Legislative Analysis
Phone: (517) 373-8080
EXTREME RISK PROTECTION ORDER ACT
http://www.house.mi.gov/hfa
(“RED FLAG” LAW)
Analysis available at
Senate Bill 83 as enacted http://www.legislature.mi.gov
Public Act 38 of 2023
Sponsor: Sen. Mallory McMorrow
House Bill 4146 as enacted
Public Act 37 of 2023
Sponsor: Rep. Kelly Breen
House Bill 4147 as enacted House Bill 4148 as enacted
Public Act 35 of 2023 Public Act 36 of 2023
Sponsor: Rep. Julie Brixie Sponsor: Rep. Stephanie A. Young
House Committee: Judiciary
Senate Committee: Civil Rights, Judiciary, and Public Safety
Complete to 2-9-24
SUMMARY:
Senate Bill 83 creates a new act, the Extreme Risk Protection Order Act, which does all of the
following:
• Specifies who can file an action requesting a court to issue an extreme risk protection
order (ERPO), where and how it can be filed, and the information to be included. An
ERPO prohibits the person subject to it from purchasing or possessing a firearm or
having or applying for a concealed pistol license (CPL) while the ERPO is in effect.
• Requires a court to issue an ERPO if it makes certain specified determinations by a
preponderance of the evidence, and allows a court to issue an ERPO without notifying
the person subject to it if certain additional conditions are met.
• Allows a firearm not surrendered to be seized upon notification or service of an ERPO,
requires a seized firearm to be stored while an ERPO is in force, and allows the
respondent to reclaim the firearm when an ERPO has ended.
• Allows an ERPO to be modified or rescinded.
• Prescribes procedures for court clerks and law enforcement officers.
• Requires certain hearings.
• Prescribes penalties for violations.
House Bill 4146 includes references to the new act and ERPOs in provisions regarding a license
to purchase, possess, carry, or transport a firearm and eligibility for a CPL.
House Bill 4147 amends provisions regarding service of process in civil actions to conform
with the new act and prohibits a fee from being charged or collected for serving process issued
in an action brought under the new act.
House Bill 4148 adds the felony violations created by the new act to the sentencing guidelines.
The bills take effect February 13, 2024.
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 Senate Bill 83 creates the Extreme Risk Protection Order Act, which allows certain individuals
(called petitioners) to file an action in the family division of circuit court requesting the court
to enter an ERPO. Any of the following may file such an action:
• A spouse or former spouse of the respondent (the individual the ERPO is requested
against).
• An individual who has a child in common with the respondent.
• An individual who has, or has had, a dating relationship with the respondent.
• An individual who resides, or has resided, in the same household with the respondent.
• A parent, child, sibling, grandparent, grandchild, uncle or aunt, or first cousin of the
respondent.
• A guardian of the respondent.
• A law enforcement officer.
• A health care provider, as long as bringing the action does not violate requirements of
the Health Insurance Portability and Accountability Act (HIPAA) regulations under
that act, or physician-patient confidentiality.
Dating relationship means a relationship that consists of frequent, intimate
associations primarily characterized by the expectation of affectional involvement. It
does not include a casual relationship or an ordinary fraternization between two
individuals in a business or social context.
Law enforcement officer means that term as defined in section 2 of the Michigan
Commission on Law Enforcement Standards (MCOLES) Act. 1
Health care provider means either of the following:
• A physician, physician’s assistant, nurse practitioner, or certified nurse
specialist who is licensed under the Public Health Code or in another state.
• A mental health professional.
Mental health professional means one of the following individuals who is trained and
experienced in the area of mental illness or developmental disabilities:
• A physician.
• A psychologist.
• A registered professional nurse licensed or authorized to engage in the practice
of nursing under the Public Health Code.
• A licensed master’s social worker licensed or authorized to engage in the
practice of social work at the master’s level under the Public Health Code.
• A licensed professional counselor licensed or authorized to engage in the
practice of counseling under the Public Health Code.
• A marriage and family therapist licensed or authorized to engage in the practice
of marriage and family therapy under the Public Health Code.
