As of October 1, 2023, this bill creates an action known as a petition for a mental health order of protection ("petition"). A petition for a mental health order of protection ("order of protection") may be filed by a law enforcement officer or law enforcement agency, and must be filed in the county where the petitioner's law enforcement office is located or the county where the respondent resides.
This bill clarifies that a petition for an order of protection does not require the petitioner to be represented by an attorney. If the respondent does not employ an attorney, then the court must appoint an attorney to represent the respondent not later than three days before the date of the hearing. If the court determines that the respondent is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, then the court may appoint another person to serve as the respondent's guardian ad litem. An attorney representing the respondent must not serve as guardian ad litem. Additionally, attorney fees must not be awarded in a proceeding under this bill.
PETITION REQUIREMENTS
This bill requires a petition to do the following:
(1) Allege that the respondent poses a substantial likelihood of serious harm to respondent's self or others by having a firearm or ammunition in the respondent's custody or control or by purchasing, possessing, or receiving a firearm or ammunition, and must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent;
(2) Identify the quantities, types, and locations of all firearms and ammunition the petitioner believes to be in the respondent's current ownership, possession, custody, or control;
(3) Identify whether there is a known existing order of protection governing the respondent; and
(4) Include a physical description of the respondent and the respondent's last known location.
SERVICE OF PROCESS
This bill requires the petitioner to make a good faith effort to provide notice to any known third party who the petitioner asserts in the petition may be at risk of violence. The notice must state that the petitioner intends to petition the court for an order of protection or has already done so and must include referrals to appropriate resources. The petitioner must attest in the petition to having provided such notice or must attest to the steps that will be taken to provide such notice. Additionally, the petitioner must list the address of record on the petition as being where the appropriate law enforcement agency is located. This bill prohibits a court or a public agency from charging fees for filing or for service of process to a petitioner seeking relief under this bill and must provide the necessary number of certified copies, forms, and instructional brochures free of charge.
COURT PROCEDURE
This bill places jurisdiction over proceedings under this bill in the circuit courts of this state, and clarifies that a person is not required to post a bond to obtain relief in any proceeding under this bill.
Upon receipt of a petition, this bill requires the court to order the following:
(1) A hearing to be held no later than 14 days after the date the petition is filed and must issue a notice of hearing to the respondent; and
(2) 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 is immune from any civil liability and has an affirmative defense to any criminal liability arising from the evaluation.
This bill requires the court clerk to cause a copy of the notice of hearing and petition to be forwarded on or before the next business day to the appropriate law enforcement agency for service upon the respondent.
Upon notice and a hearing on the matter, if the court finds by clear and convincing evidence that the respondent poses a substantial likelihood of serious harm to the respondent's self or others by having in the respondent's custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition, then this bill requires the court to issue an order of protection for an appropriate period of up to 180 days.
ORDER OF PROTECTION REQUIREMENTS
This bill requires an order of protection to include the following:
(1) A statement of the grounds supporting the issuance of the order of protection;
(2) The date the order of protection was issued;
(3) The date the order of protection ends;
(4) Whether an additional mental health evaluation or substance abuse assessment is required;
(5) 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;
(6) A description of the requirements for the surrender of all firearms and ammunition that the respondent owns; and
(7) 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 local law enforcement agency) all firearms and ammunition that you own or have in your custody, control, or possession and any license to carry a handgun issued to you under Tennessee Code Annotated, § 39-17-1351 or § 39-17-1366. 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.
This bill provides that, if the court issues an order of protection, then the court must inform the respondent that the respondent is entitled to request a hearing to vacate the order of protection. The court must provide the respondent with a form to request a hearing to vacate.
This bill also provides that, if the court denies the petitioner's request for an 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.
