Michigan Supreme Court
Lansing, Michigan
Elizabeth T. Clement
,
Chief Justice
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden,
Justices
Order
February 6, 2024
A
DM File No. 2023-24
A
mendment of Rule 3.701 and
Additions of Rules 3.715, 3.716,
3.717, 3.718, 3.719, 3.720, 3.721, and
3.722 of the Michigan Court Rules
_______________________________
On order of the Court, notice of the proposed changes and an opportunity for
comment in writing and at a public hearing having been provided, and consideration having
been given to the comments received, the following amendment of Rule 3.701 and
additions of Rules 3.715, 3.716, 3.717, 3.718, 3.719, 3.720, 3.721, and 3.722 of the
Michigan Court Rules are adopted, effective February 13, 2024.
[A
dditions to the text are indicated in underlining and
deleted text is shown by strikeover.]
Subchapter 3.700 Personal Protection and Extreme Risk Protection Proceedings
R
ule 3.701 Applicability of Rules; Forms
(A) Scope. Except as provided by this subchapter and the provisions of MCL 600.2950,
and MCL 600.2950a, and MCL 691.1801 to MCL 691.1821, actions for personal
protection for relief against domestic violence or stalking and actions for extreme
risk protection are governed by the Michigan Court Rules. Procedure related to
personal protection orders against adults is governed by MCR 3.702 to MCR 3.709,
and procedure related to extreme risk protection is governed by MCR 3.715 to MCR
3.722this subchapter. Procedure related to personal protection orders against
minors is governed by subchapter 3.900, except as provided in MCR 3.981.
(B) Forms. The state court administrator shall approve forms for use in personal
protection act proceedings and for use in extreme risk protection act proceedings
.
The forms shall be made available for public distribution by the clerk of the circuit
court.
[N
EW] Rule 3.715 Definitions
W
hen used in MCR 3.716-3.722, unless the context otherwise indicates:
(1) “Complaint.” An individual seeking an extreme risk protection order is
petitioning a court for relief. However, the Legislature uses the terms
2
“complaint” and “summons” throughout the Extreme Risk Protection Order
Act, MCL 691.1801 et seq., rather than the term “petition.” Therefore, for
the purposes of MCR 3.716-3.722 only, a complaint means the act of
petitioning the court to issue an extreme risk protection order. Petitioning
the court in this manner commences an independent action for an extreme
risk protection order and is not considered a motion as defined in MCR 2.119.
(2) “Dating relationship” means that term as defined in MCL 691.1803.
(3) “Existing action” means an action in any court in which both the petitioner
and the respondent are parties; existing action includes, but is not limited to,
pending and completed domestic relations actions, and other actions for
personal protection or extreme risk protection orders.
(4) “Extreme risk protection order” means that term as defined in MCL
691.1803.
(5) “Family member,” “guardian,” “health care provider,” “law enforcement
agency,” and “law enforcement officer,” mean those terms as defined in
MCL 691.1803.
(6) “Minor” means a person under the age of 18.
(7) “Petitioner” means the party seeking an extreme risk protection order.
(8) “Possession or control” means that term as defined in MCL 691.1803.
(9) “Respondent” means the party to be restrained by the extreme risk protection
order.
[NEW] Rule 3.716 Commencing an Extreme Risk Protection Action
(A) Filing.
(1) 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. A proposed extreme risk protection order must be prepared on a
form approved by the State Court Administrative Office and submitted at the
same time as the complaint. When completing the proposed order, the
petitioner must complete the case caption and the known fields with
identifying information, including the race, sex, and date of birth or age of
the respondent. The personal identifying information form approved by the
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State Court Administrative Office does not need to be completed or filed in
extreme risk protection actions. There are no fees for filing an extreme risk
protection action, and no summons is issued. An extreme risk protection
action may not be commenced by filing a motion in an existing case or by
joining a claim to an action.
(2) An extreme risk protection action may o
nly be commenced by the following
individuals:
(a) the spouse of the respondent;
(b) a former spouse of the respondent;
(c) an individual who:
(i) has a child in common with the respondent,
(ii) has or has had a dating relationship with the respondent, or
(iii) resides or has resided in the same household with the
respondent;
(d) a family member;
(e) a guardian of the respondent;
(f) a law enforcement officer; or
(g) a health care provider, if filing and maintaining the action does not
v
iolate requirements of the health insurance portability and
accountability act of 1996, Public Law 1
04-191, or regulations
promulgated under that act, 45 CFR parts 160 and 164, or physician-
patient confidentiality.
