Does a persoon lose their HCP for good if.....?

[Guest rj8806]

If a person is arrested on assault by domestic violence, spends the night in jail, goes in front of the judge, is forced to relinquish his/her HCP, but ultimately the charges are dropped, is there any hope of them getting their HCP back?

What if there was an order of protection taken out but ultimately dropped as well....?

[saintsfanbrian]

I am not a lawyer - but if the charges were dropped and the protection order was dropped it is likely that you should be able to get your permit back. You will need to go back to court so you will need a lawyer. There are several on our forum. Contact them.

[Guest rj8806]

I am not a lawyer - but if the charges were dropped and the protection order was dropped it is likely that you should be able to get your permit back. You will need to go back to court so you will need a lawyer. There are several on our forum. Contact them.

I was told I needed to contact the State department of Safety(?) regarding this, is that true?

I need to stress, the firearm WAS NOT involved in the altercation between myself and my 18 year old son.

[saintsfanbrian]

That's why I said you need to contact a lawyer - I do not know but if all charges were dropped there should be no reason for you not to get your permit back.

[kb4ns]

The Department of Safety is the agency that handles issuing (and reissuing) handgun permits. You could go ahead and contact them to see what they say. You may very well need the assistance of an attorney, and like saintsfanbrian said, there are some here on TGO that are very familiar with firearms laws and Dept of Safety procedures. Good luck!

[JReedEsq]

I'd recommend talking to a local attorney ASAP. If there was an "ex-parte" order of protection, (a temporary OP issued by petition and not after a trial), or an agreed order (agreed by the parties and w/o a trial) you should be ok in theory. Even so, if you don't want to be "red-flagged" by the dept. of safety, I'd suggest you get a lawyer to check and see what the Court actually has has on file and get any issues sorted out before you reapply. Ask around for a lawyer that's interested in guns and he'll probably have to spend less time (which means charge you less $$$) because he'll already be familiar with the HCP process.

Edited April 27, 2010 by JReedEsq

[Guest pws_smokeyjones]

On a side note, truly sorry to hear about the altercation between you and your son. I hope that gets worked out as well.

[Guest rj8806]

I'd recommend talking to a local attorney ASAP. If there was an "ex-parte" order of protection, (a temporary OP issued by petition and not after a trial), or an agreed order (agreed by the parties and w/o a trial) you should be ok in theory. Even so, if you don't want to be "red-flagged" by the dept. of safety, I'd suggest you get a lawyer to check and see what the Court actually has has on file and get any issues sorted out before you reapply. Ask around for a lawyer that's interested in guns and he'll probably have to spend less time (which means charge you less $$$) because he'll already be familiar with the HCP process.

There was an "ex-parte" order issued the day I was arrested. My son dropped the assault charges(I punched him as he charged me), but yesterday, went in front of the judge about the order of protection and it was signed for 1 year. He(my son) claims that it all happened so fast in the courtroom that before he knew it, the order was signed into effect for 1 year (I don't believe his story) but after my wife talked to him again last night, he claims he is going to have that dropped as well.

For what it's worth, I was never Mirandized and am contemplating bringing a lawyer into it for that alone... Your guy's thoughts..?

[nightrunner]

from personal experience, if it doesnt go past ex parte status it doesnt even show up or if it does, it isnt enough reason to not issue a permit for the first time.

but yours went past that so Im not sure on that. I would suggest hiring a lawyer though.

[saintsfanbrian]

Remember the old saying - A person who represents himself in a matter of law has a fool for a client.

[Guest rj8806]

Remember the old saying - A person who represents himself in a matter of law has a fool for a client.

I have no intention on "representing" myself. Right now, a Lawyer is not feasible(sp?) though.

His mother is working on talking some sense into him, I will have to wait and see if he goes through with dropping the restraining order, right?

[DaveTN]

For what it's worth, I was never Mirandized and am contemplating bringing a lawyer into it for that alone... Your guy's thoughts..?

Were you interrogated after you became a suspect? Was anything you said used against you?

No need to Mirandize you unless an Officer is going to question you after it becomes obvious you are a suspect.

If your charges have been dismissed why would it matter?

[BlackHawk93]

I have no intention on "representing" myself. Right now, a Lawyer is not feasible(sp?) though.