SERVICE BY SHERIFF
This bill requires the court clerk to furnish a copy of the notice of hearing, petition, and order of protection, as applicable, to the sheriff of the county where the respondent resides or can be found, who must serve the document upon the respondent as soon as possible. When requested by the sheriff, the court clerk may transmit a facsimile or electronic copy of an order of protection that has been certified by the court clerk, and this facsimile or electronic copy may be served in the same manner as a certified copy. Upon receiving a facsimile or electronic copy, the sheriff must verify receipt with the sender before attempting to serve the copy upon the respondent. The court clerk is responsible for furnishing to the sheriff information on the respondent's physical description and location. Service under these provisions takes precedence over the service of other documents, unless the other documents are of a similar emergency nature.
This bill requires all orders issued, changed, continued, extended, or vacated after the original service of documents to be certified by the court clerk 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 must note on the original order that service was effected. If delivery at the hearing is not possible, then the clerk must 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 these provisions, the clerk must prepare a written certification to be placed in the court file specifying the time, date, and method of service and must notify the sheriff.
REQUEST TO VACATE AN ORDER OF PROTECTION
This bill authorizes the respondent to submit one written request for a hearing to vacate an order of protection, starting after the date of the issuance of the order, and may request another hearing after every extension of the order, if any. Upon receipt of the request, the court must set a date for a hearing. Notice of the request and hearing must be served on the petitioner as provided above. The hearing must occur no sooner than 14 days and no later than 30 days after the date of service of the request upon the petitioner.
This bill provides that the respondent has the burden of proving by clear and convincing 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. If the court finds after the hearing that the respondent has met the burden of proof, then the court must vacate the order. If the court vacates the order, then the court clerk must notify the law enforcement agency holding any firearm or ammunition or handgun carry permit that has been surrendered pursuant to this bill of the court order to vacate the order of protection.
REQUEST TO EXTEND AN ORDER OF PROTECTION
This bill requires the court to notify the petitioner of the impending end of an order of protection. Notice must be received by the petitioner at least 30 days before the date the order ends.
This bill authorizes the petitioner, by motion, to request an extension of an order of protection at any time within 30 days before the end of the order. Upon receipt of the motion to extend, the court must order that a hearing be held no later than 14 days after receipt of the motion and must schedule such hearing. However, if the motion to extend is filed within 14 days of the date the order of protection is due to expire, then the court must also order a temporary extension of the order of protection to coincide with the date of the hearing. The respondent must be personally served in the same manner described above.
This bill provides that, in determining whether to extend an order, the court may consider all relevant evidence. If the court finds by clear and convincing evidence that the requirements for issuance of an order of protection 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. The court may extend an order of protection for a period that the court deems appropriate, up to 180 days.
SURRENDER OF FIREARMS, AMMUNITION, AND HANDGUN CARRY PERMIT
This bill provides that, upon issuance of an order of protection, the court must order the respondent to surrender to the local law enforcement agency all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit, held by the respondent. The law enforcement officer serving an order of protection must request that the respondent immediately surrender all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit, held by the respondent.
This bill requires the law enforcement officer to take possession of all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit, held by the respondent, which are surrendered. Alternatively, if personal service by a law enforcement officer is not possible or is not required because the respondent was present at the order of protection hearing, then the respondent must surrender any firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit, held by the respondent, in a safe manner to the control of the local law enforcement agency immediately after being served with the order by service or immediately after the hearing at which the respondent was present. A law enforcement officer may seek a search warrant from a court of competent jurisdiction to conduct a search for firearms or ammunition owned or held by the respondent if the officer has probable cause to believe that there are firearms or ammunition in the respondent's custody, control, or possession that have not been surrendered.
At the time of surrender, this bill provides that a law enforcement officer taking possession of any firearm or ammunition owned by the respondent or in the respondent's custody, control, or possession, or any handgun carry permit, held by the respondent must issue a receipt identifying all firearms and the quantity and type of ammunition that have been surrendered, and any permit surrendered, and must provide a copy of the receipt to the respondent. Within 72 hours after service of the order, the law enforcement officer serving the order must file the original receipt with the court and ensure that the officer's law enforcement agency retains a copy of the receipt.
