6.7Firearms Restrictions Resulting From Entry of a Court Order
In Michigan, court-ordered personal protection orders (PPOs), conditional pretrial release orders, and probation orders may, by their terms, prohibit an individual from purchasing, possessing, or receiving a firearm. See MCL 600.2950(1)(e); MCL 600.2950a(26); MCL 765.6b(3); MCL 771.3(2)(o). Federal statutory firearms restrictions also apply under 18 USC 922(g)(8), which prohibits an individual subject to certain court orders from possessing or receiving firearms or ammunition
Under Michigan law, PPOs, extreme risk protection orders (ERPOs), and conditional release orders protecting a named person also give rise to licensing restrictions. See MCL 28.422(3)(a); MCL 28.425b(7)(d).
A.Federal Restrictions on Possession or Receipt of Firearms or Ammunition After Entry of a Court Order
18 USC 922(g)(8) prohibits a person who is subject to a court order that restrains him or her from abusing an intimate partner or intimate partner’s child from possessing or receiving firearms or ammunition:
“(g) It shall be unlawful for any person—
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(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]
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to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
The penalty for knowingly violating 18 USC 922(g)(8) is a fine and/or a maximum ten-year prison term. 18 USC 924(a)(2).1 “[I]n a prosecution under [18 USC 922(g)] and [18 USC 924(a)(2)], the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v United States, 588 US ___, ___ (2019) (“hold[ing] that the word ‘knowingly’ [contained in 18 USC 924(a)(2)] applies both to the defendant’s conduct and to the defendant’s status”).2
A person may apply to the US Attorney General for relief from disabilities imposed under 18 USC 922(g)(8). See 18 USC 925(c). 18 USC 925(c) permits the US Attorney General to grant the requested relief “if it is established to [the US Attorney General’s] satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”
Federal law also prohibits the sale or other disposal of firearms or ammunition to a individuals subject to certain court orders. See 18 USC 922(d)(8) and 18 USC 924(a)(2), which impose a fine and/or a maximum ten-year prison term against a person who sells or otherwise disposes of a firearm or ammunition to someone he or she knows or has reasonable cause to believe “is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child[.]”3
B.Michigan’s Restrictions on the Purchase or Possession of Firearms After Entry of a Court Order
MCL 600.2950(1)(e) (domestic relationship PPOs) and MCL 600.2950a(26) (nondomestic stalking and nondomestic sexual assault PPOs) authorize a court to restrain or enjoin a respondent from purchasing or possessing a firearm.
Note: MCL 600.2950(2) and MCL 600.2950a(5) require a petitioner seeking a PPO to inform the court of the respondent’s occupation before issuance of the PPO if the respondent has a concealed weapons permit and “is required to carry a weapon as a condition of his or her employment” or is a law enforcement officer specified in the statutory provisions. Neither of these provisions apply to a petitioner who does not know the respondent’s occupation. MCL 600.2950(2); MCL 600.2950a(5). For additional information on firearms restrictions against law enforcement employees, see Section 6.8.
2.Conditional Pretrial Release Orders
MCL 765.6b(1) and MCL 765.6b(3) (conditional pretrial release orders) authorize a court to release any defendant subject to protective “conditions reasonably necessary for the protection of 1 or more named persons[,]” which include “impos[ing] a condition that the defendant not purchase or possess a firearm.”4 However, the court must impose a condition that the defendant not purchase or possess a firearm “if the court orders the defendant to carry5 or wear an electronic monitoring device as a condition of release as described in [MCL 765.6b(6).6]” MCL 765.6b(3).
MCL 771.3(2)(o) (probation orders) authorizes a court to require any probationer, as a condition of his or her probation, to “[b]e subject to conditions reasonably necessary for the protection of 1 or more named persons.”7
C.Michigan Licensing Restrictions Resulting From Entry of a Court Order
The issuance of a Michigan personal protection order (PPO) under MCL 600.2950 or MCL 600.2950a, or the issuance of an order for conditional pretrial release under MCL 765.6b, or the issuance of an extreme risk protection order (ERPO) under MCL 691.1807, can result in restrictions on obtaining a firearm license or a license to carry a concealed pistol.
