Red Flag Laws in Michigan
Michigan permits law enforcement officers, friends, and family to petition for Extreme Risk Protection Orders, which allow police to seize someone’s firearms.
What are Extreme Risk Protection Orders or Red Flag Laws?
The Extreme Risk Protection Act (ERPO) permits Courts to issue restraining orders preventing certain individuals from possessing or purchasing firearms and ordering them to surrender their firearms. If a restrained person refuses to surrender their firearms, police will seize them. People often refer to laws permitting firearms restraining orders as Michigan’s “Red Flag Laws.” ERPO restraining orders expire after one year, unless extended by a judge (extension can be as long as one year).
Who can file for a red flag law firearm restraining order?
ERPO provides that any of the following people can file a Red Flag Law complaint for a firearm restraining order:
- spouse
- former spouse
- individual with a child in common
- individual with a current or former dating relationship
- roommate or family member
- guardian
- law enforcement officer
- healthcare provider
What must be in a red flag law complaint?
A complaint under ERPO must be filed in the Family Division of the Circuit Court along with a proposed order. Someone can attempt to file an ERPO on their own or with the assistance of a retained lawyer. The complaint or petition must state facts sufficient to show that issuance of a red flag law restraining order is necessary because:
- the individual can reasonably be expected within the near future to injure themselves or another person with a firearm, or
- the individual has engaged in an act or made significant threats that substantially support an expectation of imminent harm.
A complaint for a restraining order must state if the individual is required to possess a firearm for employment, such as a law enforcement officer, corrections officer, or someone with a Concealed Pistol Permit (CPL) who carries a pistol for work.
Burden of Proof
The judge must grant the ERPO if they find a preponderance of evidence that the individual can be expected to harm themselves or someone else and has engaged in acts or made threats that support that expectation.
Possession or Ownership of Firearms is NOT Required
A complaint can be filed regardless of whether the individual owns or possesses firearms. If the person has firearms, the complaint must state as much as the petitioner knows about them, including their location.
Hearing Required
After filing an ERPO complaint, the respondent must be notified and given a hearing on the red flag petition within 14 days.
Ex-Parte Petition for a Firearm Restraining Order
If the risk of a firearm-related incident with the individual is urgent, the petitioner can request an immediate restraining order that doesn’t give the individual an opportunity to respond until a later time. A request for an emergency restraining order is called “ex parte.” A complaint for an ex parte restraining order under Michigan’s red flag law must be detailed and provide sufficient information about the imminent threat to persuade the judge to grant an immediate restraining order. The judge must decide whether to grant an ERPO within one day.
A judge may grant an ex parte ERPO if they determine by “clear and convincing evidence” that (1) an immediate and irreparable injury, loss, or damage will result from the delay required to give notice and (2) the notice itself will precipitate an adverse reaction from the individual.
The judge must state the reasons for granting or denying the ex parte ERPO request in writing. If the request is denied, the petitioner has 21 days to request a hearing.
How does the court decide whether to issue a firearm restraining order?
A judge must consider several factors when deciding whether to grant a request for a firearm restraining order under Michigan’s red flag law. Some of the factors include the following:
- Physical Force: Does the individual have a history of use, attempted use, or threatened use of physical force, regardless of whether it involved a firearm?
- Serious Mental Illness or Emotional Disturbance: Does the individual have a “serious mental illness” or “serious emotional disturbance,” as defined under Michigan law, that makes them dangerous?
- Prior Criminal History: Does the individual have assaultive, stalking, or threatening convictions involving another person, a domestic relationship, or an animal, and/or a conviction for a “serious misdemeanor.”
- Drug and Alcohol Abuse: Does the individual have a history of recent abuse of unlawful controlled substances or alcohol?
- History of ERPO or PPO Violations: Has a judge previously found the individual responsible for an ERPO or PPO violation?
- Prior Restraining or Supervision Orders: Was the individual previously subject to a red flag or ERPO restraining order, a personal protection order (PPO), a pretrial release, probation or parole order, or any other injunctive order?
- History of Unlawful Possession of Firearms or Ammunition: Has the individual been convicted of an offense involving the unlawful possession, use, display, or brandishing of a weapon or firearm? Is there evidence the individual acquired or attempted to acquire a deadly weapon or ammunition within the previous 180 days?
- Catchall Provision: The judge can consider any other relevant information.
Law Enforcement Emergency Requests for an ERPO Restraining Order
A police officer can verbally request an ERPO restraining order via telephone if (1) the officer is responding to a complaint involving the purportedly dangerous individual and (2) that person can reasonably be expected to cause someone serious injury with a firearm imminently. The law requires the judge to grant or deny the verbal request immediately.
