HB-5225, As Passed House, June 13, 2012

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5225

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1927 PA 372, entitled

 

"An act to regulate and license the selling, purchasing,

possessing, and carrying of certain firearms and gas ejecting

devices; to prohibit the buying, selling, or carrying of certain

firearms and gas ejecting devices without a license or other

authorization; to provide for the forfeiture of firearms under

certain circumstances; to provide for penalties and remedies; to

provide immunity from civil liability under certain circumstances;

to prescribe the powers and duties of certain state and local

agencies; to prohibit certain conduct against individuals who apply

for or receive a license to carry a concealed pistol; to make

appropriations; to prescribe certain conditions for the

appropriations; and to repeal all acts and parts of acts

inconsistent with this act,"

 

by amending sections 2b, 6, and 14a (MCL 28.422b, 28.426, and

 

28.434a), section 2b as amended by 2001 PA 199, section 6 as added

 

by 2005 PA 242, and section 14a as added by 2010 PA 295, and by

 

adding section 2c; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 


     Sec. 2b. (1) Except as provided in subsection (6), upon entry

 

of an order or disposition into the law enforcement information

 

network under any provision of law described in section 2(3)(a),

 

subsection (7), the department of state police shall immediately

 

send written notice of that entry to the person who is the subject

 

of the order or disposition. The notice shall be sent by first-

 

class mail to the last known address of the person. The notice

 

shall include at least all of the following:

 

     (a) The name of the person.

 

     (b) The date the order or disposition was entered into the law

 

enforcement information network.

 

     (c) A statement that the person cannot obtain a license to

 

purchase a pistol or obtain a concealed weapon license until the

 

order or disposition is removed from the law enforcement

 

information network.

 

     (d) A statement that the person may request that the state

 

police correct or expunge inaccurate information entered into the

 

law enforcement information network.

 

     (2) A person who is the subject of an order entered into the

 

law enforcement information network under any provision of law

 

described in section 2(3)(a) subsection (7) may request that the

 

department of state police do either of the following:

 

     (a) Amend an inaccuracy in the information entered into the

 

law enforcement information network under any provision of law

 

described in section 2(3)(a).subsection (7).

 

     (b) Expunge the person's name and other information concerning

 

the person from the law enforcement information network regarding 1

 


or more specific entries in the law enforcement information network

 

under any provision of law described in section 2(3)(a) subsection

 

(7) because 1 or more of the following circumstances exist:

 

     (i) The person is not subject to an order of involuntary

 

commitment in an inpatient or outpatient setting due to mental

 

illness.

 

     (ii) The person is not subject to an order or disposition

 

determining that the person is legally incapacitated.

 

     (iii) The person is not subject to a personal protection order

 

issued under any of the following:

 

     (A) Section 2950 of the revised judicature act of 1961, 1961

 

PA 236, MCL 600.2950.

 

     (B) Section 2950a of the revised judicature act of 1961, 1961

 

PA 236, MCL 600.2950a.

 

     (C) Section 14 of 1846 RS 84, MCL 552.14.

 

     (iv) The person is not subject to an order for release subject

 

to protective conditions that prohibits the purchase or possession

 

of a firearm by the person issued under section 6b of chapter V of

 

the code of criminal procedure, 1927 PA 175, MCL 765.6b.

 

     (3) Before the expiration of 30 days after a request is made

 

to amend an inaccuracy in the law enforcement information network

 

under subsection (2)(a) (7) or to expunge 1 or more specific

 

entries from the law enforcement information network under

 

subsection (2)(b)(i) to (iv), the department of state police shall

 

conduct an investigation concerning the accuracy of the information

 

contained in the law enforcement information network, either grant

 

or deny the request and provide the person with written notice of

 


that grant or denial. A notice of denial shall include a statement

 

specifying the basis of the denial, and that a person may appeal

 

the denial pursuant to under the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.201 to 24.328.

 

     (4) If the department of state police refuses a request by a

 

person for amendment or expunction under subsection (2), or fails

 

to act within 30 days after receiving the request under subsection

 

(2), the person may request a hearing before a hearing officer

 

appointed by the department of state police for a determination of

 

whether information entered into the law enforcement information

 

network should be amended or expunged because it is inaccurate or

 

false. The department of state police shall conduct the hearing

 

pursuant to in compliance with the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.201 to 24.328.

 

     (5) Information contained in an order or disposition filed

 

with the department of state police under any provision of law

 

described in section 2(3)(a)(i) to (vii) subsection (7) is exempt

 

from public disclosure under the freedom of information act, 1976

 

PA 442, MCL 15.231 to 15.246.

 

     (6) The department of state police shall not send written

 

notice of an entry of an order or disposition into the law

 

enforcement information network as required for a personal

 

protection order issued under section 2950 or 2950a of the revised

 

judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a,

 

until that department has received notice that the respondent of

 

the order has been served with or has received notice of the

 

personal protection order.

 


     (7) The orders or dispositions to which this section applies

 

are as follows:

 

     (a) Section 464a of the mental health code, 1974 PA 258, MCL

 

330.1464a.

 

     (b) Section 5107 of the estates and protected individuals

 

code, 1998 PA 386, MCL 700.5107, or section 444a of former 1978 PA

 

642.

 

     (c) Section 2950 of the revised judicature act of 1961, 1961

 

PA 236, MCL 600.2950.

 

     (d) Section 2950a of the revised judicature act of 1961, 1961

 

PA 236, MCL 600.2950a.

 

     (e) Section 14 of 1846 RS 84, MCL 552.14.

