The Tennessee Conservative [By Jason Vaughn] –
Governor Bill Lee is pushing “extreme risk” order of protection (ERPO) legislation aimed at substantially changing Tennessee’s criminal and mental codes and in effect, implementing a “Red Flag” Law in the Volunteer state.
According to Capitol insiders, Rules have been suspended in the Tennessee House so the legislation can bypass the subcommittee and committee process and go straight to the floor for a vote today (April 20th, 2023).
Due to the extreme lack of transparency from Tennessee elected officials regarding this legislation and the hearing thereof, details are sparse.
Although amendments to the bills are not available for public viewing on the General Assembly website, it is believed that caption bills HB0508 / SB0179 or HB1017 / SB1502 will be amended with the Bill Lee approved language today and be voted on in the House. New insider information suggests that HB0508 is more likely to be the caption bill serving as the vehicle for Lee’s amendment that “makes the bill”. The language for Lee’s amendment was acquired by TNJ on the Hill and can be found at the bottom of this article.
Capital Insiders tell us that currently the Senate is not willing to reopen to hear additional legislation. However, it is believed that since the House leadership is willing to push Lee’s amendments at the eleventh hour, “they must know something about the Senate side.”
If you wish to express your opinion about this or any gun control measures put forth by Tennessee’s elected officials, you can find the contact information for your Representatives and Senators HERE. The Tennessee Conservative will be carefully watching the House session today to keep you update of any developments.
Gary Humble of Tennessee Stands says that several things can happen at this point:
1. The rules have currently been suspended. Meaning, this bill could bypass all committees and make its way straight to the floor for an immediate vote.
2. The Senate and House could opt to reopen committees and we would now see debate in committees over the next week or two concerning this proposed legislation where we are sure several amendments would be brought to the table.
3. The General Assembly could opt to adjourn sine die and close this year’s legislative session with no action on the Governor’s proposal.
4. The Governor could subsequently and/or immediately execute his authority under Article III, Section 9 of the Tennessee Constitution and call the General Assembly into session to address this specific proposal.
“There is a lot of uncertainty about what may transpire and the timing of it all. What we do know is that language has been drafted and the Governor is now actively pushing for this legislation to pass immediately. This cannot stand in Tennessee…Allowing law enforcement in conjunction with the courts to dismiss constitutionally secured rights without conviction or any criminal basis is not due process!,” Humble said.
John Harris, Executive Director of The Tennessee Firearms Association, said that the way Governor Lee is going about pushing the 13-page bill is “the typical move of a tyrant.”
Harris released this statement (truncated for publication here – read his full statement HERE):
“The proposed amendment … does not indicate which bills are being amended, who the sponsors are, when the bill would be heard in a committee or give anyone outside of government the opportunity to review, comment on or oppose the legislation.
The first critical flaw, as expected, with Governor Lee’s proposal is that it is completely devoid of any details or information to show that it meets the constitutional threshold requirements established by the United States Supreme Court in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).The Bruen decision has created a national stonewall – which Governor Bill Lee continues to blatantly disregard – against which any proposed government regulation must be measured. It is a constitutional blockade which prohibits any proposed government infringements on the rights protected by the Second Amendment unless certain conditions are shown to exist by the government proponent.
In Bruen, the Court stated that the Second and Fourteenth Amendments together guarantee individuals not only the right to “keep” firearms in their homes, but also the right to “bear arms” in public, meaning the ability of “ordinary, law-abiding citizens” to carry constitutionally protected arms “for self-defense outside the home,” free from infringement by either federal or state governments. Id. at 2122, 2134.
The Court held that, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Bruen at 2126.
The Court stated that the only appropriate inquiry would be what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791. Bruen at 2137–38.
Thus, what the Supreme Court did in Bruen is to hold that the public debate about the scope of the prohibition on government infringement of the rights covered by the Second Amendment ended in 1791 with the adoption of the Second Amendment. The Court stated that only those laws that existed as of 1791 and which were sufficiently widespread to be part of the “nation’s historical tradition” as of that time for dealing with issues – any issues – pertaining to civilian ownership of firearms can be considered as options by government today. That is, if the government cannot point to a specific set of laws as of 1791 that dealt with an issue – such as the mentally defective possessing a firearm – then the government cannot rationalize new categories of infringements today.
