Michigan Supreme Court – These changes follow the creation of the Extreme Risk Protection Order Act and amendments to the Firearms Act. Red Flag Laws.

Effective February 13, 2024

On February 6, 2024, the Michigan Supreme Court issued ADM File No. 2023-24, which adopts amendments to MCR 3.701 and the addition of MCR 3.715, .716, .717, .718, .719, .720, .721, and .722, effective February 13, 2024.

These changes follow the creation of the Extreme Risk Protection Order Act and amendments to the Firearms Act, the Code of Criminal Procedure, and the Revised Judicature Act in May of 2023.

• MCR 3.715 Definitions. Several terms are defined within this rule, including “complaint,” “existing action,” “minor,” “petitioner,” and “respondent.” In addition, MCR 3.715 indicates that the terms “dating relationship,” “possession or control,” “family member,” “guardian,” “health care provider,” “law enforcement agency,” and “law enforcement officer,” mean those terms as defined in MCL 691.1803.

• MCR 3.716 Commencing an Extreme Risk Protection Action. An extreme risk protection action is an independent action commenced by filing a complaint with the family division of the circuit court. A complaint may be filed regardless of whether the respondent owns or possesses a firearm and must be prepared on a form approved by the State Court Administrative Office and submitted with the complaint. An extreme risk protection action may only be commenced by
  • the spouse or former spouse of the respondent;
  • an individual who has a child in common with, has or has had a dating relationship with, or resides or has resided in the same household as the respondent;
  • a family member;
  • a guardian of the respondent;
  • a law enforcement officer; or
  • a health care provider, under certain circumstances.

MCR 3.716 also details requirements for the complaint, a complaint against a minor, and venue.

• MCR 3.717 Dismissals. Except as otherwise specified in the rules, an action for an extreme risk protection order (ERPO) may only be dismissed upon motion by the petitioner prior to the issuance of an order.
• MCR 3.718 Issuing Extreme Risk Protection Orders. Except as otherwise provided in the rule, the court must rule on a request for an ex parte order within one business day of the filing date of the complaint and must expedite and give priority to ruling on a request for an ex parte order. MCR 3.718 also specifies the factual requirements for granting an ex parte order as well as the procedures for immediate emergency ex parte orders, an anticipatory search warrant, and hearings. The court must expedite and give priority to hearings required by the extreme risk protection act and must schedule a hearing for the issuance of an ERPO under certain circumstances detailed in the rule.
• MCR 3.719 Orders. This rule details the form and scope of an order and stipulates the respondent’s response requirements, along with restrictions on concealed weapons and the process for surrendering firearms. Service, notice, and clerk of the court responsibilities are also covered in MCR 3.719.

• MCR 3.720 Modification, Termination, or Extension of Order. The petitioner may file a motion to modify or terminate the ERPO and request a hearing after the order is issued. The respondent may file one motion to modify or terminate an ERPO during the first six months that the order is in effect and one motion during the second six months that the order is in effect.
• MCR 3.721 Contempt Proceedings for Violation of Extreme Risk. In general, an ERPO is enforceable under MCL 691.1810(4)–(5), 691.1815(4), and 691.1819(4). MCR 3.721 outlines the guidelines for motions to show cause, service, search warrants, arraignment, pleas of guilty, scheduling or postponing hearings, prosecution after arrest, and violation hearings.
• MCR 3.722 Appeals. Appeals must generally comply with subchapter 7.200. Either party has an appeal of right from
  • an order granting, denying, or continuing an ERPO after a hearing under MCR 3.718(D); or
  • an order granting or denying an extended ERPO after a hearing under MCR 3.720(B).

The respondent has an appeal of right from a judgment of sentence for criminal contempt entered after a contested hearing.

The respondent has the lawful right to appeal a judgment of sentence for criminal contempt entered following a contested hearing.

Chief Justice Clement concurred with the proposed adoption of the ERPO court rules, but she wrote separately to address her concerns regarding inconsistent legal terminology used in the Extreme Risk Protection Order Act..

Among other linguistic inconsistencies, she emphasized that the Act “requires an individual to file “a summons and complaint” to initiate an ERPO action” but the nature of ERPO actions is consistent with that of a petition—not a complaint.

The Michigan Supreme Court has developed a range of SCAO forms aligned with the ERPO, showcasing their commitment to effective legal documentation.:

See the Court’s February 7, 2023 memorandum for more info.

 Court Form Information

https://www.courts.michigan.gov/4908b5/siteassets/forms/scao-approved/recent-revisions/eoc_erpo.pdf

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The Expanding List of Crimes that Restrict Gun Ownership in Michigan

Here are the Laws

Domestic Violence

The legislature passed a package of bills that add subsets to certain misdemeanor offenses (identified below) for offenses involving domestic relationships.