(B) C
omplaint in General. The complaint must
(1) b
e in writing;
(2) s
tate the respondent’s name and address;
(3) state with particularity any facts that show the issuance of an extreme risk
protection order is necessary because the respondent can reasonably be
expected within the near future to intentionally or unintentionally seriously
4
physically injure themselves or another individual by possessing a firearm,
and has engaged in an act or acts or made significant threats that are
substantially supportive of the expectation, including facts that address the
factors in MCL 691.1807(1) that the court must consider when determining
whether to issue an extreme risk protection order;
(4) if known by the petitioner, state whether any following circumstances are
applicable:
(a) the respondent is required to carry a pistol as a condition of the
respondent’s employment and is issued a license to carry a concealed
pistol,
(b) the respondent is any of the following:
(i) a police officer licensed or certified under the Michigan
Commission on Law Enforcement Standards Act (MCOLES),
MCL 28.601 to MCL 28.615,
(ii) a sheriff or deputy sheriff,
(iii) a member of the Department of State Police,
(iv) a local corrections officer,
(v) an employee of the Michigan Department of Corrections, or
(vi) a federal law enforcement officer who carries a pistol during
the normal course of the officer’s employment or an officer of
the Federal Bureau of Prisons,
(5) state whether the petitioner knows or believes that the respondent owns or
possesses firearms and, to the extent possible, identify the firearms, giving
their location and any additional information that would help a law
enforcement officer find the firearms;
(6) state the relief sought;
(7) state whether an ex parte order is being sought and, if so, state with
particularity the facts that show the issuance of an ex parte order is
necessary because
(a) immediate and irreparable injury, loss, or damage will result
5
from the delay required to effectuate notice, or
(b) the notice will itself precipitate adverse action before an order can be
issued,
(8) state whether an extreme risk protection action involving the respondent has
been commenced in another jurisdiction and, if so, identify the jurisdiction;
and
(9) be signed by the party or attorney as provided in MCR 1.109(E). If the
complaint requests an ex parte order, the complaint must also comply with
MCR 3.718(A)(2).
(C) The petitioner’s address must not be disclosed in any pleading, paper, or in any other
manner. The petitioner must provide the court with an address and contact
information, including an email address and telephone number if available, in the
form and manner established by the State Court Administrative Office. The clerk
of the court must maintain the petitioner’s address as confidential in the court file.
(D) Complaint Against a Minor. In addition to the requirements outlined in subrule (B),
a complaint against a minor must also list, if known or can be easily ascertained, the
names and addresses of the minor’s parent(s), guardian, or custodian.
(E) Other Pending Actions; Order, Judgments.
(1) The complaint must specify whether there are any other pending actions in
this or any other court, or orders or judgments already entered by this or any
other court affecting the parties, including the name of the court and the case
number, if known.
(a) If the complaint is filed in the same court as a pending action or where
an order or judgment has already been entered by that court affecting
the parties, it shall be assigned to the same judge.
(b) If there are pending actions in another court or orders or judgments
already entered by another court affecting the parties, the court may
contact the court where the pending actions were filed or orders or
judgments were entered, if practicable, to determine any relevant
information.
(2) If the prior action resulted in an order providing for continuing jurisdiction
of a minor, and the new action requests relief with regard to the minor, the
court must comply with MCR 3.205.
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(F) Venue.
(1) If the respondent is an adult, the petitioner may file an extreme risk protection
action in any county in Michigan regardless of the parties’ residency or
location.
(2) If the respondent is a minor, the petitioner must file an extreme risk
protection action in either the petitioner’s or respondent’s county of
residence.
(3) If the respondent does not live in Michigan, the petitioner must file an
extreme risk protection action in the petitioner’s county of residence.
(G) Minor or Legally Incapacitated Individual as Petitioner or Respondent. If a
petitioner or respondent is a minor or a legally incapacitated individual, the court
must appoint a next friend or guardian ad litem as provided by MCR 2.201(E).
[NEW] Rule 3.717 Dismissals
Except as specified in MCR 3.718(A)(5), MCR 3.718(B), MCR 3.718(D), and MCR 3.720,
an action for an extreme risk protection order may only be dismissed upon motion by the
petitioner prior to the issuance of an order. There is no fee for such a motion. This rule
does not preclude a dismissal as otherwise permitted by law.
[NEW] Rule 3.718 Issuing Extreme Risk Protection Orders
(A) Ex Parte Orders. Except as otherwise provided in this rule:
(1) The court must rule on a request for an ex parte order within one business
day of the filing date of the complaint. The court must expedite and give
priority to ruling on a request for an ex parte order.
(2) An ex parte order must be granted if it clearly appears from the specific facts
shown by a verified, written complaint that
(a) by a preponderance of the evidence after considering the factors
identified in MCL 691.1807(1), the respondent can reasonably be
expected within the near future to intentionally or unintentionally
seriously physically injure themselves or another individual by
possessing a firearm, and has engaged in an act or acts or made
significant threats that substantially support the expectation that the
7
respondent will intentionally or unintentionally seriously physically
injure themselves or another individual by possessing a firearm; and
(b) pursuant to MCL 691.1807(2), there is clear and convincing evidence
that immediate and irreparable injury, loss, or damage will result from
the delay required to effectuate notice or that the notice will itself
precipitate adverse action before an order can be issued.
(3) An ex parte order expires one year after the date of issuance.
(4) If an ex parte order is entered, the complaint and order must be served as
provided in MCR 3.719(B). However, failure to effectuate service does not
affect the order’s validity or effectiveness.
(5) If the court refuses to grant an ex parte order, it must immediately state the
reasons in writing and advise the petitioner of the right to request a hearing
as provided in subrule (D). If the petitioner does not request a hearing within
21 days of entry of the order, the order denying the complaint is final.
(B) Immediate Emergency Ex Parte Orders.
(1) A petitioner who is a law enforcement officer may verbally request by
telephone that a judge or magistrate on duty within that jurisdiction
immediately issue an emergency ex parte order under subrule (A) if the
officer is responding to a complaint involving the respondent and the
respondent can reasonably be expected within the near future to intentionally
or unintentionally seriously physically injure the respondent or another
individual by possessing a firearm.