The burden to show the scope of available options – as of 1791 – to deal with mentally or emotionally ill individuals who pose a risk of harm to themselves or others is on the government, Governor Bill Lee has never identified any such law of national historical tradition that would support his call for any enhanced order of protection, i.e., Red Flag law today. As of today, no Legislator has announced any historical precedent existing as of 1791 would be the basis for a Red Flag law in Tennessee today.
Yet, Governor Lee, in callous disregard of the United States Supreme Court and the Constitution, proposes a complicated legislative package that represents a not unsurprising cavernous vacuum of constitutional stewardship. The simple fact is that nothing he proposes can be aligned with any law or regulation that existed as of 1791 for dealing with people who pose a risk of harm to themselves or others.
The proposed legislation seeks to create a procedure that is referred to as a “temporary mental health order of protection” that must be filed by a law enforcement officer or agency. There is no indication that the petition can be filed by non-law enforcement. Unlike existing procedures for emergency involuntary committals, there is no requirement that the petition be supported by qualified sworn statements of physicians or qualified mental health professionals. However, at the initial hearing on the petition, the court “must order” the individual to submit to “an assessment for suicidal or homicidal ideation” by an “evaluator” who has been certified by the commissioner for mental health and substance abuse services.
The hearing is not to determine if the individual is suffering from a mental or emotional health condition that causes the individual to be an immediate risk of harm to themselves or others. The hearing is to determine whether the individual “poses a current and ongoing substantial likelihood of serious harm by having in the respondent’s custody or control or by purchasing, possessing, or receiving, a firearm or ammunition;” Thus, if the person does not have any firearms or ammunition and there is no evidence of any attempts to acquire some, then apparently the “temporary mental health order of protection” cannot be issued and the mentally unstable person that poses a risk of harm remains at liberty to go get knives, other weapons, drive cars, engage in DUI activities or run for public office. The entire focus of Governor Lee’s misguided Red Flag law is seizing firearms but leaving the individual loose to do whatever harm to themselves or others that they might otherwise do.
If the firearms seizure order is issued, the order can be in effect for up to (and likely would be in effect up to) 180 days. It can be renewed and extended FOREVER. If issued it requires the person to get rid of any firearms or ammunition. It also requires the state to notify appropriate authorities so that the individual is entered into the computer databases so that federally licensed gun dealers cannot sell firearms to the individual.
Curiously, the procedure specifically states that the “temporary mental health order of protection” is not “an adjudication of the respondent as a mental defective for purposes of 18 U.S.C. § 922.” That is likely true because federal law does equate things like alcohol dependency with the term “mental defective”. In fact, almost all of the conditions described in Governor Lee’s legislation fall outside of how federal courts have interpreted the statutory phrase “mental defective.” In that regard, Governor Lee is proposing extreme new categories of prohibited characteristics that would deny an individual the constitutionally protected right to keep and bear arms.
There is nothing in the proposed bill that keeps these orders confidential, that removes them from open records requests or that allows an individual to have the record entirely expunged (including administrative copies) order of protection is ever terminated.
It is beyond question that this proposed amendment completely fails the United States Supreme Court’s threshold requirements for constitutionality as set forth in Bruen. Governor Bill Lee should be admonished for his willful neglect of his oath of office and his intentional proposal of legislation that would constitute a clear and obvious civil rights violation.
