Serious Flaws in Tennessee’s Proposed New Red Flag Law

Tennessee’s legislative bodies are considering a new “red flag” law that would permit a temporary confiscation of guns from “at-risk” persons. The legislation would allow the courts in Tennessee to remove firearms on a temporary basis from relatives who are deemed to present a threat either to other people or themselves. If the legislation is approved and signed into law, household members, including family members and partners would have the ability to ask the court to confiscate firearms from gun owners temporarily under certain conditions.

These types of emergency protection orders, often referred to as red flag laws, are designed to curb gun violence, and protect potentially and allegedly dangerous people from themselves and from others. Anything that reduces domestic violence should be considered, but red flag laws aren’t perfect by any stretch, and may actually introduce new problems into the mix.

How the red flag law would work in Tennessee

If the proposed red flag legislation becomes law in Tennessee, a petitioner (family or household member or intimate partner, could ask for an emergency protection order for a signed, sworn affidavit. Once signed by a judge, the individual on the receiving end of the petition would be forbidden from purchasing or possessing a firearm as long as the order is in force.

The burden of proof is on the petitioner to prove that he or she or others are at imminent risk of harm. The petitioner could face legal penalties. If he or she lies are misrepresents facts on the sworn affidavit.

In addition, such a petition would be presented before civil judge, and would not be deemed a criminal issue. Once the order is approved, the respondent will be required to give up any and all firearms to a third party within 48 hours. If the respondent violates the order, he or she may be arrested and charged with a Class A Misdemeanor.

Potential injustices to someone having his or her gun confiscated under this law

The proposed legislation in the form of bills (SB1807/HB1873) set forth by Sen. Sara Kyle (D-Memphis) and Rep. Gloria Johnson (D-Knoxville) significantly stack the deck against the accused respondent.

For instance:

• The subject of the firearm confiscation order is not permitted to receive a hearing for five days minimum – and the hearing may not occur for up to 30 days.
• The petitioner is not obligated to pay any court costs associated with the emergency protection request, regardless of how justified the claim is or not.
• Beyond family and household members being allowed to request the order, any past love interest of the subject may do so.
• Any Tennessee resident may request an order against anyone, regardless of that person’s location in the world. The respondent does not have to be a Tennessee resident.
• The respondent must pay all filing fees, court costs, attorney fees, and litigation taxes when subjected to a “red flag” confiscation order.
• The respondent, who served with the confiscation order may be served with a mailing of the order to his or her last known address. Therefore, even if the respondent never receives the order, he or she is responsible for violating it, and subject to arrest as a result.

If you are facing a criminal charge in Franklin, Brentwood, Columbia, or the surrounding areas in Tennessee, our criminal defense attorneys at the Law Offices of Adrian H. Altshuler & Associates are here to fight on your behalf. We can fight relentlessly to pursue a dismissal, acquittal, or reduction of your charges. To set up a consultation about your case, call us today at 615.560.8945 or use our contact form.