There are perhaps several laws pending in Tennessee at present which could be characterized as “Red Flag” laws or extreme risk protection orders. Both of those are descriptions of laws which fundamentally do one thing – infringe a constitutionally protected right
Recently, Travis McCarter, an attorney in Sevierville, Tennessee, has written a blog post about this law. With the permission of Mr. McCarter and with thanks to him, that post is set forth below. You can see his original blog post on his firm’s website
Does Tennessee “Red Flag” Bill Allow Police to Take Guns Without Due Process?
By Travis McCarter of Green, Waters Ogle and McCarter posted in Due Process on Friday, February 15, 2019.
The right to due process is so important to the enjoyment of American freedom that its genesis dates back to the Magna Carta and was explicitly guaranteed to citizens not once, but twice, in the United States Constitution. The Fifth Amendment to the United States Constitution guarantees that the federal government cannot deprive you of “life, liberty, or property without due process of law” and the Fourteenth Amendment prohibits the individual states from doing the same. Tennessee may do just that with the introduction of House Bill 1049 / Senate Bill 943, which is being called the “Families Know First Act” (let’s call it the FKFA for convenience) but is in reality a bill that gives carte blanche to law enforcement to seize a person’s firearms and ammunition should that person be deemed an “extreme risk” by law enforcement.
Similar laws, often referred to as “red flag” laws have been passed in 13 other states as of January 2019.
Second amendment arguments aside (although they should never be swept aside, but that is an argument for a different day) it may seem like a great idea to allow law enforcement to remove firearms from individuals who pose a risk to other individuals. The devil, however, is in the details.
The FKFA proposes to add sections to the Tennessee Code that provides that a person can lose their Second Amendment rights ex parte if an officer gives a Court “reasonable cause” to believe that the person is a threat to other people by virtue of having a firearm and less restrictive alternatives would not suffice to prevent the threat posed by that person. This language presents two glaring problems.
First, it is always a Constitutional problem when the legislature proposes to take away a fundamental right, such as your Second Amendment right to bear arms, through an “ex parte” process. For those unfamiliar with legal jargon, “ex parte” is a fancy way of saying that someone will deprive you of something you likely hold dear without any notice or opportunity to defend yourself or your property at the time it is taken away.
Many of the worst legal mechanisms, such as the issuance of Orders of Protection (which can prevent you from seeing your children for months at a time before you ever have a chance to contest it in court) and Grand Jury proceedings (where a panel of people decides whether you probably committed a crime after hearing only evidence that is designed to prove to them that you did indeed commit a crime) happen “ex parte” and as a result are often misused and abused to the detriment of individuals who have in fact done nothing wrong. Tennessee lawmakers now endeavor to add gun rights to the list of other fundamental rights that can be taken away without any notice at all to the affected individual until it is too late.
Second, “reasonable cause” is not a recognized legal standard under the law, so there is no real guideline for courts who hold these hearings which seek to deprive Tennesseans of the fundamental right to bear arms.
Courts are used to applying a probable cause standard or reasonable suspicion standard when appropriate, but “reasonable cause” is not an accepted legal standard and therefore is basically just a mandate to the court to do whatever it feels like doing.
The bill then provides a list of factors the court can consider when holding a full hearing on the matter which basically amounts to authorizing the court to do whatever it wants if the individual in question does anything at all that makes the court skeptical of that person’s fitness to possess a gun. Essentially, a court will take your gun rights away initially based on a legal standard that does not even exist under the law, and then you will be forced to show the judge that you have not done anything remotely reckless or questionable with a firearm in the past six months.
So, hypothetically, you have a situation where your ex-wife tells a police officer that you are dangerous because in reality she is mad that you have a new girlfriend, which has happened with Orders of Protection thousands of times and will happen with these Extreme Risk Protection Orders. The officer finds her credible, approaches a judge, and you automatically lose your gun rights for twenty-one days or so, until a full hearing can be held on the matter. In order to defend yourself at this hearing, you will likely hire an attorney whose fees will certainly never be reimbursed to you, even if you are successful. Then you will attend a hearing that consists of a he-said, she-said of testimony where some unlucky judge will have to decide who is telling the truth and will potentially take away your Constitutional right to possess a firearm for an entire year.
While the intent behind this bill is unquestionably good, it will likely become for all practical purposes just another tool used to harass and provide leverage in domestic situations just as its predecessor, the Order of Protection, has been used. A justice system that is focused on fairness needs less “ex parte” situations and more situations where individuals are able to present a defense before their liberties are taken from them.
There are a few provisions of this bill that operate as somewhat of a saving grace. The first is that judicial oversight and authorization is seemingly necessary before an Extreme Risk Protection Order can be issued. As an attorney who has argued too many times to count against Ex Parte Orders of Protection that were issued by non-judges and that fall woefully short of meeting the requirements necessary for issuance under the law, it is a welcome circumstance that the individuals who we tend to trust the most to apply the law fairly should be looking at these new Orders before they are issued. Second, the ex parte order, once it is issued, only lasts for twenty-one days at a maximum before the aggrieved individual is entitled to a full hearing on the matter. This mechanism should, in theory, prevent long-term abuse of these orders by bringing the matter to a full resolution one way or the other. The only issue with enforcing that time limitation is that the bill is not clear about what happens if a hearing is not held within the allotted time period. My fear is that courts will be liberal with the setting of dates and granting of continuances in these matters out of an abundance of caution, which will allow due process protections to be further subverted without an opportunity to be heard.
Third and most important among the positive aspects of the FKFA is the addition of statutory language that makes it a Class A Misdemeanor, punishable by up to 11 months and 29 days in jail, to submit a Petition for an Extreme Risk Protection Order knowing that the information therein is false or that it is intended to harass. Ideally, this would discourage citizens from filing false or abusive petitions, and if this provision is strenuously enforced it would certainly serve to bolster our Constitutional protections. However, after almost a decade of practicing law, witnessing hundreds of situations where ex parte petitions are clearly false, made for purposes of leverage, or taken out simply to harass another party, and seeing less than a handful of individuals punished in any way for taking out said petitions, I remain skeptical that this provision will ever be sincerely enforced. This is especially true since the petitions themselves will be requested by law enforcement officials, who will simply have to say they found the allegations credible enough to take in front of the judge based on the evidence they had at the time, and will therefore be insulated from any consequence should the allegation turn out to be false.
In a legal environment where citizens are increasingly concerned that the deck is stacked against them and that they are not being treated with fairness, the last thing that the legal system needs is more avenues to deprive citizens of their Constitutional rights without notice or an opportunity to present a defense.
Due process is a sacred right that helps ensure that every citizen, regardless of who or what they are, has equal access to justice and an opportunity to be heard before they are deprived of their life, liberty, or property.
While it is certainly an admirable goal to keep guns out of the hands of individuals who pose risks to others, I remain skeptical that this bill, if it passes, will accomplish that goal on any measurable scale and that it will be anything more than another tool used for harassment and leverage in domestic situations.
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