The proposed language of the measure acquired by TNJ on the Hill can be found below:
SECTION 1. Tennessee Code Annotated, Title 39, Chapter 17, Part 13, is amended by adding the following new sections:
As used in this section and §§ 39-17-1368 – 39-17-1377:
(1) “Mental illness” means a psychiatric disorder, alcohol dependence, or drug dependence, but does not include intellectual disability or other developmental disabilities;
(2) “Serious behavioral condition” means a condition in a person who currently or at any time during the past year has had a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet psychiatric diagnostic criteria that results in functional impairment that substantially interferes with or limits the person’s role or functioning in family, school, occupational, or community activities and includes any mental disorder, regardless of whether it is of biological etiology;
(3) “Serious emotional disturbance” means the same as defined in § 33- 1-101; and
(4) “Substantial likelihood of serious harm”:
(A) Means the respondent does one (1) or more of the following, as evidenced by a substantial step toward the commission of a violent or unlawful act:
(i) Threatens or attempts suicide or to inflict serious bodily harm on the respondent’s self;
(ii) Threatens or attempts homicide or other violent behavior against another; or
(iii) Places another in reasonable fear of violent behavior and serious physical harm; and
(B) Shall not be found based solely on:
(i) The mere possession of firearms or ammunition that a person lawfully owns or possesses;
(ii) The commission of any act of self-defense or defense of another that is lawfully justified under § 39-11-611 or § 39-11- 612; or
(iii) The fact that a person, including, but not limited to, a veteran of the United States armed forces, is receiving treatment for post-traumatic stress disorder.
(1) There is created an action known as a petition for a temporary mental health order of protection, which may only be filed by a law enforcement officer or law enforcement agency.
(2) A petition for a temporary mental health order of protection:
(A) Must be filed in the county where the respondent resides;
(B) Does not require the petitioner to be represented by an attorney or post a bond and cannot result in an award of attorney fees;
(C) Must allege that the respondent poses a substantial likelihood of serious harm by having a firearm or any ammunition in the respondent’s custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, and must be accompanied by a sworn statement providing the specific statements, actions, or facts that give rise to the petition;
(D) Identify whether there is a known existing order of protection governing the respondent under title 36, chapter 3, part 6 or under any other applicable statute; and
(E) Include a physical description of the respondent and the respondent’s last known location.
(3) The petitioner must make a good faith effort to provide notice of the petition to any known third party who the petitioner asserts in the petition may be at risk of violence.
(4) A court or a public agency shall not charge fees for filing or for service of process to a petitioner seeking relief under this section.
(A) Except as provided in subdivision (a)(5)(B), the general sessions courts, circuit courts, and chancery courts of this state have jurisdiction over proceedings under this section.
(B) The juvenile courts of this state have jurisdiction over proceedings brought against minors under this section.
(1) Upon receipt of a petition, the court must order:
(A) A hearing to be held at least three (3) days but no later than five (5) days after the date the petition is filed and must issue a notice of hearing to the respondent. The hearing may be held more than five (5) days after the petition is filed, only at the request of the respondent, but in no event should the hearing be held more than ten (10) days after the petition is filed;
(i) The appointment of an attorney to represent the respondent. The respondent may elect to employ an attorney of the respondent’s choosing, who should file a notice of appearance with the clerk of the court. A court-appointed attorney shall be paid for services by the administrative office of the courts at the rate set in Tennessee Supreme Court Rule 13; and
(ii) If the court determines based on the petition that the respondent is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case or if the respondent is a minor, then the court may appoint another person to serve as the respondent’s guardian ad litem. An attorney representing the respondent shall not serve as guardian ad litem; and
(C) The respondent to undergo an assessment for suicidal or homicidal ideation by an evaluator who has been certified by the commissioner of mental health and substance abuse services, which must occur prior to the hearing. When making this determination, the evaluator and the evaluator’s employer are immune from any civil liability and have an affirmative defense to any criminal liability arising from the evaluation.
(2) The clerk of the court shall cause a copy of the petition and the order setting a hearing, appointing counsel, and requiring an assessment to be forwarded on or before the next business day to the appropriate law enforcement agency for service upon the respondent as provided in § 39-17-1369.
(3) At a hearing on a petition for a temporary mental health order of protection, the court may consider any relevant evidence, subject to the Rules of Civil Procedure.
(4) If the court determines that a petition for a temporary mental health order of protection is frivolous, then the court must order the dismissal of the petition without a hearing or mental health evaluation and the expunction of all public records of the petition.
