SB 1807 is the “Red Flag Law” currently being considered in Tennessee. This Bill is a glaring example of the severe flaws in the Red Flag Laws and the way they are written. Please know, the views expressed are simply MY opinions and fears. I am NOT an attorney. I am simply a VERY concerned citizen that is watching our Constitutional Rights being attacked by those swore to uphold and protect them.
“As introduced, allows a court to issue an emergency protection order upon a finding that a person poses an imminent risk of harm to the person or others if allowed to purchase or possess a firearm; authorizes a family member, household member, intimate partner, or law enforcement officer to petition for such an order”.
There are SO many troubling things in the Bill it’s challenging to know where to begin.
Here is the FIRST BIG concern:
SECTION 1. Tennessee Code Annotated, Title 39, Chapter 17, is amended by adding
the following as a new part:
(c) Notwithstanding any other law to the contrary, a person filing a petition for an emergency protection order shall not be required to bear the costs, including any court costs, filing fees, litigation taxes, or any other costs associated with the filing, issuance, registration, service, dismissal or nonsuit, appeal or enforcement of an ex parte emergency protection order, emergency protection order, or a petition for either such order, whether issued inside or outside the state. If the court, after the hearing on the petition, issues or extends an emergency protection order, all court costs, filing fees, litigation taxes, and attorney fees shall be assessed against the respondent.
This means that the person filing the complaint bears NO financial responsibility OR liability even in dismissal! Like the CO. case, there are NO financial consequences for any person who knowingly and willfully files a false petition. (Note no LEGAL consequences spelled out either. Not even being charged with a misdemeanor).
The second issue:
(d) As used in this part:
(1) “Emergency protection order” means an order of protection issued pursuant to this part;
(2) “Family member” means a person who is related to the respondent by blood, adoption, or marriage or was formerly related to the respondent by marriage;
(3) “Household member” means a person who lives or has lived in the same household with the respondent; and
(4) “Intimate partner” means a person who is dating or has dated the respondent or has or had a sexual relationship with the respondent.
The concerns with the above sections are as follows:
“Formerly related by marriage”. This could be ANYONE. A pissed off brother in law you wouldn’t hire, a second cousin removed who saw your picture at the gun range on FB. NO LIMITATIONS.
“Has dated the respondent or had a sexual relationship”. How long ago? a Year, 5 years ago? A pissed off high school flame of 20 years ago? There is no time limit, no statute of limitations.
(a) Upon the filing of a petition for an emergency protection order, the court may immediately, for good cause shown, issue an ex parte emergency protection order. An immediate and present risk of harm to the respondent or others if allowed to purchase or possess a firearm shall constitute good cause for purposes of this section. An ex parte emergency protection order shall prohibit the respondent from purchasing or possessing any firearm during the period that the order is in effect.
No hearing, no respondent, or an attorney representing the respondent present. In fact, the respondent hasn’t even been notified of the filing! Yet you have been found “guilty” of being a danger.
(b) Within thirty (30) days of service of an ex parte emergency protection order on the respondent, a hearing shall be held, at which time the court shall either dissolve the order that has been issued or shall if the petitioner has proved the allegation of an imminent risk of harm by a preponderance of the evidence, extend the emergency protection order for a definite period of time, not to exceed one (1) year, unless a further hearing on the continuation of such order is requested by the respondent or the petitioner; in which case, on proper showing of cause, such order may be continued for a further definite period of one (1) year, after which time a further hearing must be held for any subsequent one-year period. Any ex parte emergency protection order shall be in effect until the time of the hearing, and, if the hearing is held within thirty (30) days of service of such order, the ex parte order shall continue in effect until the entry of any subsequent emergency protection order issued pursuant to this section. If no ex parte emergency protection order has been issued as of the time of the hearing, and the petitioner has proven the allegation of an imminent risk of harm by a preponderance of the evidence, the court may, at that time, issue an emergency protection order prohibiting the respondent from purchasing or possessing any firearm for a definite period of time, not to exceed one (1) year.
In the above Section B, The order has been issued; confiscation has ALREADY occurred by the time this happens! Section B implies that the order DOES NOT HAVE TO BE PROVEN FOR THE EMERGENCY ORDER TO BE ISSUED! The order will only be EXTENDED if the order if PROVEN. If that’s not troubling folks, I don’t know what is. Additionally, section A states the respondent is responsible for ALL costs. Once an order is executed, the “presumption” of guilt has already been made. Does this mean you would then be responsible for all the costs? Or does that mean you wouldn’t be responsible until AFTER the hearing is held?
(c) The court shall cause a copy of the petition and notice of the date set for the hearing on such petition, as well as a copy of any ex parte emergency protection order, if applicable, to be served upon the respondent at least five (5) days prior to such hearing. An ex parte emergency protection order issued pursuant to this section shall be personally served upon the respondent. However, if the respondent is not a resident of Tennessee, the ex parte emergency protection order shall be served pursuant to §§ 20- 2-215 and 20-2-216. The notice shall advise the respondent that the respondent may be represented by counsel. In any case in which the petitioner is a minor unless the court finds that the action would create a threat of serious harm to the minor, a copy of the petition, notice of hearing, and any ex parte emergency protection order shall also be served on the parents of the minor, or in the event that the parents are not living together and jointly caring for the minor, upon the primary residential parent, pursuant to the requirements of this section.
It’s a bit concerning a petition against a person in another state can be filed HERE in TN. Thus leaving the respondent in ANOTHER STATE vulnerable to confiscation and having to travel back and forth to defend the accusation. Can anyone say “ugly divorce and custody fight”?
The above are just a FEW of the objections most will have in the TN Bill. I encourage you to read the Bill in its entirety. Contact your State Senator. Let them know how you feel about it an what your thoughts are!