Upon the sworn statement or testimony of any person alleging that the respondent has failed to comply with the surrender of firearms or ammunition as required by an order, this bill requires the court to determine whether probable cause exists to believe that the respondent has failed to surrender all firearms or ammunition owned by the respondent or in the respondent's custody, control, or possession. If the court finds that probable cause exists, then the court must issue a warrant describing the firearms or ammunition owned or possessed by the respondent and authorizing a search of the locations where the firearms or ammunition owned or possessed by the respondent are reasonably believed to be found and the seizure of any firearms or ammunition owned or possessed by the respondent discovered pursuant to the search.
This bill provides that, if a person other than the respondent claims title to any surrendered firearms or ammunition and the person is determined by the law enforcement agency to be the lawful owner of the firearm or ammunition, then the firearm or ammunition must be returned to the person, if the following conditions exist:
(1) The lawful owner agrees to store the firearm or ammunition in a manner such that the respondent does not have access to or control of the firearm or ammunition; and
(2) The firearm or ammunition is not otherwise unlawfully possessed by the owner.
Upon the issuance of an order of protection, this bill requires the court to order a new hearing date and require the respondent to appear no later than three business days after the issuance of the order. At the hearing, the court must require proof that the respondent has surrendered all 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.
This bill requires all law enforcement agencies to develop policies and procedures regarding the acceptance, storage, and return of firearms, ammunition, or licenses required to be surrendered under this section.
RETURN OF FIREARMS, AMMUNITION, AND HANDGUN CARRY PERMIT
This bill provides that, if an order of protection is vacated or ends without extension, then a law enforcement agency holding a firearm or any ammunition owned by the respondent or any handgun carry permit, held by the respondent, that has been surrendered or seized must return the surrendered firearm, ammunition, or permit, as requested by a respondent only after confirming through a background check that the respondent is currently eligible to own or possess firearms and ammunition under federal and state law and after confirming with the court that the order of protection has been vacated or has ended without extension. The background check must be conducted at no cost to the respondent.
If a mental health order of protection is vacated or ends without extension, then this bill provides that the department of safety, if the department has suspended a handgun carry permit, must reinstate the permit only after confirming that the respondent is currently eligible to have a handgun carry permit.
This bill requires a law enforcement agency to provide notice to any family or household members of the respondent before returning any surrendered firearm and ammunition owned by the respondent.
However, any firearm and ammunition surrendered by a respondent that remains unclaimed by the lawful owner for five years after an order of protection is vacated or ends without extension must be disposed of according to law, except that any proceeds from the sale of the firearm or ammunition is paid to the respondent.
TRANSFER OF FIREARMS AND AMMUNITION
This bill authorizes a respondent to elect to transfer all firearms and ammunition owned by the respondent that have been surrendered to or seized by a local law enforcement agency to another person who is willing to receive the respondent's firearms and ammunition. The law enforcement agency must allow such a transfer only if the law enforcement agency determines that the chosen recipient meets the following criteria:
(1) Currently is eligible to own or possess a firearm and ammunition under federal and state law after confirmation through a background check, which must be performed at no cost to the recipient;
(2) Attests to storing the firearms and ammunition in a manner such that the respondent does not have access to or control of the firearms and ammunition until the mental health order of protection against the respondent is vacated or ends without extension; and
(3) Attests not to transfer the firearms or ammunition back to the respondent until the mental health order of protection against the respondent is vacated or ends without extension.
REPORTING TO, AND REMOVAL FROM, DATABASES
This bill requires, within 24 hours after issuance, that the court clerk enter any order of protection issued under this bill into the uniform case reporting system. Additionally, within that same time period, the court clerk must forward a copy of an order issued under this bill to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency must 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 that has ended or has been vacated. Entry of the order into the national crime inf