(c) Upon notice and a hearing on the matter, if the court finds the following by clear and convincing evidence, then the court shall issue a temporary mental health order of protection for a period of up to one hundred eighty (180) days:
(1) The respondent poses a current and ongoing substantial likelihood of serious harm by having in the respondent’s custody or control or by purchasing, possessing, or receiving, a firearm or ammunition;
(2) The respondent has a mental illness, serious behavioral condition, or serious emotional disturbance; and
(3) No reasonable alternative is available by law.
(1) Except as provided in subdivision (d)(2), a person who offers evidence or recommendations relating to the petition shall present the evidence under oath at a hearing at which all parties are present. The respondent shall have the opportunity to present evidence and cross examine any witness at the hearing.
(2) The evaluator may testify through the use of electronic audio-visual equipment, which allows the evaluator, the court, and the respondent to view and hear each other simultaneously.
(e) A temporary mental health order of protection must include the following:
(1) A statement of the grounds supporting the issuance of the order;
(2) The dates the order is issued and expires;
(3) Whether an additional mental health evaluation or substance abuse assessment is required;
(4) A requirement that the respondent attend available mental health treatment, which may include counseling programs that address violence and control issues, anger management, or substance abuse problems;
(5) The requirements for the firearms and ammunition dispossession;
(6) The following statement:
To the subject of this protection order: This order will last until the date noted above. If you have not done so already, you must immediately surrender to the (insert name of law enforcement agency) any license to carry a handgun issued to you under Tennessee Code Annotated, § 39-17-1351 or § 39-17-1366, and dispossess all firearms and ammunition that you own or have in your custody, control, or possession. You may not have in your custody or control, or purchase, possess, receive, or attempt to purchase or receive, a firearm or ammunition while this order is in effect. You have the right to request a hearing to vacate this order, starting after the date of the issuance of this order, and to request another hearing after every extension of this order, if any. You may seek the advice of an attorney as to any matter connected with this order.
(f) If the court denies the petitioner’s request for a temporary mental health order of protection, then the court must issue a written order stating the particular reasons for the denial and ordering the expunction of all public records of the petition for a temporary mental health order of protection.
(g) The issuance of a temporary mental health order of protection is not an adjudication of the respondent as a mental defective for purposes of 18 U.S.C. § 922. 39-17-1369.
(a) The clerk of the court shall furnish a copy of the notice of the court’s order and the petition and, if applicable, the temporary mental health order of protection to the sheriff of the county where the respondent resides or can be found, who shall personally serve the document upon the respondent and, if the respondent is a minor, the respondent’s parent or legal guardian as soon as possible on any day of the week and at any time of the day or night. Service under this section takes precedence over the service of other documents, unless the other documents are of a similar emergency nature.
(b) All orders issued, changed, continued, extended, or vacated after the original service of documents pursuant to subsection (a) must be certified by the clerk of the court and delivered to the parties at the time of the entry of the order. The parties may acknowledge receipt of such order in writing on the face of the original order. If a party fails or refuses to acknowledge the receipt of a certified copy of an order, then the clerk shall note on the original order that service was effected. If delivery at the hearing is not possible, then the clerk shall mail certified copies of the order to the parties at the last known address of each party. Service by mail is complete upon mailing. When an order is served pursuant to this subsection (b), the clerk shall prepare a written certification to be placed in the court file specifying the time, date, and method of service and shall notify the sheriff.
(a) The respondent may submit one (1) written motion for a hearing to vacate a temporary mental health order of protection issued under § 39-17-1368, starting after the date of the issuance of the order, and may file a motion for another hearing after every extension of the order, if any.
(b) Upon receipt of the motion for a hearing to vacate a temporary mental health order of protection, the court shall set a date for a hearing. Notice of the motion and hearing must be served on the petitioner in accordance with § 39-17-1369. The hearing must occur no sooner than fourteen (14) days and no later than thirty (30) days after the date of service of the motion upon the petitioner.
(c) The respondent has the burden of proving by a preponderance of the evidence that the respondent does not pose a substantial likelihood of serious harm by having in the respondent’s custody or control, purchasing, possessing, or receiving a firearm or ammunition. The court may consider any relevant evidence.
(d) If the court finds after the hearing that the respondent has met the burden of proof, then the court must vacate the order.