(2) The judge or magistrate must immediately rule on a verbal request made
under this subrule, and if the judge or magistrate issues an immediate
emergency ex parte order,
(a) the officer must notify the respondent of the order and advise where
they can obtain a copy of the order;
(b) within one business day, the officer must file a sworn written
complaint detailing the facts and circumstances presented verbally to
the judge or magistrate; and
(c) if the officer does not file the complaint within one business day, the
court must, unless good cause is shown,
8
(i) terminate the immediate emergency ex parte order,
(ii) order that the respondent, subject to the restrictions in MCL
691.1815, may reclaim any seized firearm(s), and
(iii) dismiss the case.
(3
) In each county, the circuit court must file for approval with the state
court administrator a plan to make a judge or magistrate on duty and
available each day of the year to immediately review and rule on a
verbal request made under this subrule. The court must provide their
approved plan to all law enforcement agencies within their
jurisdiction.
(C) Anticipatory Search Warrant. If the court orders the firearms immediately
surrendered, the law enforcement officer serving the order pursuant to MCR
3.719(B)(2) may file an affidavit requesting that the court issue an anticipatory
search warrant authorizing a law enforcement agency to search the location or
locations where the firearm(s) or concealed pistol license is believed to be and to
seize any firearm(s) or concealed pistol license discovered during the search in
compliance with 1966 PA 189, MCL 780.651 to 780.659. The law enforcement
officer’s affidavit may include affirmative allegations contained in the complaint
.
An anticipatory search warrant issued under this subrule is subject to and contingent
on the failure or refusal of the respondent, following service of the order, to
immediately comply with the order and immediately surrender to a law enforcement
officer any firearm or concealed pistol license in the individual’s possession or
control. The court must issue the anticipatory search warrant if the affidavit
establishes probable cause to believe that if the respondent refuses to immediately
comply with the order, there is a fair probability that the respondent’s firearm(s) o
r
c
oncealed pistol license will be found in the location or locations to be searched.
(D) H
earing.
(1
) The court must expedite and give priority to hearings required by the extreme
risk protection act
.
(2) T
he court must schedule a hearing for the issuance of an extreme risk
protection order in the following instances:
(a) T
he complaint does not request an ex parte order. If the petitione
r
does not request an ex parte order, the hearing must occur within 14
days of the date the complaint is filed.
9
(b) T
he court refuses to enter an ex parte order and the petitioner timely
requests a hearing. If the court refuses to enter an ex parte order, the
hearing must occur within 14 days of the petitioner’s request for a
hearing.
(c) T
he court entered an ex parte order and the respondent requests a
hearing.
(3) If t
he court enters an ex parte order or an immediate emergency ex parte orde
r
and the respondent requests a hearing, the hearing must occur
(a) u
nless subrule (3)(b) applies, within 14 days after the order is served
on the respondent or after the respondent receives actual notice of the
order. A respondent must request this hearing within 7 days after the
order is served or after the respondent receives actual notice of the
order.
(b) w
ithin 5 days, excluding weekends and holidays if the court is closed
to the public, after the order is served on the respondent or after the
respondent receives actual notice of the order, if the respondent is an
individual described in MCL 691.1805(5). A respondent must request
this hearing within 3 days after the order is served or after the
respondent receives actual notice of the order. If the court is closed
to the public upon the expiration of this 3-day period, the request must
be made not later than the next business day. To ensure timely notice,
the clerk of the court must notify the petitioner of this hearing at the
email address and telephone number provided by the petitioner under
MCR 3.716(C).
A respondent waives their right to a hearing on an ex parte order under
subrule (D)(2)(c) if the respondent does not request a hearing within the
timeframes specified in subrules (D)(3)(a) and (D)(3)(b).
(4) The petitioner must serve on the respondent the complaint and notice of the
hearing as provided in MCR 2.105(A), for a hearing scheduled under
subrules (D)(2)(a)-(b). If the respondent is a minor, and the whereabouts o
f
t
he respondent’s parent(s), guardian, or custodian are known, the petitione
r
m
ust also in the same manner serve the complaint and notice of the hearing
on the respondent’s parent(s), guardian, or custodian. The clerk of the court
must serve the respondent’s request for a hearing under subrule (D)(2)(c) on
the petitioner, as provided in MCR 2.107(C) and subrule (D)(3)(b), due to
the confidential nature of the petitioner’s address unless the petitioner
10
electronically filed the case under MCR 1.109(G) and the respondent has
registered with the electronic-filing system. In that instance, the respondent
must serve the petitioner electronically at the petitioner’s registered email
address. If the respondent is a person described in MCL 691.1805(5),
providing notice one day before the hearing is deemed as sufficient notice to
the petitioner.
(5) The hearing must be held on the record. In accordance with MCR 2.407 and
MCR 2.408, the court may allow the use of videoconferencing technology.
(6) The petitioner must attend the hearing and carries the burden of proving, by
a preponderance of the evidence, that the respondent can reasonably be
expected within the near future to, intentionally or unintentionally, seriously
physically injure themselves or another individual by possessing a firearm
and has engaged in an act or acts or made significant threats that are
substantially supportive of the expectation. If the petitioner fails to attend
the hearing, the court may adjourn and reschedule the hearing or dismiss the
complaint.
(7) If the respondent fails to appear at a hearing on the complaint under subrules
(D)(2)(a)-(b) and the court determines the petitioner made diligent attempts
to serve the respondent, whether the respondent was served or not, the order
may be entered without further notice to the respondent if the court
determines an extreme risk protection order is necessary. If the respondent
fails to appear at a hearing on the complaint requested under subrule
(D)(2)(c), the court may adjourn and reschedule the hearing or continue the
order without further hearing.
