From: CyberRider@aol.com Date: Sat, 29 Apr 1995 16:23:32 -0400 To: michigun@us.itd.umich.edu Cc: firearms-alert-owner@shell.portal.com Subject: MI: CCW bill analysis (4 pages) Michigan Citizen Self Defense Bills HB 4718, 4719 & 4720 Analysis mailed from State Rep. Alan Cropsey's office. Current info available by calling (517) 373-1778 Now is the time to begin lobbying individual State Legislator and State senators with letters, phone calls and requests to meet with them in support of this bill. Each contact should be polite, concise and to the point. Actual printed bills will not be available until after May 1st. Eliminates County Gun Boards- Shifts functions to Secretary of State. Creates a new system for licensing individuals to carry concealed weapons. The licensing function would be transferred from the 83 county "gun boards" to the Secretary of State. Generally, the SOS would be required to issue a CCW to an applicant who passes a criminal background check, mental illness background check, training requirements and who is not subject to a judicial injunction against owning a handgun. Retains Discretion to Deny Permit. This bill is different from a similar bill last session which took all discretion from police and the licensing authority. Under HB 4720, police would receive notice of any application and would be able to object to the licensure by filing with the SOS an affidavit of "specific and articulable facts" that a person would be a threat to himself, herself or others. SOS could deny an application based on the police affidavit, or based on other specific and articulable facts that the person would be a safety threat. Appeals. The appeals function would be moved from the county gun boards to a new Concealed Weapons Licensing Board within the Secretary of State, which would conduct hearings only in disputed cases. Many licenses would be granted as an administrative function based on a ministerial determination that all of the objective requirements are met. In cases where cause is shown for denial of a license, the applicant could appeal to the Board for an evidentiary hearing if necessary. Some issues could be resolved without a hearing. Hearings would be limited to whether the applicant is qualified under the act, which can include any of the factual matters stet forth in a police affidavit. The bill does not specify who would represent the local police in an appeal by police or sheriffs, but generally the local prosecutor would handle such a matter. If the appeal was by an individual denied a license, the Attorney General would represent the SOS. Forfeitures. Handguns and weapons used or possessed inviolation of law would be forfeited only under the provisions of the revised act, which requires police to commence and conclude a civil action for forfeiture. Summary forfeiture provisions would be eliminated, but police would still be able to summarily seize and hold a gun used in violation of the law, pending the outcome of the criminal and civil actions. HB's 4718 and 4719 would amend the penal code, and the governmental immunity laws respectively, to require application of the RJA forfeiture provisions and to impose liability on a police agency that negligently loses, damages or destroys a handgun seized but not forfeited. These bills are all mutually tie-barred. HB 4720: Sec. 1A. "Citizens Self Defense Act" (section by section analysis) Sec 1B. Statement of Intent. To secure constitutional firearms rights. Sec 2. -- deals with licenses to purchase handguns, is amended. Applicants after April 1, 1996 would be prohibited from purchasing a handgun if they are subject to certain orders or dispositions entered into the law enforcement information network. Orders include: legal incapacity, guilty but mentally ill, stalking orders, involuntary commitment to hospital, domestic violence orders, conditions of bail, in cases when the order prohibits possession of a gun. this information will be entered into the LEIN pursuant to SB's 972 through 977 of 1994 which were signed into law and will take effect on 1 April 1996. Amended for consistency with new domestic violence restraining order provisions. Deleted is section 2 (a) (v), which is the section denying issuance of a purchase permit to a person who has been ordered, as a part of a divorce proceeding, not to own or possess a firearm. However, the divorce law, MCL 552.14 still allows the court to impose such a restriction pursuant to MCL 600.2950 or 2950a, and the State Police still must enter that information into the LEIN. Retains current age limit of 18 for obtaining a purchase permit. Sec 2 (7) (C) would exempt a person with a CCW from the purchase permit requirement. This does not excuse compliance with section 9 which requires a person who obtains a handgun to submit it to police for a safety inspection. Sec 5. [New Section]. The existing section 6 is repealed, eliminating the 83 county Concealed Weapons Licensing Boards. New section 5 allows a person to apply to the Secretary of State for a license to carry a concealed weapon in this state. Upon request, SOS would be required to issue a "CCW kit" containing an application, fingerprint cards, information on procedures to obtain a CCW, appeal rights and an appeal form; information on providers of handgun training. Sec 5A. Application to the SOS would be made under oath, and would include: A. Applicants name and address B & C. A Statement that the applicant is familiar with the requirements of the act and meets the criteria under the act. 5A (2). A warning that the application is made under oath under penalty of law. Sec 5A (3) A warning that a false statement on the application is a 90 day $100.00 misdemeanor. Under current law, forging any matter on an application to purchase a pistol is a 4 year, $2,000.00 felony. There is no criminal penalty state in section 6 for forging any matter on an application for a CCW. Sec 5A (4) The application fee would be $35.00 Sec 5A (5) [SHALL ISSUE]. The SOS would be required