In Michigan, a person can petition the circuit court to enter a personal protection order against another person restraining him or her from coming into contact with or entering the premises where the petitioner is located. If a valid personal protection order is entered against you (even on an ex parte basis by the judge without your input), then your rights to use or possess a firearm will be affected as well. This blog article will explore the various civil and criminal consequences that a PPO could have on gun rights.
THE TERMS OF THE PPO MAY PROHIBIT USE OR POSSESSION OF FIREARMS ON ITS FACE
Michigan law does not make it automatically illegal for a person to have a gun if there is a personal protection order entered against them. The judge has the option to include a firearm prohibition in the personal protection order at the time of issuance.
In a domestic relationship PPO, the judge may “restrain or enjoin a spouse, a former spouse, an individual with whom he or she has had a child in common, an individual with whom he or she has or has had a dating relationship, or an individual residing or having resided in the same household as the petitioner from… [p]urchasing or possessing a firearm.” MCL 600.2950(1)(e). “If the respondent is a person who is issued a license to carry a concealed weapon and is required to carry a weapon as a condition of his or her employment, a police officer…, a sheriff, a deputy sheriff or a member of the Michigan department of state police, a local corrections officer, department of corrections employee, or a federal law enforcement officer who carries a firearm during the normal course of his or her employment, the petitioner shall notify the court of the respondent’s occupation before issuance of the personal protection order.” MCL 600.2950(2). This does not apply, however, if the petitioner does not know the respondent’s occupation. Id. “If the respondent is a person described [in one of the occupations above] and the personal protection order prohibits him or her from purchasing or possessing a firearm, the court shall schedule a hearing on the motion to modify or rescind the ex parte personal protection order within 5 days after the motion is filed.” MCL 600.2950(14).
In an non-domestic PPO involving a respondent accused of stalking or aggravated stalking, the judge “may restain or enjoin an individual an individual against whom a protection order is sought” from “[p]urchasing or possessing a firearm.” MCL 600.2950a(3)(c). “If the respondent to a petition… is an individual who is issued a license to carry a concealed weapon and is required to carry a weapon as a condition of his or her employment, a police officer…, a sheriff, a deputy sheriff or a member of the Michigan department of state police, a local corrections officer, a department of corrections employee, or a federal law enforcement officer who carries a firearm during the normal course of his or her employment, the petitioner shall notify the court of the respondent’s occupation before the personal protection order is issued.” MCL 600.2950a(5). This does not apply, however, if the petitioner does not know the respondent’s occupation. Id. “If the respondent is a person described in [one of the occupations above] and the personal protection order prohibits him or her from purchasing or possessing a firearm, the court shall schedule a hearing on the motion to modify or rescind the ex parte personal protection order within 5 days after the motion to modify or rescind is filed.” MCL 600.2950a(14).
A personal protection order, whether domestic or non-domestic, remains in effect up to one year unless the respondent successfully terminates the PPO earlier.
A PERSON SUBJECT TO A PPO MAY NOT OBTAIN A CONCEALED PISTOL LICENSE IN MICHIGAN
The county clerk shall not issue a license to carry a concealed pistol to an applicant if the applicant is subject of a domestic PPO under MCL 600.2950 or a non-domestic PPO under MCL 600.2950a. MCL 28.425b(7)(d)(iii).
The respondent cannot apply for and obtain a CPL until the PPO either expires or is terminated.