(8) At the hearing, the court must consider the factors identified in MCL
691.1807(1) and state on the record the reasons for granting, denying, or
continuing an extreme risk protection order and enter an appropriate order.
Additionally, the court must immediately state the reasons for granting,
denying, or continuing an extreme risk protection order in writing.
[NEW] Rule 3.719 Orders
(A) Form and Scope of Order. An order granting an extreme risk protection order must
include the following provisions:
(1) Respondent Responsibilities. The respondent must complete the filing
requirements contained in subrule (D)(1). A failure to comply with the filing
requirements will result in the issuance of either a warrant or an order to show
cause why the respondent should not be held in contempt of court.
11
(2) Purchase/Possession of Firearms. The respondent must not purchase or
possess a firearm. If the respondent has been issued a license under MCL
28.422 that the respondent has not used and that is not yet void, the
respondent must not use it and must surrender it to the law enforcement
agency designated under MCL 691.1809(1)(g).
(3) C
oncealed Carry Licenses. The respondent must not apply for a concealed
pistol license. If the respondent has been issued a license to carry a concealed
pistol, the license will be suspended or revoked under MCL 28.428 once the
extreme risk protection order is entered into the law enforcement information
network (LEIN). The respondent must surrender the license to carry a
concealed pistol as required by MCL 28.428.
(4) Firearm Surrender. The respondent must, within 24 hours, or at the court’s
discretion, immediately after being served with the order, surrender any
firearms in the respondent’s possession or control to the law enforcement
agency designated under MCL 691.1809(1)(g), or if allowed as ordered by
the court, to a licensed firearm dealer on the list prepared under MCL
691.1818.
If the court orders the respondent to immediately surrender the individual’s
firearms, the order must include a statement that the law enforcement agency
designated under MCL 691.1809(1)(g) must proceed to seize the
respondent’s firearms after the respondent is served with or receives actual
notice of the extreme risk protection order, after giving the respondent an
opportunity to surrender the respondent’s firearms. Unless the petitioner is
a law enforcement officer or health care provider, there is a presumption that
the respondent will have 24 hours to surrender the firearms.
(5) Firearm Description. If the petitioner has identified any firearms in the
complaint, a specific description of the firearms to be surrendered or seized.
(6) Hearing Request. If the extreme risk protection order was issued without
written or oral notice to the respondent, the order must include a statement
that the respondent may request and attend a hearing to modify or rescind the
order as provided in MCR 3.718(D)(3).
(7) Motions. A statement that the respondent may file a motion to modify or
rescind the order as allowed under MCL 691.1801 et seq., and that motion
forms and filing instructions are available from the clerk of the court.
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(8) Law Enforcement Agency Designation. A designation of the law
enforcement agency that is responsible for forwarding the order to the
Federal Bureau of Investigation under MCL 691.1815(1). The designated
law enforcement agency must be an agency within whose jurisdiction the
respondent resides.
(9) LEIN Entry. Directions to a local entering authority or the law enforcement
agency designated under MCL 691.1809(1)(g) to enter the order into LEIN.
(10) Order Violations. A statement that violating the order will subject the
respondent to the following:
(a) immediate arrest;
(b) contempt of court;
(c) an automatic extension of the order; and
(d) criminal penalties, including imprisonment for up to one year for an
initial violation and up to five years for a subsequent violation.
(11) Right to Attorney. A statement that the respondent has the right to seek the
advice of, and be represented by, an attorney.
(12) Expiration Date. An expiration date that is one year after the date of issuance.
(B) Service.
(1) Except as provided in subrule (B)(2), the petitioner must serve the order on
the respondent as provided in MCR 2.105(A). If the respondent is a minor,
and the whereabouts of the respondent’s parent(s), guardian, or custodian is
known, the petitioner must also in the same manner serve the order on the
respondent’s parent(s), guardian, or custodian. On an appropriate showing,
the court may allow service in another manner as provided in MCR 2.105(J).
Failure to serve the order does not affect its validity or effectiveness.
(2) If the court ordered the immediate surrender of the respondent’s firearms, the
order must be served personally by a law enforcement officer.
(3) Proof of service must be filed with the court within one business day after
service.
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(C) Oral Notice. If oral notice of the order is made by a law enforcement officer as
described in MCL 691.1813(3), proof of the notification must be filed with the court
by the law enforcement officer within one business day after the notification.
(D) Respondent Responsibilities.
(1) Not later than 24 hours after the respondent receives a copy of the extreme
risk protection order or has actual notice of the order, the respondent must do
one of the following:
(a) File with the court that issued the order one or more documents or
other evidence verifying that all of the following are true:
(i) All firearms previously in the respondent’s possession or
control were surrendered to or seized by the local law
enforcement agency designated under MCL 691.1809(1)(g), or
if allowed as ordered by the court, to a licensed firearm dealer
on the list prepared under MCL 691.1818.
(ii) Any concealed pistol license was surrendered to or seized by
the local law enforcement agency designated under MCL
691.1809(1)(g) or surrendered to the county clerk as required
by the order and MCL 28.428.
(iii) At the time of the verification, the respondent does not have
any firearms or a concealed pistol license in the respondent’s
possession or control.
(b) File with the court that issued the order one or more documents or
other evidence verifying that both of the following are true:
(i) At the time the order was issued, the respondent did not have a
firearm or concealed pistol license in the respondent’s
possession or control.
(ii) At the time of the verification, the respondent does not have a
firearm or concealed pistol license in the respondent’s
possession or control.
