PROTECTING YOURSELF AGAINST MICHIGAN’S NEW FIREARM PERSONAL PROTECTION ORDERS
Gun owners and people who possess firearms have a new Michigan firearms law that could result in the confiscation of their rifles and pistols based on speculation, suspicion, rumor, and even outright lies. On February 13, 2024, the Extreme Risk Protection Order Act is enacted. Originally designed to prevent the mentally ill from possessing guns, the Act represents the weaponizing of the legal system to grab guns from private citizens. And if the person responsible for getting the order is caught lying, they only face a misdemeanor charge. On the other hand, if an order is issued against you and you violate it, you can be charged with a felony!
Think of it as a Personal Protection Order for guns, known as a PPO. In many ways, the legal procedure for an Extreme Risk Protection Order mirrors the standard PPO law in Michigan. However, unlike a regular PPO that typically prevents someone from being near another person and limits other behaviors, the new firearm or gun PPO commands law enforcement to seize your guns.
UNDERSTANDING THIS NEW MICHIGAN FIREARMS LAW
Any of the following persons may petition the Family Division of a local Michigan Circuit Court (generally, each MI county has a Circuit Court) for a court order stripping a private citizen of his or her lawfully possessed firearms – including rifles and pistols – and if they have one, their lawfully obtained Concealed Pistol License. It does not take much to imagine a situation where someone on this list may have an axe to grind with the person against whom an order is issued. And if they lie to get the order, they are only responsible for a misdemeanor. But if you violate a gun PPO, you can be charged with a felony.
- Spouse or former spouse
- Person with a child in common
- Person in a current or former dating relationship
- Person currently or formerly residing in the same household
- Family member – parent, child, sibling, grandparent, grandchild, uncle/aunt, first cousin
- Law Enforcement Officer
- Health care provider
Extreme Risk Protection Orders / Gun and Firearm PPOs can be issued without you knowing! The law allows for someone to get an order without notice to the gun owner. And hearings do not need to be face-to-face. Judges have the discretion to permit any hearing to be held via Zoom. So much for the constitutional guarantee of being able to confront your accuser.
Most of the time, Courts have the discretion to issue orders. However, with a Gun / Firearm PPO, the Court SHALL ISSUE an extreme risk protection order if the Court finds by a PREPONDERANCE OF THE EVIDENCE that the respondent can REASONABLY be expected within the NEAR FUTURE to intentionally or UNINTENTIONALLY seriously physically injury someone by possessing a firearm. The law is supposed to require that the person has engaged in an act or made significant threats (not a threat) that are substantially supportive of the expectation.
A glaring issue with this new law is that it deprives someone of their property and rights according to gun laws based on a preponderance of the evidence, which means many lawyers think of it as 51% of the evidence. This starkly contrasts proof beyond a reasonable doubt, which is required for a criminal conviction.
Also, how is a Court supposed to determine whether the respondent can “reasonably be expected” to hurt someone or themselves? What is reasonable to one person may be unreasonable to another. Prepare for a wide variation of what may be considered “reasonable.”
And what constitutes the “near future”. How many days, weeks, or months are considered the “near future”? None of this is defined in the new law, which allows judges and law enforcement to make up the rules as they go.
And how does someone “unintentionally” injure someone else? You can have your guns taken away if someone thinks you may accidentally hurt someone.
Extreme Risk Protection / Gun and Firearm PPOs are an anticipatory order. They only require suspicion to strip someone of their property. It’s based on what someone thinks may happen, not on what has happened. They are based on a crystal ball and fortune telling, not evidence.
In deciding whether to issue a Gun PPO, the Court is supposed to consider all of the following:
a. History of the use or threatened use of physical force;
b. ANY evidence that the respondent has a SERIOUS MENTAL ILLNESS or SERIOUS
In deciding whether to issue a Gun PPO, the Court is supposed to consider all of the following:
c. Prior or current
- Extreme risk protection order
- Pretrial release order (bond order on a criminal case)
- Probation order
- Parole order
- Any injunctive order
- Prior convictions or pending charges for:
iii. Threat to person or property
iv. Crime against a spouse or intimate partner
v. Cruelty to animals
vi. A serious misdemeanor (MCL 780.811)
- Any evidence of recent unlawful use of controlled substances
- Any recent abuse of alcohol
- Any previous unlawful possession, use, display, brandishing of a deadly weapon
- Any evidence of acquisition or attempted acquisition of a deadly weapon or ammo in the last 180 days.
