TENNESSEE LAWS ON THE FORFEITURE OF FIREARMS
Tennessee Statutes and Regulations
Firearms and firearms ownership are constitutionally protected in Tennessee, in the constitutions of numerous states and, many would argue, under the Second Amendment to the United States Constitution. Notwithstanding this unusual degree of recognition of the firearm as having a special place in our political and governmental systems, both the Tennessee Legislature and the federal government have declared it to be public policy that any firearms which are involved in a violation of the law are to be confiscated, declared contraband and seized by the government. We don’t typically do this with cars, which are not constitutionally protected, so why are firearms treated differently?
2. Federal Law
Under federal law (see 18 U.S.C. § 924(d)), firearms that are “involved in or used in” certain violations of federal law are subject to forfeiture. Firearms used in the commission of crimes which are prosecuted under federal law are subject to forfeiture in federal court.
The federal procedures typically involve both administrative and judicial forfeiture proceedings. If an individual prevails in an attempted federal firearms forfeiture, the statutes provide that the individual is also entitled to recover litigation expenses and fees.
The federal firearms forfeiture proceedings are detailed and beyond the scope of this seminar section topic. However, if you have a case involving federal forfeiture, you should consult Chapter 4 in Stephen Halbrook’s Firearms Law Deskbook which is published by West Publishing Co.
3. State Law
For the local law practice, the more common forfeiture actions arise as a tangent to a state criminal proceeding. These forfeiture proceedings can arise in simple possession cases, which typically are only Class C misdemeanors, all the way through homicide cases. In many instances, they arise in the misdemeanor cases in the General Sessions courts either as a result of a carry violation under Title 39.
There are several aspects of Tennessee’s firearms forfeiture statute (TCA 39-17-1317) which are noteworthy
– The statute is mandatory. If an individual pleads to or is found guilty of the commission of a crime involving or while in the possession of a firearm, the firearm must be forfeited. Thus, even though many sections of Title 39 which establish criminal violations for weapon possession are only Class C misdemeanors which carry a $50 fine plus court costs, these individuals charged with these lowest degree criminal statutes may face the forfeiture of a firearm or firearms costing hundreds of dollars. Courts tend to enforce the forfeiture even if individuals are placed on pretrial diversion.
– The statute provides that the forfeited firearm shall be sold, destroyed or that it may be used by the government. Until there was an increase in media pressure, many of these confiscated firearms were routinely sold by the government to licensed firearms dealers and/or at public property auctions. Given the substantial number of forfeitures which occur, the sale of firearms through normal commercial outlets or at public auction has the ability to generate significant funds for governmental and law enforcement use. Unfortunately, too many government officials now believe that the firearms must be destroyed if they are not appropriate for agency use to “get them off of the streets.”
– The weapon must be returned to the owner if it was stolen or borrowed from the owner and the owner was not “involved” in the offense. In appropriate circumstances, this portion of the statute can be used to protect the interests of the owner of a firearm which might otherwise be forfeited to become government property and/or simply destroyed.