• A mental health professional licensed in another state.
1
http://legislature.mi.gov/doc.aspx?mcl-28-602
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 Filing an action
To file an action requesting an ERPO, an individual must file a summons and complaint on
forms approved by the State Court Administrative Office (SCAO) as directed by the Michigan
Supreme Court. 2 The complaint must state facts that show that issuance of an ERPO is
necessary because the respondent can reasonably be expected in the near future to intentionally
or unintentionally seriously physically injure themselves or someone else by possessing a
firearm, and has engaged in an act or acts or made significant threats that are substantially
supportive of this expectation. An ERPO action can be filed regardless of whether the
respondent owns or possesses a firearm. If the petitioner knows or believes that the respondent
owns or possesses firearms, the petitioner must state that in the complaint and, to the extent
possible, identify the firearms and provide their location and any additional information that
would help a law enforcement officer find them. If the petitioner knows that the respondent is
one of the following (referred to in this summary, but not in the bill, as armed officers or
employees), they also must provide that information in the complaint:
• An individual required to carry a pistol as a condition of their employment who is
issued a CPL.
• A police officer licensed or certified under the MCOLES Act.
• A sheriff or deputy sheriff.
• A member of the Department of State Police.
• A local corrections officer.
• An employee of the Department of Corrections.
• A federal law enforcement officer who carries a pistol during the normal course of their
employment.
• An officer of the Federal Bureau of Prisons.
If the respondent is an adult who resides in Michigan, the petitioner can file an ERPO action
in any Michigan county, regardless of where any party is located or resides. If the respondent
is a minor who resides in Michigan, the action must be filed in the county of residence of either
the petitioner or the respondent. If the respondent does not reside in Michigan, the action must
be filed in the petitioner’s county of residence. The court can enter an order to change the venue
of an ERPO action for any reason allowed under the Michigan Court Rules, including the
convenience of parties and witnesses. In deciding whether to change venue, the court can
consider the location of firearms owned or possessed by the respondent.
ERPO hearing procedures
The court where an ERPO action is filed must expedite and give priority to a hearing on the
issuance of an ERPO and any other hearings required under the act. Except for ex parte orders
(described below), the respondent must receive notice of, and be given an opportunity to be
heard at, a hearing on the issuance of an ERPO. The petitioner’s address cannot be disclosed
in any pleading or paper or otherwise, and the clerk of the court must maintain the petitioner’s
address as confidential in the court file. For any motion filed by the respondent or any hearing
scheduled by the court, the clerk must provide notice to the petitioner using the confidential
address. The court can allow ERPO proceedings to be held with video conferencing technology
or communication equipment as allowed under Michigan court rules and administrative orders.
2
For example: https://www.courts.michigan.gov/4908f2/siteassets/forms/scao-approved/cc452.pdf
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 Determination of whether to issue an ERPO
The court must issue an ERPO if it determines by the preponderance of the evidence that the
respondent can reasonably be expected in the near future to intentionally or unintentionally
seriously physically injure themselves or someone else by possessing a firearm, and has
engaged in an act or acts or made significant threats that substantially support this expectation.
In making its determination, the court must consider all of the following:
• Any history of use, attempted use, or threatened use of physical force by the respondent
against themselves or someone else, regardless of whether it involved a firearm.
• Any evidence of the respondent’s having a serious mental illness or serious emotional
disturbance that makes them dangerous to themselves or someone else.
• Any of the following previous or existing orders against the respondent:
o An ERPO.
o A personal protection order.
o A pretrial release order, probation order, or parole order.
o Any other injunctive order.
• Any violation by the respondent of a previous or existing ERPO.
• Any violation by the respondent of a previous or existing personal protection order.
• Any previous conviction of, criminal charges pending against, or previous or pending
juvenile delinquency petitions against the respondent for the commission or attempted
commission of any of the following offenses:
o A misdemeanor violation of section 81 of the Michigan Penal Code (assault
and battery).
o A violation of section 411h or 411i of the Michigan Penal Code or a similar
offense in another jurisdiction (stalking and aggravated stalking).
o An offense that has assault as an element.
o An offense that has an element including a threat to person or property.
o An offense that is a crime committed against the person or property of any of
the following:
 The spouse or a former spouse of the respondent.
