Can a judge sign an order allowing police to seize your guns even if you do not break a single law? In recent years, there has been a nationwide push for “extreme risk protective orders” or “red flag” laws specifically designed to remove firearms from people accused of engaging in conduct or making statements that others may deem “dangerous.” You’ve probably heard about them in the news recently; but what are they? What do you need to know about them, and how could they be used to take away your Second Amendment rights? Let’s look at the history of these laws and how Tennessee uniquely falls on this hotly debated area.
The History of Red Flag Laws
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first one of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them. However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose to do.
Many of the states with red flag laws currently on the books allow for an enforceable court order that prevents the person from owning, purchasing, possessing, or transporting firearms and ammunition for a specified period of time. Several jurisdictions also allow the extension of these orders if the affected individual is still “deemed a threat.”
For example, under California’s red flag law (called a “gun violence restraining order”), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition initially for between one and five years, with the potential for the order to be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person may ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that the person still poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
A Californian subject to a red flag order may petition the court only once per year and ask for it to be lifted; which could entail another costly and time-consuming legal proceeding.
As of the publish date of this article, 19 states and the District of Columbia have enacted versions of red flag laws. How do things stand for Tennessee?
Red Flag Laws in Tennessee
There are currently no red flag laws on the books in Tennessee, and previous attempts at red flag legislation have died in the legislature.
Potential Future Legislation in Tennessee
However, red flag legislation was proposed in our state earlier this year. Two sets of legislation (Senate Bill 0939/House Bill 1292 and Senate Bill 0412/House Bill 1588) were introduced in February of 2021 which seek to amend the order of protection process in the State of Tennessee.
First, SB 0939/HB 1292 would allow several persons (including any family member, household member, intimate partner, or law enforcement officer who has a reasonable belief that the person in question would pose an imminent risk of harm to self or others if allowed to purchase a firearm) to file a sworn petition for an Emergency Protection Order (“EPO”) against the individual at hand. A judge would decide whether to immediately issue an EPO based on the petition.
SB 0939, which was filed on February 10, 2021, passed first and second consideration and was referred to the Senate Judiciary Committee on February 22, 2021. Since then, SB 0939 has not made any advancements. HB 1292 was filed on February 11, 2021. It has passed both first and second consideration, has been referred to the Civil Justice Committee, and was assigned to the Children and Family Affairs Subcommittee on February 24, 2021. On March 24, 2021, the bill was placed on the calendar for the Children and Family Affairs Subcommittee, where it ultimately failed after review on March 31, 2021.
SB 0412 and HB 1588 are structured very similarly to the previously discussed bills but contain some minor differences. These bills, as introduced, would allow a court to issue an Extreme Risk Protection Order (“ERPO”) if a judge finds by clear and convincing evidence that an individual poses a significant risk of harm to the person or others if allowed to possess or purchase a firearm. These bills also contain the signature red flag law language that authorizes a law enforcement officer, family, or household member to petition for such an order.
SB 0412 was filed on February 4, 2021. It has passed both first and second consideration and has been referred to the Senate Judiciary Committee. HB 1588 was filed and introduced the same day. It has passed both first and second consideration, has been referred to the Civil Justice Committee, and was assigned to the Children and Family Affairs Subcommittee. On March 24, 2021, the bill was placed on the calendar for the Children and Family Affairs Subcommittee to review; however, on March 31, 2021, all further action on the bill was deferred until 2022.
What does all of this mean? If these bills become law, a judge will be able to issue either an Emergency Protection Order or an Extreme Risk Protection Order, which would prohibit residents from purchasing or possessing any firearm for the duration of the order. Despite this, the petition is not considered a criminal matter but is heard by a civil judge. Once the order expires, the individual would again be able to purchase and possess firearms. Within 30 days of the initial order, a hearing would be required, at which the judge would either dismiss or extend the order for up to one year. To further extend the order, petitioners would once again be required to prove their allegations that the respondent is at risk.
Currently, both Senate bills have reached a bit of stagnation in our Republican-led legislature, as they have been referred to the Senate Judiciary Committee but have yet to make any further momentum. However, both House bills have been placed on the Children & Family Affairs Subcommittee calendar for review. The future of red flag laws in Tennessee is still unclear, as these pieces of legislation continue to get introduced; however, thus far, they have effectively died in committee. For those interested, the Tennessee General Assembly website contains all up-to-date and archived information on upcoming and past bills.
If you have questions about red flag laws or any other gun-related legislation, call U.S. LawShield and ask to speak to your Independent Program Attorney.
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