I would suggest getting one and considering this not an area to skimp on. Even though it was dismissed, the DOS sometimes looks for arrests and requires you to provide proof of what happened. Also, if you are under any kind of order, as you mentioned, for a year, it could come back to bite you down the road. I would do ALL I could to get this cleared up legally now to prevent any future problems from biting you. There have been those on here who have had to go back years to prove a "bad check" charge was taken care of. And with domestic violence being an area which will cause you to have problems with obtaining an HCP, I wouldn't want to risk it. Good luck.

[Guest Ggun]

I have no intention on "representing" myself. Right now, a Lawyer is not feasible(sp?) though.

His mother is working on talking some sense into him, I will have to wait and see if he goes through with dropping the restraining order, right?

Looks to me you are already "representing" yourself, and not doing too good so far...

[mdmoseley]

based just on the order of protection you can't possess a handgun or possibly rifle (will have to check on that one). HCP is really not even an issue.

[Guest rj8806]

based just on the order of protection you can't possess a handgun or possibly rifle (will have to check on that one). HCP is really not even an issue.

I don't recall reading anywhere in my copy of the order of protection that i could not possess my handgun...? It did state that in the assault charges on the paperwork that was given to me upon being released on O.R.. Since that has been cleared up, I assumed I was able to keep my handgun with me at my house( I know I cannot carry). Is that not the case?

[Guest rj8806]

Were you interrogated after you became a suspect? Was anything you said used against you?

No need to Mirandize you unless an Officer is going to question you after it becomes obvious you are a suspect.

If your charges have been dismissed why would it matter?

No...at one point the officer (3 of them were present) who was with me said "it's a good thing he is not pressing charges or you would be going to jail". 20 minutes later, a 2nd officer on the scene came over and told me to turn around and put my hands behind my back. I was not told what I was charged with and was not read my rights. I DID NOT have my gun on my person during any of this and it was only when I asked the officer if my dad could go get my handgun from the nightstand and take it with him to his house (as I didn't want it left there) that the officer agreed.

I thought they had to read me my rights if I was being arrested?

[James in Franklin]

The Miranda issue only applies to custodial interrogation. If they didn't use statements you made while in custody against you, it's not an issue.

[Fallguy]

I thought they had to read me my rights if I was being arrested?

No, they don't. Only if you are going to be questioned.

On your HCP 39-17-1352(a)(1) says your HCP shall be suspended or revoked if you are "prohibited from purchasing a handgun under applicable state or federal law"

39-17-1307(f)(1)( says you can not posses a firearm if you are"at the time of the possession, subject to an order of protection that fully complies with 18 U.S.C. § 922(g)(8)"

18 U.S.C. § 922(g)(8) says is what says if you have are the subject of an Order of Protection that you can not purchase or posses a firearm.

But it doesn't seem you would loose your HCP "forever" 39-17-1351©(8) only prevents the issuance of HCP if you are "currently" the subject of an Order of Protection.

As far as the domestic violence charge, only a conviction, not just an arrest would affect you on your HCP or possession. So it seems the order of protection is going to be your problem.

TCA can be looked up here and US Code, Title 18; § 922 here

**NOTE** I am not a lawyer and the above is not legal advice, it is simply my own personal opinion.

Edited April 27, 2010 by Fallguy

[DaveTN]

I thought they had to read me my rights if I was being arrested?

No. Rights are read when the Officer wants to question you as a suspect.

An attorney would want to know how the charges were “dropped”. Your son can’t drop charges on a domestic violence complaint; the state is the complainant. This wasn’t part of some court supervision or diversion was it?

Edited April 27, 2010 by DaveTN

[Guest HvyMtl]

Ok. Seriously. GET A LAWYER. Or, at the very least, GET YOUR SITUATION REVIEWED by a LAWYER. Check with the Legal Vendors on this site. I bet they will review your situation with you, quickly and easily.

In some cases, delaying action or "waiting" on another party who is ticked off at you is NOT in your best interests. Besides, going to a licensed attorney is FAR BETTER, then relying on info drawn from an internet forum...

The first meeting with an attorney typically is free. If they decide to take your case, then is when the $ starts. The $ might just be worth it in this case, as you want your HCP in the future. Getting legal coverage now may also prevent longer waits and higher costs in the future.

IMHO.

[Guest rj8806]

No, they don't. Only if you are going to be questioned.