If the court is closed when the 24-hour period expires, the respondent must
complete the required filing not later than the next business day.
14
(2) Failure to File. The clerk of the court must review the proof of service filed
with the court and determine whether the respondent has complied with the
filing requirements of subrule (D)(1). If the respondent has not complied
with the filing requirements of subrule (D)(1), the clerk and the court must
take the following actions:
(a) Clerk of the Court. The clerk of the court must notify the local law
enforcement agency identified in MCL 691.1809(1)(g) and the
assigned judge of the failure to comply with the filing requirements.
If this notice is provided, the clerk of the court must again notify the
local law enforcement agency and the assigned judge when the
respondent has complied with the filing requirements.
(b) Court. The court must issue either a bench warrant or an order to
show cause to initiate contempt proceedings as identified in MCR
3.721. If issuing an order to show cause, the hearing must be
scheduled within 5 days of the date the proof of service is filed with
the court. The court may recall the bench warrant or cancel the order
to show cause if the respondent makes the required filings identified
in subrule (D)(1). If the respondent fails to appear for the show cause
hearing, the court must issue a bench warrant.
If the court issues a bench warrant under this subrule, a law
enforcement officer may file an affidavit requesting that the court
issue a search warrant to search the location or locations where the
firearm(s) or concealed pistol license is believed to be and to seize any
firearm(s) or concealed pistol license discovered during the search.
The law enforcement officer’s affidavit may include affirmative
allegations contained in the complaint. If the affidavit establishes
probable cause to believe the location or locations to be searched are
places where the firearm(s) or concealed pistol license is believed to
be, the court must issue the search warrant.
(E) Clerk of the Court Responsibilities. The clerk of the court that issues an extreme
risk protection order must complete the actions identified in MCL 691.1811.
[NEW] Rule 3.720 Modification, Termination, or Extension of Order
(A) Modification or Termination.
(1) Time for Filing and Number of Motions.
15
(a) The petitioner may file a motion to modify or terminate the extreme
risk protection order and request a hearing at any time after the
extreme risk protection order is issued.
(b) In addition to requesting a hearing under MCR 3.718(D)(3), the
respondent may file one motion to modify or terminate an extreme
risk protection order 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. If the order is extended under subrule (B), the respondent
may file one motion to modify or terminate the order during the first
six months that the extended order is in effect, and one motion during
the second six months that the extended order is in effect. If the
respondent files more than one motion during these times, the court
must review the motion before a hearing is held and may summarily
dismiss the motion without a response from the petitioner and without
a hearing.
(c) The moving party carries the burden and must prove by a
preponderance of the evidence that the respondent no longer poses a
risk to seriously physically injure another individual or the respondent
by possessing a firearm.
(2) Service. The nonmoving party must be served, as provided in MCR 2.107 at
the mailing address or addresses provided to the court, the motion to modify
or terminate the order and the notice of hearing at least 7 days before the
hearing date. The petitioner must serve the petitioner’s motion on the
respondent. The clerk of the court must serve the respondent’s motion on
the petitioner due to the confidential nature of the petitioner’s address unless
the petitioner electronically filed the case under MCR 1.109(G) and the
respondent has registered with the electronic-filing system. In that instance,
the respondent must serve the petitioner electronically at the petitioner’s
registered email address.
(3) Hearing on the Motion. The court must schedule and hold a hearing on a
motion to modify or terminate an extreme risk protection order within 14
days of the filing of the motion.
(4) Notice of Modification or Termination. If an extreme risk protection order
is modified or terminated, the clerk must immediately notify the law
enforcement agency specified in the extreme risk protection order of the
change. A modified or terminated order must be served on the respondent as
provided in MCR 2.107.
16
(5) If the extreme risk protection order expires or is terminated, the court must
order, subject to the restrictions in MCL 691.1815, that the respondent may
reclaim any seized firearm(s). Upon the motion of the respondent, the court
may also order, at any time, the transfer of the respondent’s firearm(s) seized
by law enforcement under the extreme risk protection order to a licensed
firearm dealer if the respondent sells or transfers ownership of the firearm to
the dealer.
(B) Extension of Order.
(1) Motions.
(a) Time for Filing and Service. Upon motion by the petitioner or the
court’s own motion, the court may issue an extended extreme risk
protection order that is effective for one year after the expiration of
the preceding order. The respondent must be served the motion to
extend the order and the notice of hearing at least 7 days before the
hearing date as provided in MCR 2.107 at the mailing address or
addresses provided to the court. The petitioner must serve the
petitioner’s motion on the respondent. The clerk of the court must
serve both the petitioner and respondent if upon the court’s own
motion. Failure to timely file a motion to extend the effectiveness of
the order does not preclude the petitioner from commencing a new
extreme risk protection action regarding the same respondent, as
provided in MCR 3.716.
(b) Legal Standard. The court must only issue the extended order under
this subrule if the preponderance of the evidence shows that the
respondent can reasonably be expected within the near future to
intentionally or unintentionally seriously physically injure themselves
or another individual by possessing a firearm and has engaged in an
act or acts or made significant threats that are substantially supportive
of the expectation.
(2) Automatic Extensions. If the court or a jury finds that the respondent has
refused or failed to comply with an extreme risk protection order, the court
that issued the order must issue an extended extreme risk protection order
effective for 1 year after the expiration of the preceding order.
(3) Notice of Extension. If the court issues an extended extreme risk protection
order, it must enter an amended order. The clerk must immediately notify
the law enforcement agency specified in the extreme risk protection order if
17
the court enters an amended order. The petitioner must serve an amended
order on the respondent as provided in MCR 2.107.
