Chapter 9: Extreme Risk Protection Orders—Red Flag Law

9.1Initiating an Action for Issuance of an Extreme Risk Protection Order (ERPO)

Specified individuals may file a petition for an ERPO to limit a respondent’s possession, control, or ability to acquire a firearm under certain circumstances.1 See MCL 691.1801 et seq., Extreme Risk Protection Order Act (ERPO Act—Red Flag Law).2

A.Who May File an ERPO Action

The following individuals may file an action requesting that the court issue an ERPO:

•A respondent’s spouse.

•A respondent’s former spouse.

•An individual having a child in common with the respondent.

•An individual who has or has had a dating relationship with the respondent.

•An individual residing with or who has resided in the same household with the respondent.

•A respondent’s family member.

•A respondent’s guardian.

•A law enforcement officer.

•A health care provider if doing so would not violate HIPAA (Health Insurance Portability and Accountability Act of 1996, Public Law 104-191), regulations promulgated under HIPAA (45 CFR 160 and 164), or physician-patient confidentiality. MCL 691.1805(2)(a)-(i); MCR 3.716(A)(2)(a)-(g).

B.Requirements of Petition/Complaint

An ERPO action must be filed in the family division of circuit court. MCL 691.1805(1); MCR 3.716(A)(1). Petitioner must file a summons and complaint on forms approved by the State Court Administrative Office (SCAO). MCL 691.1805(3); MCR 3.716(A)(1).

1.Venue

If the respondent is an adult, venue is proper in any county in Michigan, without regard to the residency or location of any party. MCL 691.1805(8)(a); MCR 3.716(F)(1).

If the respondent is a minor, venue is proper in either the petitioner’s or respondent’s county of residence. MCL 691.1805(8)(b); MCR 3.716(F)(2).

If the respondent does not live in Michigan, venue is proper in the county where the petitioner resides. MCL 691.1805(8)(c); MCR 3.716(F)(3).

2.Content

“The complaint must state facts that show that issuance of an [ERPO] is necessary because the respondent can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, 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.” MCL 691.1805(3); see also MCR 3.716(B)(3).

An individual may file an action under the ERPO Act regardless whether the respondent owns or possesses a firearm. MCL 691.1805(4); MCR 3.716(A)(1).

3.Respondent’s Identity

If the petitioner knows that the respondent is one of the following individuals, the petitioner must state the fact in the complaint:

•An individual who is required to carry a pistol as a condition of employment and who has been issued a license to carry a concealed pistol.

•A police officer licensed or certified under MCOLES (Michigan Commission On Law Enforcement Standards Act), MCL 28.601 et seq.

•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 the officer’s employment.

•An officer of the Federal Bureau of Prisons. MCL 691.1805(5)(a)-(h); MCR 3.716(B)(4)(a)-(b).

4.Respondent’s Firearms

If a petitioner knows or believes that a respondent owns or possesses firearms, the petitioner must state that information in the complaint. MCL 691.1805(6); MCR 3.716(B)(5). The petitioner must identify the firearms to the extent possible and provide the location of the firearms and any other information that would help a law enforcement officer find the firearms. MCL 691.1805(6); MCR 3.716(B)(5).

C.Address of Petitioner Is Confidential

In an ERPO action, the court clerk must maintain the petitioner’s address as confidential in the court file. MCL 691.1805(7); MCR 3.716(C). The petitioner’s address must not be disclosed in any pleading or paper or otherwise, and the clerk must give notice of hearing to the petitioner using the confidential address for any motion filed by the respondent or any other hearing scheduled by the court. MCL 691.1805(7); MCR 3.716(C).

D.False Statement In Complaint or In Support of Complaint

The following penalties apply to a petitioner who knowingly and intentionally makes a false statement to the court in the complaint or in support of the complaint:

•First offense: a petitioner is guilty of a misdemeanor punishable for not more than 93 days of imprisonment, a fine of not more than $500, or both. MCL 691.1819(4)(a).

•Second offense: a petitioner is guilty of a felony punishable for not more than four years of imprisonment, a fine of not more than $2,000, or both. MCL 691.1819(4)(b).

•Third or subsequent offense: a petitioner is guilty of a felony punishable for not more than five years of imprisonment, a fine of not more than $20,000, or both. MCL 691.1819(4)(c).

E.Other Relief Available to Petitioner

The ERPO Act does not limit a petitioner’s ability to request relief under MCL 600.2950 (domestic relationship PPOs) and MCL 600.2950a (nondomestic relationship PPOs). MCL 691.1820(a). Nor does the ERPO Act limit a petitioner’s ability to file a petition under MCL 330.1434 (petition asserting that an individual is a person requiring treatment under the Mental Health Code). MCL 691.1820(b).

1   “When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” United States v Rahimi, 602 US ___, ___ (2024).

2   There are no fees for filing a complaint under the ERPO Act. MCR 3.716(A)(1). The fee prescribed in MCL 600.2529(1)(a) for civil actions does not apply to ERPO actions. MCL 600.2529(1)(a).