See 2023 PA 199 (eff. Feb 13, 2024).

Violation of these provisions are considered domestic violence. Misdemeanors involving domestic violence are defined in MCL 750.224f(10)(c), amended by 2023 PA 201 (eff. Feb 13, 2024), and include the following:

• MCL 750.81(2)and (4): Assault or assault and battery of a spouse or former spouse
• MCL 750.81a(2): Aggravated assault or assault and battery of a spouse or former spouse
• MCL 750.115(2): Entering structure without permission; breaking and entering or entering without breaking
• MCL 750.145n(5): Fourth-degree vulnerable adult abuse
• MCL 750.377a(1)(d): Malicious destruction of property ($200 or more but less than $1,000)
• MCL 750.377a(1)(f): Malicious destruction of property (less than $200)
• MCL 750.380(5): Malicious destruction of house, barn, or building ($200 or more but less than $1,000; or less than $200 with one or more prior convictions)
• MCL 750.380(7): Malicious destruction of house, barn, or building (less than $200)
• MCL 750.411h(2)(c): Stalking
• MCL 750.540e(1)(h): Malicious use of a telecommunications service or device

Importantly, under MCL 750.224f(5), amended by 2023 PA 201 (eff. Feb 13, 2024), an offender convicted of a misdemeanor involving domestic violence, as listed above,

shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm or ammunition in this state until the expiration of 8 years after all of the following circumstances exist:

(a) The person has paid all fines imposed for the violation.

(b) The person has served all terms of imprisonment imposed for the violation.

(c) The person has successfully completed all conditions of probation imposed for the violation.

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Other Crimes

In addition to domestic violence measures, 2023 PA 201 (eff. Feb 13, 2024) expands the definition of felony to include violations “punishable by imprisonment for a term exceeding 1 year.” MCL 750.224f(10)(b), amended by 2023 PA 201 (eff. Feb 13, 2024) (emphasis added). Previously, a felony was defined as a violation of law punishable by imprisonment for four or more years. Consequently, 2023 PA 201 increases the number of offenses that fall under the three-year firearms and ammunition prohibition in MCL 750.224f(1).

Juvenile Reforms

Screening Tools and Risk Assessment

2023 PA 287 (eff. Oct 1, 2024) amends the Juvenile Diversion Act, MCL 722.822, .823, .826, and .829, to allow the use of risk and mental health screening tools before a diversion decision for the minor is made. The amended act states that these tools may not be conducted on a minor who is either (1) accused or charged with a specified juvenile violation or (2) currently under supervision in the juvenile justice system by the court or the Department of Health and Human Services. A minor may not be diverted under the act unless a law enforcement official or court intake worker (1) receives the results of a risk screening tool and a mental health screening tool for the minor and (2) uses the results of the risk screening tool and the mental health screening tool as well as the best interests of public safety and the minor to inform the decision to divert the minor.

In addition, 2023 PA 289 (eff. Oct 1, 2024) amends MCL 712A.2f to require a court to consider the results of a screening before placing a juvenile’s case on the consent calendar. The results of a screen under these amendments are confidential case records.

The procedure for juvenile detention has also been modified. 2023 PA 290 (eff. Oct 1, 2024) amends MCL 712A.15 and .16 to state that before a juvenile may be detained in a secure facility pending hearing, an individual or agency must use a detention screening tool on the juvenile. The court then must consult those results and follow any rules regarding their use. The amendments further specify that any statement or incriminating evidence obtained during screening is not admissible as evidence in a court proceeding.

2023 PA 298 (eff. Oct 1, 2024) amends MCL 712A.18 to require a designated, trained individual or agency to conduct a risk and needs assessment for each juvenile before a disposition. The amendment also requires a court to consider the results of the assessment, in addition to other factors, when making a disposition decision. Finally, the amended statute requires an additional assessment if six months have passed, if the juvenile experienced a major life event, or if there was a major change in the juvenile’s proceedings.

Factors to Consider to Try a Juvenile as an Adult

Effective October 1, 2024, 2023 PA 291 amends MCL 712A.2d, .2f, and .4 by modifying the factors a court must consider before trying a juvenile as an adult. These factors now include

• the seriousness of the alleged offense in terms of community protection;
• the juvenile’s culpability in committing the alleged offense;
• the juvenile’s prior record of delinquency that would be a crime if committed by an adult;
• the juvenile’s programming history, including any out-of-home placement or treatment, and the juvenile’s past willingness to participate meaningfully in available programming;
• the adequacy of the programming available to rehabilitate and hold accountable the juvenile in the juvenile justice system and the juvenile’s amenability to treatment;
• the dispositional options available for the juvenile;
• the juvenile’s developmental maturity, emotional health, and mental health;
• if the juvenile is a member of a federally recognized Indian tribe, culturally honoring traditional values of the juvenile’s tribe; and
• the effect on any victim.