1.Restrictions on Obtaining a Firearm License
Under MCL 28.422(3)(a),8 the following individuals are disqualified from obtaining a license to purchase, carry, or transport a firearm:
•Individuals subject to a domestic relationship PPO issued under MCL 600.2950, a nondomestic stalking PPO issued under MCL 600.2950a(1), a nondomestic sexual assault PPO issued under MCL 600.2950a(2), or an ERPO issued under MCL 691.1807. MCL 28.422(3)(a)(iii)-(iv), (viii).
•Individuals subject to conditional pretrial release orders issued for the protection of a named person under MCL 765.6b, if the order specifies that the defendant may not purchase or possess a firearm. MCL 28.422(3)(a)(vi).
The firearm license disqualification does not apply unless the restrained individual received notice and an opportunity for a hearing in the court proceeding in which the PPO or conditional release order was issued.9 MCL 28.422(3)(a).
The firearm license disqualification also does not apply unless the PPO or conditional release order was entered into the law enforcement information network (LEIN) network. MCL 28.422(3)(a). MCL 28.422b(1) requires individuals who are disqualified from obtaining a firearm license to receive notice of their disqualification from the department of state police upon entry of the order into the LEIN.10 However, “[t]he department of state police shall not send written notice of an entry of an order or disposition into the [LEIN] as required for a [PPO] issued under . . . MCL 600.2950 [or] [MCL] 600.2950a, or an extreme risk protection order [ERPO] issued under the [ERPO Act], until the department has received notice that the respondent of the order has been served with or has received notice of the [PPO] or [ERPO].” MCL 28.422b(5).
“[A] person who obtains a firearm in violation of . . . MCL 28.422 [the firearm licensing statute], is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.”11 MCL 750.232a(1).
2.Restrictions on Obtaining a Concealed Pistol License
Under MCL 28.425b(7)(d),12 an applicant will be denied a concealed pistol license if the county clerk determines, “[b]ased solely on the report received from the department of state police under [MCL 28.425b(6)13][:]”
•the applicant was the subject of a domestic relationship PPO issued under MCL 600.2950, a nondomestic stalking PPO issued under MCL 600.2950a(1), or a nondomestic sexual assault PPO issued under MCL 600.2950a(2). MCL 28.425b(7)(d)(iii).
•the applicant was the subject of a conditional pretrial release order issued under MCL 765.6b, if the order specifies that the defendant may not purchase or possess a firearm. MCL 28.425b(7)(d)(iv).
•the applicant was the subject of an ERPO. MCL 28.425b(7)(d)(vi).
Note: MCL 28.425b(11) requires “the county clerk [to] send by first-class mail a notice of statutory disqualification for a license under this act to an individual if the individual is not qualified under [MCL 28.425b(7)] to receive that license.”
The concealed pistol restrictions in MCL 28.425b(7)(d) apply regardless of whether the person subject to the order received notice and an opportunity to be heard in the court proceeding in which the PPO or conditional release order was issued. See MCL 28.425b(7)(d), which does not provide the same requirements as set out under MCL 28.422(3)(a) (specifically requiring the individual to receive notice and an opportunity to be heard when the order was issued before the pistol licensing disqualification applies).
“Upon entry of a court order[14] or conviction of 1 of the enumerated prohibitions for using, transporting, selling, purchasing, carrying, shipping, receiving or distributing a firearm in [MCL 28.425b,] the department of state police shall immediately enter the order or conviction into the law enforcement information network [(LEIN)].” MCL 28.425b(8).
A person who carries a concealed pistol without a license is “guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.” MCL 750.227(2)-(3).
