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
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
- 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.