(e) The clerk of the court shall notify the law enforcement agency holding any firearm or ammunition or handgun carry permit that has been surrendered pursuant to § 39-17-1372 of the court order to vacate the temporary mental health order of protection. 39-17-1371.
(a) The court shall notify the petitioner of the impending end of a temporary mental health order of protection issued under § 39-17-1368. Notice must be received by the petitioner at least forty-five (45) days before the date the order ends.
(1) The petitioner may, by motion, request an extension of a temporary mental health order of protection at any time within forty-five (45) days before the end of the order.
(2) Upon receipt of the motion to extend, the court shall order that a hearing be held no later than fourteen (14) days after receipt of the motion. The respondent must be personally served in the same manner provided by § 39-17- 1369.
(3) In determining whether to extend a temporary mental health order of protection, the court may consider any relevant evidence, subject to the Rules of Civil Procedure.
(4) If the court finds by clear and convincing evidence that the requirements for issuance of a temporary mental health order of protection as provided in § 39-17-1368 continue to be met, then the court must extend the order. However, if, after notice to the respondent, the motion for extension is uncontested and no modification of the order is sought, then the order may be extended on the basis of a motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested extension.
(5) The court may extend a temporary mental health order of protection for a period that the court deems appropriate, up to one hundred eighty (180) days.
(a) Upon issuance of a temporary mental health order of protection under § 39- 17-1368, the court shall order the respondent:
(1) To terminate physical possession of all firearms and ammunition by any lawful means, such as transferring possession to a third party who is not prohibited from possessing firearms, within forty-eight (48) hours of the issuance of the order;
(2) To complete and return an affidavit of firearm dispossession form, as provided by the court, within three (3) days of issuance; and
(3) That if the respondent possesses firearms as business inventory or that are registered under the National Firearms Act (26 U.S.C. §§ 5801 et seq.), lawful dispossession may occur in the manner provided by § 36-3-625(f).
(b) When the respondent is lawfully dispossessed of firearms and ammunition as required by this section, the respondent shall complete an affidavit of firearms dispossession form and return it to the court issuing the order of protection. If the respondent fails to complete the affidavit of firearms dispossession with three (3) days of issuance, the court shall set a hearing no later than seven (7) days after issuance of the order and require the respondent to appear. At the hearing, the court shall require proof that the respondent has dispossessed any firearms or ammunition owned by the respondent or in the respondent’s custody, control, or possession. The court may cancel the hearing upon a satisfactory showing that the respondent is in compliance with the order.
(a) Within twenty-four (24) hours after issuance, the clerk of the court shall enter any temporary mental health order of protection issued pursuant to § 39-17-1368 into the case reporting system.
(b) Within twenty-four (24) hours after issuance, the clerk of the court shall forward a copy of a temporary mental health order of protection to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency shall enter the order into the national crime information center and similar state databases. The order must remain in each system for the period stated in the order, and the law enforcement agency may only remove an order from the systems which has ended or has been vacated. Entry of the order into the national crime information center and similar state databases constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in this state.
(c) The issuing court shall, within three (3) business days after issuance of a temporary mental health order of protection, forward all available identifying information concerning the respondent, along with the date of order issuance, to the department of safety. Upon receipt of the information, the department shall determine if the respondent has a handgun carry permit issued pursuant to § 39-17-1351 or § 39-17-1366. If the respondent does have a handgun carry permit, then the department must immediately suspend the permit.
(d) If a temporary mental health order of protection is vacated before its end date, the clerk of the court shall, on the day of the order to vacate, forward a copy of the order to the department of safety and the appropriate law enforcement agency specified in the order to vacate. Within one (1) business day of receipt of the order, the specified law enforcement agency shall remove the order from any computer-based system in which the order was entered pursuant to subsection (b).
(1) A person who intentionally makes a false statement or omits relevant information, with intent to deceive, when testifying under oath in a hearing under § 39-17-1368 in regard to any material matter commits aggravated perjury under § 39-16-703.
