NASHVILLE, Tenn. (WKRN) — While debate rages on about gun reform, one proposal is getting no love from Tennessee Republicans: red flag laws.
Despite signing an executive order asking the Tennessee General Assembly to take meaningful steps forward on gun legislation, Gov. Bill Lee has resisted using the term altogether, instead opting for an “order of protection” law.
Some legislators, like Rep. Jason Zachary (R—Knoxville), have insisted that “red flag laws will never happen in Tennessee.” The lawmaker took to Twitter with a video explaining his and Republicans’ stance on the issue.
“Republicans in the House are not going to support a red flag law, period,” he said.
But what are red flag laws, and what do they do?
According to Zachary, red flag gun laws are “simply an accusation made by someone against another person that they don’t feel like they’re mentally fit to own a gun.”
“You immediately go before a judge. There’s no due process. The guns are taken,” the lawmaker said in the video. “That ain’t happening in Tennessee. We’re not doing that here.”
But according to those with gun control advocacy groups, like the Giffords Law Center and Everytown for Gun Safety, Zachary’s characterization is not entirely inaccurate.
According to the Giffords Law Center, named for former U.S. Representative Gabby Giffords, who survived an assassination attempt in 2011, red flag laws are also known as “extreme risk protection” laws.
“Extreme risk protection orders provide a proactive way to stop mass shootings and other tragedies by temporarily intervening to suspend a person’s access to firearms if they show clear warning signs of violence,” Giffords says. “Extreme risk protection laws typically empower families, household members, and law enforcement agencies to petition courts for a civil (non-criminal) order to temporarily suspend a person’s access to firearms before they commit violence.
Everytown for Gun Safety has a similar definition: “Extreme Risk laws, sometimes referred to as “Red Flag” laws, allow loved ones or law enforcement to intervene by petitioning a court for an order to temporarily prevent someone in crisis from accessing guns.”
According to Everytown, Florida enacted a red flag law shortly after the 2018 Marjorie Stoneman Douglas High School shooting in Parkland.
Florida statute 790.401 says only law enforcement officers or agencies are the only entities allowed to petition the court for a risk protection order. It also states law enforcement must submit an affidavit citing the causes of “reasonable fear” of a person being a danger to themselves or others with firearms and identify the number and kinds of firearms in that person’s possession to the best of their belief.
According to the Florida law, a hearing is required to take place within 14 days after issuing the order and, if the court finds “clear and convincing evidence” to support the RPO, it may grant it for up to a year.
Temporary RPOs may also be granted, per the law, while awaiting a hearing, which the court may grant upon hearing all relevant testimony and evidence to determine “reasonable cause” to issue it.
The Tennessee Firearms Association holds a similar view to Zachary: “A ‘Red Flag’ law is nothing more than a gun confiscation order.”
That’s according to John Harris, TFA Executive Director.
“A ‘Red Flag’ law is not effective because it operates under a delusion that the firearm is a necessary element to the person’s capacity for violence or willingness to hurt themselves or others,” he said in an early April article on the association’s website.
He also characterized red flags laws as “a scheme that allows almost anyone to claim” that certain people should not possess or own firearms in another article.
According to Linda McFayden-Ketchum, a volunteer with Moms Demand Action Tennessee, what many who oppose these kinds of laws may not realize is that extreme risk protection order, or ERPO, laws are only temporary measures, and petitions for ERPOs must be based in “compelling evidence.”
“Any family member who has serious concerns about another family member could go to the judge and present evidence—compelling evidence that danger is eminent—and they might get an ERPO, or if their evidence is weak, they would not, and they would go home and try to deal with their problems another way,” she told News 2. “The same goes for members of law enforcement. They typically run into folks who concern them who may have guns but they cannot separate the person from the gun, so they go to the judge, and the judge makes that decision.”
The separation from firearms, she added, was temporary, usually lasting one year.
“It’s not for life. It’s usually for one year, and if the person is able to get back on track, they get their guns back, and they can even appeal during the course of that year to say, ‘I’m ready,'” McFayden-Ketchum said. “If the judge hears the evidence and believes the person is ready to be a gun owner and holder again, then they get them back. It gives the person time to get help, if they will. That’s what it’s about.”
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Despite the assurances from advocates of red flag laws, the issue has so far been a non-starter in the general assembly. Republicans are resolute in wanting to make sure any gun legislation proposed in the general assembly maintains all Tennesseans’ individual liberties when it comes to firearms.
“We are going to do all we can to preserve due process, to preserve your Second Amendment rights, but do what needs to be done to ensure that in 2023, with the mental health crisis we have, that those who have significant mental health issues can’t possess and own a gun,” Zachary said.
A late-filed bill that would implement a red flag law in Tennessee was not approved by the Delayed Bills committee in the House as of Thursday, April 13. It was referred to the Senate Delayed Bills Committee April 6 but has not advanced since then. The bill, brought by Rep. Bob Freeman (D—Nashville) and Sen. Heidi Campbell (D—Nashville), would allow for law enforcement or a relative to bring a petition for a risk protection order, according to the bill text.