The Tennessee General Assembly will officially reconvene this summer to consider legislation aimed at preventing future mass shootings.
On Monday, Governor Bill Lee (R.) formally announced a special legislative session starting August 21st. The goal of the session will be to “strengthen public safety and preserve constitutional rights,” according to Lee, and will likely involve debate over his take on legislation aimed at temporarily taking guns from those determined to be a threat to themselves or others.
“After speaking with members of the General Assembly, I am calling for a special session on August 21 to continue our important discussion about solutions to keep Tennessee communities safe and preserve the constitutional rights of law-abiding citizens,” Lee said. “There is broad agreement that action is needed, and in the weeks ahead, we’ll continue to listen to Tennesseans and pursue thoughtful, practical measures that strengthen the safety of Tennesseans, preserve Second Amendment rights, prioritize due process protections, support law enforcement and address mental health.”
The announcement sets the stage for what is shaping up to be one of the most interesting debates in gun politics as a Republican-controlled state legislature debates a policy that has rarely seen adoption in red states. It comes weeks after a shooter murdered three students and three staff members at a Christian school in Nashville, Tennessee. While he remained non-specific in his announcement, Lee’s “order of protection” proposal is expected to be a key feature of the special session.
Though he has avoided calling his proposal a “red flag” law, it shares many features with the policy currently on the books in 19 states and the District of Columbia. Lee has sought to craft his order of protection policy to address some of the common critiques of those laws. If the Republican Governor in one of the most gun-friendly states in the country can convince his Republican colleagues in the legislature to adopt the measure, it could set a template for other states who have been skeptical of red flag laws to follow.
Lee’s announcement was met with cautious acceptance from Tennessee’s Republican lawmakers, who currently hold supermajority control of the state assembly. Members of the Tennessee GOP previously issued a statement calling Lee’s proposal “a non-starter.”
“Our caucus remains focused on finding solutions that prevent dangerous individuals from harming the public,” the Tennessee House Republican Caucus said. “We are working on impactful legislation that protects Tennesseans & preserves the constitutional rights of law-abiding citizens.”
Democratic lawmakers, meanwhile, praised Lee’s announcement. State Representative Caleb Hemmer (D.) called the special session an opportunity to pass “common sense legislation around guns and mental health.”
“I’m ready to get back to work to keep our community and children safe,” he said. “I applaud the Governor for calling a special session on public safety.”
According to the Governor, the proposed order of protection policy would be an expansion of the state’s current system for domestic violence victims. State law already allows victims of domestic abuse and stalking to seek an order from a judge to remove firearms from their abuser. While nothing has been formally introduced, a 13-page draft of Lee’s proposal appears to expand that process to cover anyone who poses “a substantial likelihood of serious harm by having a firearm or any ammunition” under a “temporary mental health protection order.”
Only members of law enforcement would be permitted to file a petition under the draft proposal, and petitions would have to be accompanied by a sworn statement providing specific evidence of the risk posed by an individual covered under the petition. Once a petition is filed, a court must notify the respondent of the petition within five days of its filing and must hold a hearing within ten days. The respondent would be given the option of court-appointed legal counsel and would be subject to a mandatory assessment for suicidal or homicidal ideation. Respondents would also be given the opportunity to present evidence and cross-examine any witness at the court hearing.
After that hearing, the judge can order the subject of the petition to turn over their guns to the police or a third party who can legally possess guns within 48 hours.
Orders would be granted under a “clear and convincing” evidentiary standard and would be valid for up to 180 days, with the option to extend only after an additional court hearing. Anyone who files false petitions for mental health orders would face charges of aggravated perjury and could also be subject to “compensatory damages, punitive damages, attorney fees, and costs.”
Significant hurdles remain for the legislation as activists on both sides of the gun issue have leveled criticism at Lee’s plan. While the draft proposal contains many protections not included in other red flag laws on the books elsewhere, that has not been enough to assuage the concerns of some gun-rights advocates.
The Firearms Policy Coalition was already critical of Lee’s initial call for a red flag-style proposal. The group said they were similarly displeased with Lee’s formal announcement of a special session to consider the policy.
“When he says he wants to ‘preserve your constitutional rights’, he means he’s looking for a creative way to justify trampling those rights,” the group said.
Likewise, the Tennessee Firearms Association criticized Lee’s proposal for not considering the constitutionality of any temporary gun confiscation order under the standard set by the Supreme Court in New York State Rifle & Pistol Association v. Bruen.
“No legislator has announced any historical precedent existing as of 1791 would be the basis for a Red Flag law in Tennessee,” John Harris, the group’s executive director, said in a post on the bill.
Harris also criticized the fact that the proposal would only address a person’s access to firearms without actually treating the underlying mental health conditions creating the risk in the first place.
“Indeed, if Bill Lee’s proposal were to be implemented, what would likely result is a mentally ill individual that is free to intermingle in public or access potential victims who is now perhaps both more angry (due to being assessed) and more intent on carrying out any planned course of action,” he said.
Some gun-control advocates have also criticized Lee’s proposal for not going far enough. They say Tennessee’s current gun dispossession law for domestic violence orders lacks an enforcement mechanism to account for who takes custody of relinquished weapons, which Lee’s proposal does not address.
“If we’re going to allow third parties to have the firearms dispossessed to them, we need to know who that third party is,” Becky Bullard, Programs Director for Nashville’s Office of Family Safety, told ProPublica.
Lee said his office would be meeting with legislators and stakeholders throughout the summer to further refine his proposal and discuss different policy options before the special session’s August start date. He also welcomed members of the public to provide feedback on any potential legislation.