- Any additional information the court deems reliable, including statements by the respondent (self-incrimination) or relevant information from family or household members
- ANY OTHER FACTS THAT THE COURT BELIEVES ARE RELEVANT
The Court may issue an order WITHOUT NOTICE. This is known as an ex-parte order. An ex-parte order is permitted if the Court determines by clear and convincing evidence from specific facts in the complaint, motion, or affidavit that IMMEDIATE AND IRREPARABLE injury, loss, or damage will result from delay or giving notice. The Court must act within one business day on such a request. This means the Court may order, and the police may take your firearms based on someone’s word alone, not based on facts or allegations that are tested. It reminds me of the Trial of the Knave in Lewis Carroll’s book, Alice in Wonderland, where the Queen says, “sentence first – verdict afterward.”
If the Court issues an ex-parte order, and the restrained person ASKS FOR A HEARING, the Court shall order a hearing within 14 days or five days if the restrained individual is a law enforcement officer. This allows the removal of all firearms, without notice or an opportunity to be heard, for up to 2 weeks before the order can be challenged.
A law enforcement officer can obtain an immediate ex parte order via telephone if responding to a complaint involving the respondent: no hearing, no due process, no notice, no nothing. No crime is required. There is no needed probable cause. No constitutional protections are necessary.
There are limits on how many times a person may file to have an Extreme Risk Protection Order / Firearm PPO modified or terminated. A person may file one motion to alter or rescind the order during the 1st six months and one during the 2nd six months. The Court may summarily dismiss more frequent motions. This means that there is no mechanism to review the order for at least six months, and when reviewed, it will go back to the judge that granted the initial order. Because of the length of time for an appeal, there will not be any effective appellate review.
Our justice system typically requires the accuser to prove their case in America. Not here. Once an order is issued, the burden to overturn the ruling is on the restrained individual. The restrained individual is burdened to prove they should get their guns back. No one has to continue to prove they should not have the weapons. This is a frontal assault on our system of justice, which has long held that someone is innocent until proven guilty. The restrained individual must establish by a preponderance that they no longer pose a risk of severe physical injury to another individual or themselves by possessing a firearm.
The Court may order the restrained individual to surrender all firearms or surrender them immediately within 24 hours. If the Court orders an immediate surrender, the Court SHALL issue an anticipatory search warrant. No probable cause is needed. No due process is required. The police may search for and seize the restrained individual’s weapons. Unless the petitioner is a law enforcement officer or health care provider, the presumption is that the restrained individual will have 24 hours to surrender the firearms.
The Court has the discretion to permit firearms surrender to a pre-approved list of firearms dealers. This makes private FFLs a party to the seizure.
Once an order is issued, its existence will be entered into various federal, state, and local law enforcement databases.
Violating an order will subject a restrained individual to immediate arrest, prosecution, contempt, and an extension of the order. Penalties for violation include a felony conviction, up to a year in jail for a first-time violator, and up to five years for subsequent offenses.
Orders are good for one year, after which another petition may extend them, or the Court may extend the order on its initiative.
When You Need Legal Advice on PPO and Firearms
If you’re facing the complexities of an Extreme Risk Protection Order or a Gun/Firearm Personal Protection Order in Michigan, it’s vital that you understand your rights and the legal avenues available to you. Whether you’re concerned about being unjustly targeted by such an order or you’re currently navigating the legal challenges of an existing order, our team is here to provide the guidance and defense you need.
Don’t let speculation, suspicion, or misunderstandings compromise your legal rights and future. Contact the Law Offices of John Freeman today for a consultation. Our experienced gun lawyers are dedicated to defending your rights and ensuring your side of the story is heard.