Statutes: Michigan

(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 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 petition 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,

(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) or concealed pistol license will be found in the location or locations to be searched.

(D) Hearing.

(1) The court must expedite and give priority to hearings required by the extreme risk protection act.

(2) The court must schedule a hearing for the issuance of an extreme risk protection order in the following instances:

(a) The complaint does not request an ex parte order. If the petitioner does not request an ex parte order, the hearing must occur within 14 days of the date the complaint is filed.

(b) The 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) The court entered an ex parte order and the respondent requests a hearing.

(3) If the court enters an ex parte order or an immediate emergency ex parte order and the respondent requests a hearing, the hearing must occur

(a) unless 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) within 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 of the respondent’s parent(s), guardian, or custodian are known, the petitioner must 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 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.