1 See 18 USC 925(a)(1) for exemptions from federal firearm restrictions, which includes exemptions in certain circumstances for “the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.” Note, however, 18 USC 922(g)(8) prohibits a person who is subject to a court order that restrains him or her from abusing an intimate partner or intimate partner’s child from “ship[ping] or transport[ing] in interstate or foreign commerce, or possess[ing] in or affecting commerce, any firearm or ammunition; or [] receiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
2 The Rehaif Court “express[ed] no view, however, about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other [18 USC 922(g)] provisions not at issue here.” Rehaif, 588 US at ___. In Rehaif, the Court specifically addressed 18 USC 922(g)(5) (alien illegally or unlawfully in the United States); it is uncertain to what extent its findings would apply to 18 USC 922(g)(8).
3 18 USC 922(d)(8) only applies “to a court order that[:] (A) was issued after a hearing of which [the [person subject to the court order] received actual notice, and at which such person had the opportunity to participate; and (B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by it terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]”
4 See also MCR 6.106(D)(2)(k), which provides that the court may impose a condition on the defendant’s pretrial release that requires the defendant “not possess a firearm or other dangerous weapon[.]” For a detailed discussion of conditional pretrial release orders, see Section 3.5.
5 MCL 765.6b(3) still contemplates an order to carry an electronic monitoring device, but see MCL 765.6b(6), which was amended effective June 11, 2013, to no longer authorize a court to order a defendant to carry an electronic monitoring device. See 2013 PA 54.
6 MCL 765.6b(6) permits the court to “order [a] defendant to wear an electronic monitoring device as a condition of release” where “[the] defendant . . . is charged with a crime involving domestic violence, or any other assaultive crime, [and] is released under [MCL 765.6b(1) and MCL 765.6b(6).]” For additional information on a conditional pretrial release order containing a condition of wearing an electronic monitoring device, see Section 3.5.
7 For a detailed discussion of probation orders, see Section 3.6.
8 MCL 28.422(3)(a) lists other types of individuals who are also disqualified from obtaining a firearm license. However, discussion of those individuals is outside the scope of this benchbook. See the statute for the full list.
9 Compare the concealed pistol licensing restrictions under MCL 28.425b(7)(d), which does not indicate that the restrained party must have had notice of disqualifying proceeding when the order was issued.
10 “[T]he department of state police shall immediately send written notice of [the disqualification] to the individual who is the subject of the order or disposition by first-class mail to the last known address of the individual.” MCL 28.422b(1). The notice must at least include the name of the disqualified individual, the date of the disqualifying order’s entry into LEIN, a statement that the individual cannot obtain a firearm license or concealed weapon license until the order or disposition is removed from the LEIN, and a statement that the individual may request that the state police correct or expunge inaccurate information from the LEIN. Id. MCL 28.422b(2)-(4) provide for proceedings for correction or expungement.
11 “A person who intentionally makes a material false statement on an application for a license to purchase a firearm under [MCL 28.422], is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.” MCL 750.232a(3). See also MCL 28.422(14), which also makes it a “felony punishable for not more than 4 years or a fine of not more than $2,000.00, or both” for “[a] person who forges any matter on an application for a license under [MCL 28.422][.]” “A person who uses or attempts to use false identification or the identification of another person to purchase a firearm is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.” MCL 750.232a(4).
12 MCL 28.425b(7)(d) lists other types of individuals who are also disqualified from obtaining a concealed pistol license. However, discussion of those individuals is outside the scope of this benchbook. See the statute for the full list.
13 MCL 28.425b(6) requires “the department of state police [to] verify the requirements of [MCL 28.425b(7)(d)], [MCL 28.425b(7)(e)], [MCL 28.425b(7)(f)], [MCL 28.425b(7)(h)], [MCL 28.425b(7)(i)], [MCL 28.425b(7)(j)], [MCL 28.425b(7)(k)], and [MCL 28.425b(7)(n)] through the law enforcement information network [(LEIN)] and the national instant criminal background check system [(NICS)] and [to] report to the county clerk all statutory disqualifications, if any, under this act that apply to an applicant.”
14 See Section 6.7 for information on firearms restrictions resulting from a court order.