(2) A respondent may bring an action under this subdivision (a)(2) against a person who intentionally makes a false statement or omits relevant information, with intent to deceive, when testifying under oath in a hearing under
§ 39-17-1368 in regard to any material matter. The respondent may recover compensatory damages, punitive damages, attorney fees, and costs.
(b) A person who files a petition, pursuant to § 39-17-1368, with intent to unlawfully deny or impede the respondent’s exercise or enjoyment of any right commits official oppression under § 39-16-403.
(c) A person who has in the person’s custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition, knowing that the person is prohibited from doing so by a temporary mental health order of protection issued pursuant to § 39-17-1368, commits a Class E felony.
(d) A person who gives, sells, lends, or otherwise transfers a firearm to another, when the person knows that the person receiving the firearm is subject to a temporary mental health order of protection commits a Class E felony.
Sections 39-17-1367 – 39-17-1377 do not affect the ability of a law enforcement officer to remove a firearm or ammunition or handgun carry permit from any person or to conduct any search and seizure for firearms or ammunition pursuant to other lawful authority.
Except as provided in § 39-17-1374, this part does not impose criminal or civil liability on any person or entity for acts or omissions related to obtaining a temporary mental health order of protection, including, but not limited to, providing notice to the petitioner, a family or household member of the respondent, and any known third party who may be at risk of violence or failure to provide such notice, or reporting, declining to report, investigating, declining to investigate, filing, or declining to file, a petition under § 39-17-1368.
(a) The administrative office of the courts shall develop and prepare standard petitions, temporary mental health order of protection forms, and affidavits of firearms dispossession. The standard petition and order forms must be used after October 1, 2023, for all petitions filed and orders issued pursuant to § 39-17-1368.
(b) The temporary mental health order of protection form must include, in a conspicuous location, notice of criminal penalties resulting from violation of the order and the following statement: “You have the sole responsibility to avoid or refrain from violating this order’s provisions. Only the court can change the order and only upon written request.”.
(c) The administrative office of the courts shall distribute a master copy of the standard petitions, temporary mental health order of protection forms, and affidavits of firearms dispossession to the clerks of court. Distribution of all documents must, at a minimum, be in an electronic format accessible to all courts and clerks of court.
SECTION 2. Tennessee Code Annotated, Section 39-17-1316(a)(1), is amended by deleting the first sentence and substituting:
Any person appropriately licensed by the federal government may stock and sell firearms to persons desiring firearms; however, sales to persons who have been convicted of the offense of stalking, as prohibited by § 39-17-315, who are addicted to alcohol, who are ineligible to receive firearms under 18 U.S.C. § 922, who have been judicially committed to a mental institution pursuant to title 33 or adjudicated as a mental defective, or who are subject to a temporary mental health order of protection issued under § 39-17-1368 are prohibited.
SECTION 3. Tennessee Code Annotated, Section 39-17-1352(a), is amended by adding the following new subdivision:
(11) Is subject to a current temporary mental health order of protection issued under § 39-17-1368.
SECTION 4. Tennessee Code Annotated, Title 33, Chapter 6, Part 7 , is amended by adding the following new section:
Before discharging a person, who was admitted under part 2, part 4, or part 5, the chief officer of the hospital to which the person was admitted shall determine if the person poses a substantial likelihood of serious harm, as defined in § 39-17-1367. If the chief officer determines that the person poses a substantial likelihood of serious harm, the chief officer shall report the determination to the law enforcement agency with jurisdiction in the person’s county of residence.
SECTION 5. For the purpose of implementation, this act takes effect upon becoming a law, the public welfare requiring it. For all other purposes, this act takes effect October 1, 2023, the public welfare requiring it.
About the Author: Jason Vaughn, Media Coordinator for The Tennessee Conservative ~ Jason previously worked for a legacy publishing company based in Crossville, TN in a variety of roles through his career. Most recently, he served as Deputy Director for their flagship publication. Prior, he was a freelance journalist writing articles that appeared in the Herald Citizen, the Crossville Chronicle and The Oracle among others. He graduated from Tennessee Technological University with a Bachelor’s in English-Journalism, with minors in Broadcast Journalism and History. Contact Jason at news@TennesseeConservativeNews.com