A PERSON SUBJECT TO A DOMESTIC PPO MAY BE PROHIBITED FROM POSSESSING A FIREARM UNDER FEDERAL LAW
According to 18 U.S.C. §922(g)(8): “It shall be unlawful for any person… who is subject to a court order that”:
- “[W]as issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;” AND
- “[R]estrains 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
- “[I]ncludes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; OR 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;”
“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 federal law is applicable to domestic PPOs issued in Michigan, not non-domestic PPOs, since the petitioner must be an “intimate partner”. Under federal law, “[t]he term ‘intimate partner’ means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.” 18 U.S.C. §921(a)(32). A prosecution under federal law requires that the respondent of the PPO received “actual notice” and had “an opportunity to participate”. Arguably, the respondent could not violate federal law until he or she was served with an ex parte PPO, filed a motion to terminate the PPO, and then a judge upheld the validity of the PPO after a full hearing. In other states, a restraining order granted ex parte generally requires that a court date be held in the future so the respondent is automatically given the opportunity to respond. In Michigan, the respondent is not automatically given a court date and the burden is on him or her to file a motion to terminate or else the PPO will remain in force for its entire duration.
Whoever violates 18 U.S.C. §922(g)(8) is guilty of a felony punishable by a fine up to $250,000.00 or up to 15 years in prison, or both. 18 U.S.C. §924(a)(8).
VIOLATING A PERSONAL PROTECTION ORDER CAN RESULT IN SERIOUS PENALTIES, BUT A SKILLED LAWYER CAN HELP
The judge has the power to impose both civil contempt and criminal contempt sanctions after a violation hearing if the court determines a PPO was violated by the respondent The penalties for civil contempt include paying any fine (up to $7,500.00), costs or expenses of the proceeding, or coerce the respondent to comply with the order by threat of imprisonment up to 93 days until compliance is achieved. MCL 600.1715. If there was an actual loss or injury to the petitioner, the court can also order civil sanctions to compensate the petitioner for out-of-pocket expenses including attorney’s fees. MCL 600.1721. The penalty for criminal contempt, whether the respondent pleads guilty or is found guilty after a hearing, is up to 93 days in jail or a fine up to $500.00, or both. MCR 3.708(H)(5)(a); MCL 600.2950(23); MCL 600.2950a(23). The court may also impose other conditions on the existing PPO. MCR 3.708(H)(5).
If you are served with a PPO and it affects your rights to possess a firearm, then you should consider filing a motion to terminate the PPO immediately. The respondent may file a motion to modify or terminate the PPO within 14 days of being served with the ex parte order or receiving actual notice of the order. MCR 3.707(A)(1)(b). If the respondent lets 14 days lapse before filing a motion, he or she must also show good cause why the court should hear the request after the delay. Upon the filing of a motion to modify or terminate, the court must schedule a hearing within 14 days. MCR 3.707(A)(2). However, the court must schedule the hearing within 5 days after the motion is filed if the PPO prohibits the respondent from purchasing or possessing a firearm AND the respondent is licensed to carry a concealed weapon as is required to carry a weapon as part of his or her employment as a police officer, sheriff, deputy sheriff, corrections officer, Michigan Department of Corrections employee or federal law enforcement officer.
At a hearing on a motion to modify or terminate the PPO, the petitioner has the burden of justifying the continuation of a PPO that was granted ex parte. MCR 3.310(B)(5); Pickering v Pickering, 253 Mich App 694, 698-699; 659 NW2d 649 (2002). Even though the petitioner already obtained the court order and did not file the objection, the law compels the petitioner to stand by his or her claims in the original PPO petition and produce legally admissible evidence in court.
The standard of proof that the petitioner is held to depends on the type of PPO that was obtained ex parte. For a domestic PPO, the petitioner must show that the respondent is an individual with whom the petitioner has a child in common, an individual with whom the petitioner had a dating relationship, or an individual residing or having resided in the same household as the petitioner AND there was reasonable cause to believe that the respondent had engaged in one or more prohibited acts under MCL 600.2950(1). For a non-domestic PPO, the petitioner must prove that the respondent had engaged in conduct amounting to stalking (MCL 750.411h(d)), aggravated stalking (MCL 750.411i(2)), or cyberstalking (MCL 750.411s(1)) according to Michigan law.
Anyone served with a PPO should obtain sound legal advice immediately regarding what their options are. If you or a loved one have further questions or need legal representation, then do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC today.