 

     (f) Section 6b of chapter V of the code of criminal procedure,

 

1927 PA 175, MCL 765.6b, if the order has a condition imposed under

 

section 6b(3) of chapter V of the code of criminal procedure, 1927

 

PA 175, MCL 765.6b.

 

     (g) Section 16b of chapter IX of the code of criminal

 

procedure, 1927 PA 175, MCL 769.16b.

 

     Sec. 2c. (1) The director of the department of state police,

 

the sheriff of each county, and the commissioner or chief of police

 

of each city, village, and township police department shall destroy

 

all records held by or under the control of that police department

 

or sheriff's department that were received, compiled, or retained

 

under section 2, 2a, or 11, or under former section 9, including

 

all copies of those records. Except as provided in subsection (2),

 

the destruction of those records shall be completed within 6 months

 

after the effective date of the amendatory act that added this

 


section.

 

     (2) Subsection (1) does not apply to a record or copy of a

 

record that is being held as evidence in a criminal prosecution or

 

civil proceeding that has been initiated and is pending on the

 

effective date of the amendatory act that added this section.

 

However, if a record or copy of a record is held as evidence, the

 

record or copy of a record shall be destroyed within 30 days after

 

it is no longer being held as evidence in that civil or criminal

 

prosecution or civil proceeding.

 

     (3) Each department shall provide a report of its compliance

 

with this section to the secretary of the senate and the clerk of

 

the house of representatives within 30 days after the 6-month

 

period described in subsection (1) has expired. The report required

 

under this section shall separately identify the number of records

 

and copies of records retained as evidence under subsection (2).

 

Each department shall also provide a report to the secretary of the

 

senate and the clerk of the house of representatives by January 1

 

of each year of the number of records and copies of records

 

retained by or destroyed by that department under subsection (2)

 

during that year until all of those records and copies of records

 

are destroyed in compliance with this section.

 

     Sec. 6. A license shall not be issued to an applicant under

 

section 2 or 5b unless both of the following apply:

 

     (a) The issuing agency has determined through the federal

 

national instant criminal background check system (NICS) that the

 

applicant is not prohibited under federal law from possessing or

 

transporting a firearm.

 


     (b) If the applicant is not a United States citizen, the

 

issuing agency has verified through the United States immigration

 

and customs enforcement databases that the applicant is not an

 

illegal alien or a nonimmigrant alien.

 

     Sec. 14a. (1) A law enforcement agency that seizes or

 

otherwise comes into possession of a firearm or a part of a firearm

 

subject to disposal under section 14 may, instead of forwarding the

 

firearm or part of a firearm to the director of the department of

 

state police or his or her designated representative for disposal

 

under that section, retain that firearm or part of a firearm for

 

the following purposes:

 

     (a) For legal sale or trade to a federally licensed firearm

 

dealer. The proceeds from any sale or trade under this subdivision

 

shall be used by the law enforcement agency only for law

 

enforcement purposes. The law enforcement agency shall not sell or

 

trade a firearm or part of a firearm under this subdivision to any

 

individual who is a member of that law enforcement agency unless

 

the individual is a federally licensed firearms dealer and the sale

 

is made pursuant to a public auction.

 

     (b) For official use by members of the seizing law enforcement

 

agency who are employed as peace officers. A firearm or part of a

 

firearm shall not be sold under this subdivision.

 

     (2) A law enforcement agency that sells or trades any pistol

 

to a licensed dealer under subsection (1)(a) or retains any pistol

 

under subsection (1)(b) shall complete a record of the transaction

 

under section 2 or section 2a, as applicable.

 

     (2) (3) A law enforcement agency that sells or trades a

 


firearm or part of a firearm under this section shall retain a

 

receipt of the sale or trade for a period of not less than 7 years.

 

The law enforcement agency shall make all receipts retained under

 

this subsection available for inspection by the department of state

 

police upon demand and for auditing purposes by the state and the

 

local unit of government of which the agency is a part.

 

     (3) (4) Before disposing of a firearm under this section, the

 

law enforcement agency shall do both of the following:

 

     (a) Determine through the law enforcement information network

 

whether the firearm has been reported lost or stolen. If the

 

firearm has been reported lost or stolen and the name and address

 

of the owner can be determined, the law enforcement agency shall

 

provide 30 days' written notice of its intent to dispose of the

 

firearm under this section to the owner, and allow the owner to

 

claim the firearm within that 30-day period if he or she is

 

authorized to possess the firearm. If the police agency determines

 

that a serial number has been altered or has been removed or

 

obliterated from the firearm, the police agency shall submit the

 

firearm to the department of state police or a forensic laboratory

 

for serial number verification or restoration to determine legal

 

ownership.

 

     (b) Provide 30 days' notice to the public on a website

 

maintained by the law enforcement agency of its intent to dispose

 

of the firearm under this section. The notice shall include a

 

description of the firearm and shall state the firearm's serial

 

number, if the serial number can be determined. The law enforcement

 

agency shall allow the owner of the firearm to claim the firearm

 


within that 30-day period if he or she is authorized to possess the

 

firearm. The 30-day period required under this subdivision is in

 

addition to the 30-day period required under subdivision (a).

 

     (4) (5) The law enforcement agency is immune from civil

 

liability for disposing of a firearm in compliance with this

 

section.

 

     (5) (6) As used in this section, "law enforcement agency"

 

means any agency that employs peace officers.

 

     Enacting section 1. Sections 2, 2a, 9a, 9b, 9c, 11, 12, and

 

12b of 1927 PA 372, MCL 28.422, 28.422a, 28.429a, 28.429b, 28.429c,

 

28.431, 28.432, and 28.432b, are repealed.