(C) Minors and Legally Incapacitated Individuals. Petitioners or respondents who are
minors or legally incapacitated individuals must proceed through a next friend, as
provided in MCR 3.716(G).
(D) Fees. There are no motion fees for modifying, terminating, or extending an extreme
risk protection order.
[NEW] Rule 3.721 Contempt Proceedings for Violation of Extreme Risk Protection Order
(A) In General. An extreme risk protection order is enforceable under MCL
691.1810(4)-(5), MCL 691.1815(4), and MCL 691.1819.
(B) Motion to Show Cause.
(1) Filing. If the respondent violates the extreme risk protection order, the
prosecuting attorney for the county in which the order was issued or a law
enforcement officer may file a motion, supported by appropriate affidavit, to
have the respondent found in contempt. There is no fee for such a motion.
If the motion and affidavit establish probable cause for a finding of contempt,
the court must either:
(a) order the respondent to appear at a specified time to answer the
contempt charge; or
(b) issue a bench warrant for the arrest of the respondent.
(2) Service. If issuing an order to show cause, the hearing must be held within
5 days. The prosecuting attorney or law enforcement officer must serve the
motion to show cause and the order on the respondent and petitioner as
provided in MCR 2.107.
(C) Search Warrant. If the violation alleges that the respondent has a firearm or
concealed pistol license in the respondent’s possession or control, a law
enforcement officer or prosecuting attorney may also file an affidavit requesting that
the court issue a search warrant to search the location or locations where the
firearm(s) or concealed pistol license is believed to be and to seize any firearm(s) or
concealed pistol license discovered during the search. The law enforcement
officer’s affidavit may include affirmative allegations contained in the complaint.
If the affidavit establishes probable cause to believe the location or locations to be
18
searched are places where the firearm(s) or concealed pistol license is believed to
be, the court must issue the search warrant.
(D) Arraignment; Advice to Respondent.
At the respondent’s first appearance before the court for arraignment on contempt
of court, the court must:
(1) advise the respondent
(a) of the alleged violation,
(b) of the right to contest the charge at a contempt hearing, and
(c) that they are entitled to a lawyer’s assistance at the hearing and, if the
court determines it might sentence the respondent to jail, that the
court, or the local funding unit’s appointing authority if the local
funding unit has determined that it will provide representation to
respondents alleged to have violated an extreme risk protection order,
will appoint a lawyer at public expense if the individual wants one and
is financially unable to retain one;
(2) if requested and appropriate, appoint a lawyer or refer the matter to the
appointing authority;
(3) set a reasonable bond pending a hearing of the alleged violation; and
(4) take a guilty plea as provided in subrule (E) or schedule a hearing as provided
in subrule (F).
(E) Pleas of Guilty. The respondent may plead guilty to the violation. Before accepting
a guilty plea, the court, speaking directly to the respondent and receiving the
respondent’s response, must:
(1) advise the respondent
(a) that by pleading guilty the respondent is giving up the right to a
contested hearing, and if the respondent is proceeding without legal
representation, the right to a lawyer’s assistance as set forth in subrule
(D)(1)(c);
(b) of the maximum possible jail sentence for the violation; and
19
(c) that if they plead guilty to violating the extreme risk protection order,
the court will automatically extend the duration of the extreme risk
protection order for 1 year after the expiration of the preceding order;
(2) ascertain that the plea is understandingly, voluntarily, and knowingly made;
and
(3) establish factual support for a finding that the respondent is guilty of the
alleged violation.
(F) Scheduling or Postponing Hearing. Following the respondent’s appearance or
arraignment, the court shall do the following:
(1) Set a date for the hearing at the earliest practicable time.
(a) The hearing of a respondent being held in custody for an alleged
violation of an extreme risk protection order must be held within 72
hours after the arrest, unless extended by the court on the motion of
the arrested individual or the prosecuting attorney. The court must set
a reasonable bond pending the hearing unless the court determines
that release will not reasonably ensure the safety of the respondent or
any other individual(s).
(b) If a respondent is released on bond pending the hearing, the bond may
include any condition specified in MCR 6.106(D) necessary to
reasonably ensure the safety of the respondent and other individuals,
including continued compliance with the extreme risk protection
order. The release order shall comply with MCL 765.6b.
(c) If the alleged violation is based on a criminal offense that is a basis
for a separate criminal prosecution, upon motion of the prosecutor, the
court may postpone the hearing for the outcome of that prosecution.
(2) Notify the prosecuting attorney of the contempt proceeding.
(3) Notify the petitioner and the petitioner’s attorney, if any, and the law
enforcement officer that filed the motion, if applicable, of the contempt
proceeding and direct the party to appear at the hearing and give evidence on
the charge of contempt.
(G) Prosecution After Arrest. If the court holds a contempt proceeding, the prosecuting
attorney must prosecute the proceeding.
20
(H) The Violation Hearing.
(1) Jury. There is no right to a jury trial.
(2) Conduct of the Hearing. The respondent has the right to be present at the
hearing, to present evidence, and to examine and cross-examine witnesses.
(3) Evidence; Burden of Proof. The rules of evidence apply to both criminal and
civil contempt proceedings. The prosecuting attorney has the burden of
proving the respondent’s guilt of criminal contempt beyond a reasonable
doubt and the respondent’s guilt of civil contempt by clear and convincing
evidence.
