Michigan's Extreme Risk Protection Order (ERPO) Act, 2023 PA 38 (MCL 691.1801 et seq.), took effect on February 13, 2024. The act creates a civil court...
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Michigan's Extreme Risk Protection Order (ERPO) Act, 2023 PA 38 (MCL 691.1801 et seq.), took effect on February 13, 2024. The act creates a civil court process that lets certain individuals petition the family division of the circuit court to prohibit a person from purchasing or possessing firearms and to order that person to surrender any firearms they have. The popular name of the act is the "red flag law" (MCL 691.1801).
This page summarizes the statute. It is general information, not legal advice. If you are involved in an ERPO proceeding, talk to a licensed Michigan attorney.
Only the individuals listed in MCL 691.1805(2) may file an action for an ERPO. The statute lists nine categories:
The act does not authorize a "prosecuting attorney" or a "law enforcement agency" (the institution) to file the original petition. Only an individual law enforcement officer may petition (MCL 691.1805(2)(h)). The prosecuting attorney's role appears later, at the enforcement stage: while an order is in effect, the prosecuting attorney for the county or a law enforcement officer may file an affidavit alleging that the restrained individual still has a firearm or concealed pistol license (MCL 691.1810(5)).
A petitioner may file regardless of whether the respondent owns or possesses a firearm (MCL 691.1805(4)). The petitioner's address is kept confidential in the court file (MCL 691.1805(7)). A petitioner who knowingly and intentionally makes a false statement to the court is subject to criminal penalties (see "False Statements in ERPO Complaints" below).
This is the part of the statute most often misstated. The court issues an ERPO only if it determines, by a preponderance of the evidence, that the respondent meets a two-part test:
Both parts must be shown. A general "significant risk" is not enough on its own. The statute requires the near-future temporal element plus prior acts or significant threats.
In making this determination, the court must consider all of the factors listed in MCL 691.1807(1)(a) through (l), including:
1. Order without notice (MCL 691.1807(2)). The court may issue an ERPO without written or oral notice to the respondent if it determines, by clear and convincing evidence from specific facts in a verified complaint, written motion, or affidavit, that immediate and irreparable injury, loss, or damage will result from the delay required to give notice, or that giving notice will itself precipitate adverse action before the order can be issued. If a petitioner requests an order under this subsection, the court must make its determination not later than 1 business day (MCL 691.1807(2)).
If the court issues an order without notice, the restrained individual may request a hearing under the full MCL 691.1807(1) standard. That hearing is held not later than 14 days after the order is served or actual notice is received, or not later than 5 days if the restrained individual is one of the individuals described in MCL 691.1805(5), such as someone required to carry a pistol for employment (MCL 691.1807(3)).
2. Emergency order requested by a law enforcement officer (MCL 691.1807(4)). A petitioner who is a law enforcement officer responding to a complaint involving the respondent may request an immediate emergency ERPO under subsection (2), including verbally over the telephone, and the judge or magistrate on duty may issue it. Within 1 business day after the order is entered, the officer must file a sworn written petition detailing the facts and circumstances (MCL 691.1807(4)).
A restrained individual may move to modify or rescind an order at any time, subject to limits on how many motions may be filed in each six-month period (MCL 691.1807(5)). At a hearing on such a motion, the restrained individual must prove by a preponderance of the evidence that they no longer pose a risk of serious physical injury by possessing a firearm (MCL 691.1807(6)).
An individual who refuses or fails to comply with an ERPO is guilty of a felony, with escalating penalties. These penalties may be imposed in addition to any penalty for another criminal offense arising from the same conduct (MCL 691.1819(1)).
| Offense | Classification | Maximum Imprisonment | Maximum Fine |
|---|---|---|---|
| First offense | Felony | 1 year | $1,000.00 |
| Second offense | Felony | 4 years | $2,000.00 |
| Third or subsequent offense | Felony | 5 years | $20,000.00 |
If a court or jury finds that the restrained individual refused or failed to comply with an ERPO, the court shall issue an extended order effective for 1 year after the expiration of the preceding order (MCL 691.1819(2)). The court may also enforce the order by charging the restrained individual with contempt of court under chapter 17 of the Revised Judicature Act of 1961, MCL 600.1701 to 600.1745 (MCL 691.1819(3)).
A petitioner who knowingly and intentionally makes a false statement to the court in the complaint or in support of the complaint is subject to escalating penalties. Note that the first offense here is a misdemeanor, while a second or later offense is a felony.
| Offense | Classification | Maximum Imprisonment | Maximum Fine |
|---|---|---|---|
| First offense | Misdemeanor | 93 days | $500.00 |
| Second offense | Felony | 4 years | $2,000.00 |
| Third or subsequent offense | Felony | 5 years | $20,000.00 |
An individual who knowingly places a firearm in the possession of an individual who is restrained under an ERPO is guilty of a felony punishable by imprisonment for not more than 1 year, a fine of not more than $1,000.00, or both (MCL 691.1819(5)).
A personal protection order issued under section 2950 or 2950a of the Revised Judicature Act of 1961, MCL 600.2950 and 600.2950a, can also restrict firearms. The ERPO Act expressly does not limit a petitioner's ability to seek relief under those PPO statutes (MCL 691.1820(a)) or to file a petition under section 434 of the mental health code, MCL 330.1434 (MCL 691.1820(b)). A violation of a personal protection order is enforced through criminal contempt under the PPO statutes themselves.
The State Court Administrative Office, acting at the direction of the supreme court, must prepare an annual report on the application of the ERPO Act. The report includes the number of actions filed, orders issued and denied, orders issued without notice, orders rescinded, orders renewed, the number of restrained individuals later charged with a crime, the number of petitioners prosecuted for false statements, the number of individuals prosecuted for providing a firearm to a restrained individual, and demographic data (MCL 691.1821).
United States v. Rahimi (2024). In United States v. Rahimi, 602 U.S. 680 (2024), the U.S. Supreme Court upheld the federal firearm prohibition at 18 U.S.C. 922(g)(8) for a person subject to a qualifying domestic-violence restraining order, holding that the disability is consistent with the nation's historical tradition of firearm regulation under New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022). Rahimi is the controlling Supreme Court authority on the constitutionality of federal firearm disabilities tied to court orders. It is relevant to any state red-flag analysis to the extent these frameworks share mechanics with the federal 922(g)(8) prohibitor. A Michigan ERPO is a state civil order under state law and is distinct from the federal domestic-violence prohibitor.
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