See MCL 712A.2d(2)(a)–(i), amended by 2023 PA 291 (eff. Oct 1, 2024).

Time to Complete Diversion

2023 PA 288 (eff. Oct 1, 2024) amends MCL 722.825 and .826 to limit the time a minor has to complete a diversion agreement to not exceed three months unless it is determined that a longer term is necessary.

Delinquent Accounts

2023 PA 292 (eff. Oct 1, 2024) amends MCL 600.4803 to exempt a juvenile or their parent or guardian from a late penalty if the juvenile failed to pay a fee or cost associated with the proceedings in 56 days. Furthermore, 2023 PA 293 (eff. Oct 1, 2024) amends MCL 769.1 to delete certain provisions relating to reimbursement for court fees in a juvenile case.

Crime Victims’ Rights

MCL 760.21b(1), added by 2023 PA 180 (eff. Feb 13, 2024), states in part that “[a] police officer or a prosecuting attorney may provide a domestic or sexual violence service provider agency with the name, demographics, and other pertinent information of, and information to facilitate contact with, a victim of domestic or sexual violence for the purpose of offering supportive services to the victim.”

2023 PA 179 (eff. Feb 13, 2024) amends MCL 780.758, .788, and .818 to specify that certain items already exempted under the Freedom of Information Act, such as pictures, photographs, drawings, or other visual representations, including any film, videotape, or digitally stored image of a victim that is made available through a public court proceeding streamed on the Internet or other means, may be blurred.

2023 PA 178 (eff. Feb 13, 2024) amends MCL 780.765, .793, and .825 to allow a victim to remotely provide an oral impact statement at a disposition or sentencing.

Reproductive Rights

Numerous bills were passed, including 2023 PA 205, 208, and 286 (all effective February 13, 2024), that codify the rights to reproductive freedom and repeal and modify certain acts to reflect this codification. The repealed or modified acts include the following:

• MCL 333.1081 et seq.: Legal Birth Definition Act
• MCL 333.1091: Family planning or reproductive services; allocation of funds
• MCL 550.541 et seq.: Abortion Insurance Opt-Out Act
• MCL 750.323: Manslaughter; death of quick child or mother from use of medicine or instrument

Hate Crimes

2023 PA 277 (eff. Feb 13, 2024) added MCL 750.147c to the Michigan Penal Code to state that a person is guilty of institutional desecration if the offender “maliciously and intentionally destroys, damages, defaces, or vandalizes, or makes a true threat to destroy, damage, deface, or vandalize” specified institutions identified in MCL 750.147c(1)(a)–(g) “because of the actual or perceived race, color, religion, sex, sexual orientation, gender identity or expression, physical or mental disability, age, ethnicity, or national origin of another individual or group of individuals, regardless of the existence of any additional motivating factors.” The act includes felony and misdemeanor punishments, depending on the dollar value of the property damage or injury.

Vulnerable Adults

MCL 750.145h(1), added by 2023 PA 275 (eff. Mar 7, 2024), states in part that “[a] person shall not intentionally or knowingly harass, abuse, threaten, force, coerce, compel, or exploit the vulnerability of a vulnerable adult in a manner that causes the vulnerable adult to provide that person, or any other person, sexually explicit visual material.” The statute also provides for misdemeanor and felony penalties for these offenses.

Health Professionals

Numerous bills were passed to protect health professionals and medical volunteers. MCL 750.81, .81a, and .82, which govern assaults, were amended by 2023 PA 271 and 272 (both effective March 5, 2024) to specify that if the victim of an assault is a health professional or medical volunteer and the offense occurs while the victim is performing their duties, the offender is subject to an enhanced penalty. In addition, the statutes require health facilities to post prominent, visible signs about the enhanced penalty.

Elections

MCL 168.931b(1), added by 2023 PA 253 (eff. Feb 13, 2024), states in part that “[a]n individual who intimidates an election official because of the election official’s status as an election official, with the specific intent of interfering with the performance of that election official’s election-related duties, is guilty of a crime.” The new law also criminalizes actions that prevent an election official from performing their duties. It does not apply to “constitutionally protected activity,” such as “reporting, news gathering, protesting, lobbying, advocacy,” or other activities of public interest or concern.

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