(4) Judicial Findings. At the conclusion of the hearing, the court must find the
facts specifically, state separately its conclusion of law, and direct entry of
the appropriate judgment. The court must state its findings and conclusion
on the record or in a written opinion made a part of the record.
(5) Sentencing. If the respondent is found in contempt, the court may impose
sanctions as provided by MCL 600.1701 et seq.
[NEW] Rule 3.722 Appeals
(A) Rules Applicable. Except as provided by this rule, appeals involving an extreme
risk protection order must comply with subchapter 7.200.
(B) From Entry of Extreme Risk Protection Order.
(1) Either party has an appeal of right from:
(a) an order granting, denying, or continuing an extreme risk protection
order after a hearing under MCR 3.718(D).
(b) an order granting or denying an extended extreme risk protection
order after a hearing under MCR 3.720(B).
(2) Appeals of all other orders are by leave to appeal.
(C) From Finding After Violation Hearing. The respondent has an appeal of right from
a judgment of sentence for criminal contempt entered after a contested hearing.
Staff Comment (ADM File No. 2023-24): The amendments adopt new rules MCR
3.715-3.722 to implement procedures for handling extreme risk protection order actions.
21
See Extreme Risk Protection Order Act, MCL 691.1801 et seq.
The staff comment is not an authoritative construction by the Court. In addition,
adoption of a new rule or amendment in no way reflects a substantive determination by this
Court.
C
LEMENT, C.J. (concurring). I concur with the Court’s adoption of the proposed
extreme risk protection order (ERPO) court rules, but write separately to address
inconsistent legal terminology used throughout the Extreme Risk Protection Order Act (the
Act). MCL 691.1805(3) requires an individual to file “a summons and complaint” to
initiate an ERPO action. Civil actions are commenced by filing a complaint with the court,
and the parties are respectively referred to as the “plaintiff” and “defendant.” See MCL
600.1901 et seq. However, complaints are used to set forth specific allegations against
defendants and inform them of the claims against which they are being called on to defend.
MCR 2.111(A) and (B). Defendants, in turn, are generally required to file responsive
pleadings addressing the plaintiff’s allegations and setting forth any legal or equitable
defenses. MCR 2.111(C) and (F).
On the other hand, a “petition” is “a formal written request presented to a court or
other official body.” Black’s Law Dictionary (11th ed). The individual requesting a
petition is the “petitioner,” whereas the party against whom the petition is filed is the
“respondent.” The Act appears to conflate these legal concepts, requiring a complaint to
initiate an ERPO action but referring to the parties as the petitioner and the respondent.
The nature of ERPO actions is consistent with that of a petition—not a complaint—
and I therefore encourage the Legislature to amend the Act to clarify that actions should be
initiated by filing a petition with the court. This is the same approach used in personal
protection actions under MCL 600.2950 and MCL 600.2950a, which are initiated by filing
a petition. The rules we adopt today use the term “complaint” to be consistent with the
language of the Act. However, we have defined the term to clarify that a complaint, in the
context of ERPO actions, means the act of petitioning the court to issue an order.
Z
AHRA, J., would decline to adopt these amendments.
V
IVIANO, J. (dissenting). I dissent from the Court’s adoption of these rules intended
to implement the Extreme Risk Protection Order Act (the ERPO Act), MCL 691.1801 et
seq. The ERPO Act sets forth elaborate procedures for the issuance and service of extreme
risk protection orders, along with procedures designed to ensure compliance with such
orders once they are issued. The act has many procedural flaws and raises serious
constitutional concerns. While the rules adopted today attempt to implement the statutory
directives and fill in some of the gaps, in my view they only exacerbate the constitutional
problems.
22
The most significant constitutional problem is presented by MCL 691.1807(8), the
anticipatory search warrant provision in the ERPO Act, and MCR 3.718(C), the rule
adopted today to implement it. MCL 691.1807(8) provides that if a court issues an extreme
risk protection order and orders the firearms immediately surrendered, the court
shall also issue an anticipatory search warrant, subject to and contingent on
the failure or refusal of the restrained individual, following the service of the
order, to immediately comply with the order and immediately surrender to a
law enforcement officer any firearm or concealed pistol license in the
individual’s possession or control, authorizing a law enforcement agency to
search the location or locations where the firearm, or firearms, or concealed
pistol license is believed to be and to seize any firearm or concealed pistol
license discovered during the search in compliance with 1966 PA 189, MCL
780.651 to 780.659.
Because this provision does not mention probable cause, it may be read as requiring
issuance of an anticipatory search warrant even without a probable cause determination.
However, although the provision was clumsily drafted, a better reading of it—and one that
would avoid any constitutional infirmities—is that a search warrant may only be issued “in
compliance with” our state’s laws governing the issuance of search warrants, i.e., “1966
PA 189, MCL 780.651 to 780.659.”
1
The rule adopted today appears to follow this view.
See MCR 3.718(C) (“If the affidavit establishes probable cause to believe the location or
locations to be searched are places where the firearm(s) or concealed pistol license is
believed to be, the court must issue the anticipatory search warrant.”).