to issue a CCW to an applicant if all of the following exist: A. The applicant is 18 but less than 21 and required to carry in the course of employment (in which case the permit may be restricted) or is at least 21. Current age limit is 18. B. Must be a Michigan resident for at least 6 months. C. for an applicant after April 1, 1996, the applicant cannot be subject to the following orders or dispositions that have been entered into the LEIN: involuntary commitment to hospital, mental incapacity, insanity, domestic violence and stalking injunctions, conditions of bail that prohibit owning or possessing a handgun no guilty by reason of insanity. D. Not convicted or confined for a felony in the last 8 years and not subject to a pending felony charge. E. Not disqualified under MCL 750.227f which makes it a felony to commit a violent crime while wearing body armor. (this section may be a reference error-- it is probably that this reference should say MCL 750.224f, which deals with restoration of firearms rights of persons convicted of felonies). F-H. Not subject to an order of legal insanity; involuntary commitment to hospital due to mental illness or, legal incapacity; would be disqualified unless ordered restored. SOS must do a LEIN check, but the disqualification is not dependent on that information being entered into the LEIN. I. Able to show knowledge and training. Either Hunter safety or NRA training or other suitable training or licensure in another state. J. Must pass state and FBI fingerprint checks. Police are obligated to take fingerprints for a $15.00 fee. All fingerprint checks must be completed within 45 days. Sec 5A (11) SOS would notify police department which has jurisdiction over the applicant. Police would have opportunity to object to issuance by filing a sworn affidavit of specific facts which indicate that the applicant would pose a threat to the safety of himself or others. (12) If CCW is issued over the objection of the police, the police could appeal to the newly created CCW Appeal Board within SOS. (13) The SOS shall issued the license unless the applicant fails the objective criteria set forth above, or if specific and articulable facts exist that the persons would be threat to himself or others. (14) CCW's would be "General" unless expressly restricted by law. A person age 18 but less than 21 could be restricted to carrying only as needed in the course of employment. (15) License would be valid for 4 years. (16) SOS must inform applicant of denial and appeal rights and must provide the applicant with the reasons, documents and information (including names of witnesses) upon which the SOS relied in denying the license. Sec 5B. Contains specific form of the license card. 5C Appeal Procedures 5D Newly created three member CCW Appeal Board would be within SOS. One member would be appointed by the Governor, one member appointed by the Governor from a list provided by the Senate Majority Leader, and another member appointed by the governor from a list submitted by the speaker of the House. These persons could include any member of the public or local law enforcement, prosecutors or state police. Their is no requirement that the Board include any non-law enforcement members. The Board would be subject to the open meetings act and freedom of information act. The board would be empowered to review all licensing decision on appeal by either the applicant or police, or sheriff. The board would conduct hearings subject to the Michigan Rules of Evidence and could promulgate administrative rules to implement the section. Sec 5E-- Requires SOS to create a computerized data base containing limited, confidential CCW information. Sec 5F-- Requires licensee to carry the license at all relevant times and to show the license card to a police officer upon request, subject to a civil find of $100.00, and subject to summary SEIZURE (not forfeiture) of the weapon, which would be returned if a CCW can be produced within 7 days of seizure. Sec 5G-- Forfeiture of a weapon used or possess in violation of this act could be forfeited only if the prosecutor obtained a criminal conviction and instituted a civil forfeiture action under section 4701, et. seq. of the Revised Judicature Act (MCL 600.4701). The weapon, if forfeited, would be disposed of pursuant to the statute. Police would be civilly liable for negligent loss or destruction of the weapon that was seized but not forfeited. Police now exercise summary forfeiture of handguns without due process. this power would be eliminated, and police would be required to institute a civil lawsuit to forfeit a handgun similar to what is required for other property in non-drug cases. A handgun used in a violent felony could only be forfeited pursuant to a separate civil action. There appears to be an unresolved legal question as to whether police could still sue the drug forfeiture provisions of the public health code to forfeit weapons used in relation to drug crimes. the drug forfeiture provisions give substantially more power to the police than the RJA provisions. Police seldom use the RJA provisions due to extensive due process provisions, but make substantial use of the drug-forfeiture provisions. Sec 5H--- Grandfather clause-- validate currently issued CCW's Sec 8. Allows SOS to revoke license summarily upon receipt of certificate of any magistrate showing that the person is no longer qualified pursuant to the provisions of the act, subject to review by the CCW licensing Board. Sec 9a. Retains current section pertaining to the basic pistol safety review board with style changes and references to SOS where needed. Sec 9b. Technical Changes Sec 9c. Technical Changes Sec 12. Technical changes, plus reference to individual members of military organizations. Sec 12b Technical change Sec 14 Forfeiture of weapons is pursuant to the Revised Judicature Act (see Sec 5G of this bill). Removes summary forfeiture power. Enacting Sections: Effective date-- 12/1/95. Tie barred to HB's 4718, 4719