out “restrained individual must prove by a preponderance of the” and inserting “court must enter an order terminating the extreme risk protection order unless the court finds by clear and convincing”.
3. Amend page 11, line 1, after “individual” by striking out “no longer poses” and inserting “continues to pose”.
4. Amend page 21, line 25, after “if” by striking out “the preponderance of the” and inserting “clear and convincing”.
The amendment failed by voice vote
1. Amend page 4, line 2, after “respondent” by inserting “who was married to the respondent in the previous 3 years”.
2. Amend page 4, line 5, after “had” by inserting “in the previous 3 years”.
3. Amend page 4, line 7, after “has” by inserting “in the previous 3 years”.
The amendment failed by voice vote
1. Amend page 6, following line 11, by inserting:
“(2) In an action under section 5, before the court may issue an extreme risk protection order, the court shall hold a hearing in which the petitioner must appear and testify under oath. If the petitioner fails or refuses to appear or testify under oath as to the allegations in the complaint, the court shall dismiss the action.” and renumbering the remaining subsections.
The amendment failed by voice vote
1. Amend page 25, following line 19, by inserting:
“Sec. 26. (1) If, at any time while an extreme risk protection order is in effect, the restrained individual obtains a report from a mental health professional that, in the professional opinion of the mental health professional, the restrained individual does not pose a significant risk of personal injury to the restrained individual or others by possessing a firearm, the restrained individual may file the report with the court that issued the extreme risk protection order.
(2) If a report is filed with the court under subsection (l), the court shall issue an order rescinding the extreme risk protection order.”.
The amendment failed by voice vote
1. Amend page 13, line 22, after “a” by striking out the balance of the line through “attorney” on line 23 and inserting “guaranteed right to counsel”.
2. Amend page 25, following line 19, by inserting:
“Sec. 22. Every respondent in an action under section 5 must be guaranteed the right to counsel at all stages of the action.”.
The amendment failed by voice vote
1. Amend page 25, following line 19, by inserting:
“Sec. 24. The court shall conduct all hearings in an action filed under section 5 on the record and shall have a transcript prepared of all hearings so that a copy of the transcript is available to be produced on request.”.
The amendment failed by voice vote
1. Amend page 5, line 29, after “(8)” by striking out the balance of the section and inserting “An action under this section must be filed in the county where the respondent resides.”.
The amendment failed by voice vote
1. Amend page 25, following line 19, by inserting:
“Sec. 27. A petitioner who knowingly and intentionally makes a false statement to the court in the complaint or in support of the complaint under this act must pay all legal fees or court fees incurred by the respondent as a result of the complaint.”.
The amendment failed by voice vote
1. Amend page 4, line 20, after “show” by striking out “that” and inserting “both of the following:
(a) That 1 or both of the following apply:
(i) The respondent is receiving treatment because of having been determined to be a person requiring treatment under sections 434 to 439 of the mental health code, 1974 PA 258, MCL 330.1434 to 330.1439.
(ii) A personal protection order under section 2950 or 2950a of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and 2950a, is in force against the respondent.
(b) That”.
2. Amend page 6, line 28, after “that” by inserting “the allegations under section 5(3)(a) are true and that”.
The amendment failed by voice vote
Substitute H-7 offered
by
The substitute passed by voice vote
Passed in the House 56 to 51 (details)
Motion to give immediate effect
by
The motion prevailed by voice vote
Referred to the Committee on Civil Rights, Judiciary, and Public Safety