 An individual who has a child in common with the respondent.
 An individual who has, or has had, a dating relationship with the
respondent.
 An individual who resides, or has resided, in the same household with
the respondent.
o An offense involving cruelty to or abuse of animals.
o A serious misdemeanor.
• Any evidence of recent unlawful use of controlled substances by the respondent.
• Any recent abuse of alcohol by the respondent.
• Any previous unlawful possession, use, display, or brandishing of a deadly weapon by
the respondent.
• Any evidence of the respondent’s acquisition or attempted acquisition of a deadly
weapon or ammunition within the previous 180 days (about six months).
• Any additional information the court finds reliable, including a statement by the
respondent or relevant information from family and household members concerning
the respondent.
• Any other facts the court believes are relevant.
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 Serious mental illness means a diagnosable mental, behavioral, or emotional disorder
affecting an adult that exists or has existed in the past year for long enough to meet
diagnostic criteria in the most recent Diagnostic and Statistical Manual of Mental
Disorders (DSM) published by the American Psychiatric Association and approved by
the Department of Health and Human Services (DHHS) and that has resulted in
functional impairment that limits or substantially interferes with one or more major life
activities. The term includes dementia with delusions, dementia with depressed mood,
and dementia with behavioral disturbance, but does not include any other dementia
unless it occurs in conjunction with another diagnosable serious mental illness. The
term includes a substance use disorder or a developmental disorder only if those
disorders occur in conjunction with another diagnosable serious mental illness.
Serious emotional disturbance means a diagnosable mental, behavioral, or emotional
disorder affecting a minor that exists or has existed in the past year for long enough to
meet diagnostic criteria in the most recent DSM and that has resulted in functional
impairment that limits or substantially interferes with the minor’s role or functioning
in family, school, or community activities. The term includes a substance use disorder
or a developmental disorder only if those disorders occur in conjunction with another
diagnosable serious emotional disturbance.
Serious misdemeanor means a violation of one or more of the following:
• Section 81 of the Michigan Penal Code (assault and battery).
• Section 81a of the Michigan Penal Code (aggravated assault).
• Section 81c(1) of the Michigan Penal Code (threatening DHHS employee).
• Section 115 of the Michigan Penal Code (breaking and entering).
• Section 136b(7) of the Michigan Penal Code (fourth degree child abuse).
• Section 145 of the Michigan Penal Code (contributing to delinquency).
• Section 145d of the Michigan Penal Code (using computer to make prohibited
communication).
• Section 174a(2) or (3)(b) of the Michigan Penal Code (embezzlement from a
vulnerable adult of less than $200).
• Section 174a(3)(a) of the Michigan Penal Code (embezzlement from a
vulnerable adult of $200 to $1,000).
• Section 233 of the Michigan Penal Code (aiming a firearm without malice).
• Section 234 of the Michigan Penal Code (discharge of aimed firearm).
• Section 235 of the Michigan Penal Code (discharge of aimed firearm resulting
in injury).
• Section 335a of the Michigan Penal Code (indecent exposure).
• Section 411h of the Michigan Penal Code (stalking).
• Section 601b(2) of the Michigan Vehicle Code (injuring worker in work zone).
• Section 601d(1) or (2) of the Michigan Vehicle Code (moving violation
causing death or serious impairment of a body function).
• Section 617a of the Michigan Vehicle Code (leaving scene of personal injury
accident).
• Section 625 of the Michigan Vehicle Code (operating vehicle while under the
influence or impaired)—if the violation involves an accident resulting in
damage to another’s property or physical injury or death to another.
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 • Section 701 of the Michigan Liquor Control Code—if the violation involves
selling or furnishing alcoholic liquor to an individual under 21 and results in
physical injury or death.
• Section 80176(1) or (3) of the Natural Resources and Environmental Protection
Act (operating vessel while under the influence or impaired)—if the violation
involves an accident resulting in damage to another’s property or physical
injury or death.