However, while MCL 691.1807(8) may not be facially unconstitutional, it does not
adequately spell out the additional probable cause findings required for anticipatory search
warrants, as distinct from ordinary, run-of-the-mill search warrants. An “anticipatory
search warrant” is “a warrant based upon an affidavit showing probable cause that at some
future time (but not presently) certain evidence of crime will be located at a specified
place.” LaFave, 2 Search & Seizure (6th ed), § 3.7(c). In United States v Grubbs, 547 US
90, 96-97 (2006), the Supreme Court held that anticipatory search warrants are not
categorically unconstitutional. However, the Court held that they are only permissible if
the issuing court makes two specific findings of probable cause: “It must be true not only
that if the triggering condition occurs ‘there is a fair probability that contraband or evidence
1
In other words, MCL 691.1807(8) should be read so that the phrase requiring compliance
with 1966 PA 189 governs the issuance of an anticipatory search warrant, not just the latter
phrase in which it appears regarding the authority of a law enforcement agency to conduct
a search. The Legislature appears to have omitted a comma before the word “in,” which
would have made this interpretation flow more naturally. This reading is supported by the
fact that the other two times 1966 PA 189 is mentioned in the act, it is mentioned in
connection with the issuance of a search warrant. See MCL 600.1810(4) and (5).
23
of a crime will be found in a particular place,’ but also that there is probable cause to believe
the triggering condition will occur.” Id. (citations omitted). For an anticipatory search
warrant sought under MCL 691.1807(8), the “triggering condition” is explicitly set forth
in the statute—the respondent’s refusal to immediately comply with the order. Therefore,
to ensure compliance with the Fourth Amendment as interpreted by Grubbs, before issuing
an anticipatory search warrant under the ERPO Act, the court must find that the affidavit
establishes (1) probable cause to believe that if the respondent refuses to immediately
comply with the order, there is a fair probability that the respondent’s firearm(s) or
concealed pistol license will be found in the location or locations to be searched, and (2)
probable cause that the respondent will refuse to immediately comply with the order. The
rule adopted today confusingly omits this second required finding, and it will likely result
in the issuance and execution of anticipatory search warrants that violate the Fourth
Amendment. Since the United States Constitution trumps our court rule, trial judges should
carefully adhere to the Fourth Amendment and make the requisite probable cause findings,
even if our rule omits one of them.
Indeed, rather than skirting the constitutional requirements for anticipatory search
warrants, I believe the rule should have additional safeguards to protect against
unreasonable searches and seizures. In particular, the rule should require that anticipatory
search warrants specify the “condition placed by the issuing magistrate on the authorization
to search,” i.e. the “triggering condition.” Grubbs, 547 US at 100 (Souter, J., concurring
in part and concurring in the judgment). While the Grubbs majority found that this was
not required by the Fourth Amendment, other jurisdictions have nonetheless required
anticipatory search warrants to specify the triggering condition. See, e.g., State v Curtis,
139 Haw 486, 497-499 (2017). This appears to be the practice followed by the federal
district courts, since the federal form for anticipatory search warrants includes a section
directing the issuing judge to specify the triggering condition.
2
Justice Souter explained
the rationale for this added safeguard as follows:
An issuing magistrate’s failure to mention that condition can lead to
several untoward consequences with constitutional significance. To begin
with, a warrant that fails to tell the truth about what a magistrate authorized
cannot inform the police officer’s responsibility to respect the limits of
authorization, a failing as suming real significance when the warrant is not
executed by the official who applied for it and happens to know the unstated
condition. . . .
2
See United States Courts, Anticipatory Search and Seizure Warrant, Form AO 93B
(revised November 2013), available at
<https://www.uscourts.gov/sites/default/files/ao093b.pdf> (accessed February 2, 2024)
[https://perma.cc/E8GH-Q27Y].
I,
Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 6, 2024
24
Clerk
Nor does an incomplete anticipatory warrant address an owner’s
interest in an accurate statement of the government’s authority to search
property. [Id. at 100-101 (Souter, J., concurring in part and concurring in the
judgment) (citation omitted).]
Because I agree that this is the better practice, and even though it is omitted from the present
rule, I would encourage trial judges to require anticipatory search warrants to state the
triggering condition and to further state that the warrant may not be executed unless the
triggering condition has occurred. See generally United States v Brack, 188 F3d 748, 757
(CA 7, 1999) (explaining that the “purpose of the requirement that warrants conditioned
on future events be narrowly drawn is to avoid premature execution as a result of
manipulation or misunderstanding by the police”).
The rules adopted today create another significant constitutional infirmity by
eliminating the compliance hearing required by MCL 691.1810(4) and, instead, delegating
to the clerk of the court the duty of determining whether a respondent has complied with
the filing requirements following issuance of an extreme risk protection order. See MCR
3.719(D)(2) (“The clerk of the court must review the proof of service filed with the court
and determine whether the respondent has complied with the filing requirements of subrule
(D)(1).”). This is significant because a finding of noncompliance results either in the
issuance of a bench warrant or an order to show cause to initiate contempt proceedings and
may also result in the issuance of a search warrant. See MCR 3.719(D)(2)(b). This raises
serious due process concerns. See Sabbe v Wayne Co, 322 Mich 501, 503 (1948) (“We
have held that the duties and functions of county clerks are purely ministerial and that
judicial functions cannot be performed by court clerks, nor may the power to do so be
conferred upon them.”); see also Toms v Jeffries, 237 Mich 413, 416-417 (1927) (holding
that the clerk may sign a warrant nunc pro tunc, but only after the judge makes a probable
cause finding).
I believe the rules adopted today unnecessarily risk violations of our citizens’ due
process rights and right to be protected against unreasonable searches and seizures. This
Court should show more concern for the constitutional rights of our citizens than these
rules demonstrate. Rather than rush to adopt these rules before the act’s effective date, I
would take more time to address the constitutional issues noted above. For these reasons,
I respectfully dissent.
