NEW TN LAW in 2017: Handguns and Orders of Protection

Tennessee’s Shelby County has seen its share of domestic violence. When threats become acts, people can get hurt. Some become victims of homicide.  Domestic violence statistics paint a sad picture.

Handguns and orders of protection in Tennessee family law

Handguns and orders of protection in Tennessee family law

Since the 1990s, Tennessee lawmakers have been changing civil and criminal laws to provide greater protections for abused spouses. Yet domestic violence, sexual assault, and harassment remain a serious problem today. The most recent initiative to provide greater protection for victims is Public Chapter 468, passed by the General Assembly and signed into law by Governor Haslam on May 26, 2017.

Domestic Violence, Sexual Assault, and Stalking

This new law connects protection orders with the protected person’s ability to possess and carry a handgun. (PC 468 applies only to handguns and not to other firearms or weapons.) An order of protection is available not just to domestic violence victims, but to victims of sexual assault and stalking.

It matters not whether the protective order involved ex parte proceedings, meaning defendant had no advance notice or opportunity to be heard before the judge granted the order. Ex parte proceedings are not extraordinary in these cases. Providing advance notice of hearing to the defendant could make him or her even more abusive, aggressive, threatening, or dangerous. A protective order may be obtained against a defendant who was a spouse or former spouse, a past date, another family member, or someone who lived with or had a sexual relationship with the victim.

Victim's right as the protected person under an order of protection

Victim’s right as the protected person under an order of protection

Although beyond the scope of this article, read actual case summaries in the domestic violence category of our blog to learn what is required in obtaining a protective order in Tennessee law.

Handgun Carry for Personal Protection

To achieve its objectives, PC 468 changed the language of several existing Tennessee statutes. The key provision states that, as of the effective date of May 26, 2017, an individual who is granted an order of protection may lawfully carry any handgun for 21 calendar days after the order is granted. We are talking about a victim’s right to carry a firearm as the protected person under an order of protection.

To stay on the right side of Tennessee gun law with this, two requirements must be met. Those criteria are set forth in T.C.A. § 36-3-626, as follows:

  • The protected person must legally own or legally possess the handgun; and
  • The protected person must carry a copy of the order of protection whenever he or she is carrying the handgun.

Note that T.C.A. § 36-3-626 makes no mention of any right to concealed carry.

Complying with this new section should not be a barrier for most Tennesseans who choose to arm themselves after obtaining an order of protection.

Application for Temporary Handgun Carry Permit During 21-Day Period

When the 21-day period is time enough to overcome the threat of violence, then the individual may simply stop carrying the handgun anytime before 21 calendar days has passed. The lawful carry period expires after the 21st day unless the victim applies for a temporary handgun carry permit.

What is required to obtain a temporary handgun carry permit?

What is required to obtain a temporary handgun carry permit?

Among domestic abuse cases particularly, emotions can remain raw for a long time. Sometimes smoldering for months after the break-up, child custody case, divorce, or legal separation. The General Assembly provided for that situation as well. At any time during the 21-day period following the court’s order, the victim may apply for a temporary handgun carry permit.

By applying for a temporary permit, the protected person can continue carrying the handgun beyond 21 days while waiting for the actual permit to be issued. To legally carry a handgun during the extension, the victim must also carry a copy of:

1) The order of protection; and

2) The temporary handgun carry permit application receipt.

At some point, the order of protection will either expire or the judge may set a date for hearing whether the order should continue. False accusations of abuse do occur in family law cases, especially with contested child custody matters. Notifying the defendant of the proceedings and allowing him or her to appear before the judge to defend against domestic violence accusations is in the interests of justice, too.

Requirements for Obtaining a Temporary Handgun Carry Permit

Public Chapter 468 also amended Tennessee criminal law to make room for the new handgun carry language. T.C.A. § 39-17-1365 is a new section detailing how the protected person should apply for a temporary handgun carry permit:

  • Apply within 21 calendar days after the order of protection is granted;
  • Apply in person to the Department of Safety (DOS);
  • Complete the DOS temporary handgun carry permit application;
  • Include a certified copy of the protective order;
  • Provide proof of identity and Tennessee residency; and
  • Qualify for issuance of the gun permit under state law.

After obtaining a temporary permit, handgun carry is considered lawful until the permit expires. However, if a temporary permit is denied by DOS, then stop carrying the firearm and consult an attorney who can help.

Decriminalizing Possession and Carrying Handguns

Public Chapter 468 necessarily carved out a new defense to criminal unlawful possession or carrying a weapon. T.C.A. § 39-17-1308(a) was amended to add a defense if the handgun was possessed or carried “[b]y a person authorized to carry a handgun pursuant to § 36-3-626 or § 39-17-1365.” That is, a protected person authorized by PC 468.

Obtaining a firearm for personal safety is not trivial. Do it right. Failure to fully comply with this new handgun carry law could result in criminal charges for unlawful possession or unlawful carry of a weapon. If unsure, then talk to your attorney.

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