What does a red flag law restraining order do?
Under ERPO, a restrained individual must surrender all firearms in their possession or control within 24 hours or immediately, depending on the court’s order. The person must not purchase or possess new firearms and must surrender their CPL. If the order was issued ex parte, the order must state that the respondent has a right to request a hearing and termination or modification of the order.
Court-Mandated Surrender of Firearms
If the judge orders the respondent to surrender their firearms, they must surrender them to the designated law enforcement agency within 24 hours or a federal firearm dealer if the court permits that. Michigan law presumes the order requires surrender unless the respondent is a law enforcement officer or health care provider.
An ERPO that requires the surrender of firearms must only be served on the respondent by law enforcement offices, not a process server or anyone else. If the restrained individual does not surrender their firearms, the law enforcement officer must file an Affidavit for Anticipatory Search Warrant, obtain a court order, and seize them. A court must grant a search warrant for the individual’s firearms if there is probable cause to believe they refused to comply, and the firearms will be found in the proposed location.
If the restrained individual complies with the mandatory surrender of their firearms or does not have firearms or a CPL, they must file a fully completed “Verification of Compliance” with the court within 24 hours.
What if someone violates an ERPO firearms restraining order?
Someone found to have violated an ERPO is subject to immediate arrest, contempt of court, an automatic extension of the restraining order, and criminal penalties. Someone accused of an ERPO violation has a RIGHT to an attorney.
If there is an allegation of noncompliance by a law enforcement officer or prosecutor, they can file a Motion to Show Cause or other affidavit with the court alleging the violation. If the judge finds probable cause to believe there is a violation, they can issue an arrest warrant for the restrained individual and a Search Warrant for any suspected firearms, ammunition, or a CPL.
Reclaiming Surrendered or Seized Firearms
Someone who voluntarily surrendered or had their guns seized can reclaim their firearms when the ERPO expires or is terminated. If that person is otherwise prohibited from possessing firearms, the law enforcement agency must permit their transfer if sold to a licensed federal firearm dealer. Unclaimed guns are subject to destruction by law enforcement.
If someone other than the restrained individual claims lawful ownership of the firearms, they must be given to the complainant if the court determines they are the lawful owner.
Motions to Modify or Terminate ERPO Under Michigan’s Red Flag Law
A petitioner or respondent can file a Motion to Modify or Terminate a red flag law ERPO order. The restrained individual can file one Motion to Terminate within the first six (6) months of the order’s entry and another in the second six months. A Motion to Modify can be filed within a year. If an order is entered extending the ERPO, the respondent is given additional opportunities to request termination or modification. A hearing on a motion must be heard within 14 days, and the filing party bears the burden of proof.
Criminal Charges for an ERPO Violation
There are several felony and misdemeanor crimes created under the Extreme Risk Protection Orders (ERPO) law. Here are some examples:
- ERPO Violation: An individual who refuses or fails to comply with a red flag ERPO order is guilty of a felony. A first offense is punishable by up to one year in jail, a second offense carries a maximum sentence of four (4) years, and a third or subsequent violation has a five (5) year maximum prison sentence. In addition to jail or prison, the court can order fines, costs, and years of probation with onerous and challenging terms and conditions.
- Permitting Restrained Person to Possess Firearms: Anyone who permits someone restrained from possessing a firearm under ERPO to have a gun is guilty of a “felony” punishable by imprisonment for not more than one year, fines, and probation.
- Contempt: A judge who finds someone violated an ERPO can hold them in contempt of court.
- False Statement in ERPO Complaint: Someone who makes a false statement in a complaint for a red flag law ERPO is guilty of either a felony or misdemeanor. A first offense is a 93-day misdemeanor. A second offense is a four (4) year felony, and a third or subsequent offense is a five (5) year felony.
Anyone facing possible charges under ERPO should contact a qualified, experienced, affordable criminal defense attorney immediately. Time is of the essence. With proactive intervention, a skilled pre-charge lawyer might be able to prevent a felony or misdemeanor charge.
Attorney for Michigan Red Flag Laws and Extreme Risk Protection Orders (ERPO)
The attorneys with LEWIS & DICKSTEIN, P.L.L.C. have worked with clients facing firearm charges and those seeking restraining orders for decades. If someone files an ERPO against you under Michigan’s red flag law, we can either request termination or modification of the order or fight to prevent the entry of the ERPO red flag order. Conversely, if you are concerned for the safety or welfare of someone who might harm themselves or others with a firearm, we can assist you with filing an ERPO complaint. Call us for a free consultation. We will take the time to talk with you and answer your questions. We will find a way to help you.
Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you and, most importantly,
we are not afraid to win!