On your HCP 39-17-1352(a)(1) says your HCP shall be suspended or revoked if you are "prohibited from purchasing a handgun under applicable state or federal law"

39-17-1307(f)(1)( says you can not posses a firearm if you are"at the time of the possession, subject to an order of protection that fully complies with 18 U.S.C. § 922(g)(8)"

18 U.S.C. § 922(g)(8) says is what says if you have are the subject of an Order of Protection that you can not purchase or posses a firearm.

But it doesn't seem you would loose your HCP "forever" 39-17-1351©(8) only prevents the issuance of HCP if you are "currently" the subject of an Order of Protection.

As far as the domestic violence charge, only a conviction, not just an arrest would affect you on your HCP or possession. So it seems the order of protection is going to be your problem.

TCA can be looked up here and US Code, Title 18; § 922 here

**NOTE** I am not a lawyer and the above is not legal advice, it is simply my own personal opinion.

Thank you for the information. That is what was looking for but didn't know where to begin looking.

[Guest rj8806]

No. Rights are read when the Officer wants to question you as a suspect.

An attorney would want to know how the charges were “droppedâ€. Your son can’t drop charges on a domestic violence complaint; the state is the complainant. This wasn’t part of some court supervision or diversion was it?

The charges were not pursued by my son. Yes, the State is the one who had the charges pending, I had an arraignment the following week in which the Judge asked whether or not I knew if the "victim" was going to press charges. I told him that I was told he was not pressing charges and the Judge set a court date for the very next day.

We showed up and talked to the D.A., my son agreed he was not pressing charges and we went before the Judge and he dismissed the case.

The following day I was served with an Order of Protection by the Sheriff and read through it. I was under the impression it was just my "legal" copy of the paperwork I was given the night I was let out of jail on my O.R..

This past Monday my son had a court date about the Order (apparently I was supposed to be there and didn't realize it) and in the end, the Judge signed off on the order for 1 year. My son claims he was confused and it happened so fast he didn't realize that the order was in effect for 1 year and claims he is going to talk to the clerk of the court this week and see about getting this dropped.....

[Guest shodges308]

hey buddy, just read ur post and i simpathize with ur situation. the only opinon i can offer is from the leo side as i have never been where u are. I have a colleague whose wife works for the tbi and i have checked on this very scenario for a friend in a similar predictament. Unless something has changed law wise in this state in the last month, an order of protection is an order of protection in the eyes of the state. Ex-parte or not , if ur name is run through ncic, or tcic (in house tn records) , it will show as an order of protection and due to the grey domestic violence laws in this state this will keep u from buying any firearm . TBI will flag u when ur background is run. Until it is over , to my knowledge u cannot not even possess a firearm and are subject to another ride to jail if found with one. This will no doubt keep the TDOS from reinstating ur ccw permit , because when u had to forfeit it in court , you ineffect surrendered your carry and possession rights. I have an officer friend whos wife picked up one of these and the law was even grey as to whether or not she could even be in the same house as her husband because he had issued firearms and was a LEO. My advise get an attorney . Bad news is if the order has already been signed by a judge and is in effect you are pretty much screwed for the length of the protection order. Sorry to have to bring the bad news but i am not aware of any legal standing for voiding a protection order ex-parte or not , unless the petitioner (ur son) constantly violates the order by having contact or continuously starts altercations . That is the only exception i have heard. I have also heard that once the time has expired , you will still run the risk of getting flagged by the TBI on future transactions if its not expunged, not sure if thats true as i have not heard it from a tbi employee. As far as attorneys , u can get on the nra website and search for pro gun attorneys in ur area that are affiliated and will help resolve this issue if even possible. Thats my advice is find a gun - friendly attorney who will fight for u out of principle. In my Leo experience , attorneys that have a vested interest in the matter will fight above and beyond any other , because of what it represents and almost always have better results with district attorneys. I will call some attorney friends and try and see if this process can be reversed and see if he can confirm some of the TBI rumors regarding this situation. Hopefully i can find u the answers or point u to someone who can answer. Best of luck brother

[Guest rj8806]

hey buddy, just read ur post and i simpathize with ur situation. the only opinon i can offer is from the leo side as i have never been where u are. I have a colleague whose wife works for the tbi and i have checked on this very scenario for a friend in a similar predictament. Unless something has changed law wise in this state in the last month, an order of protection is an order of protection in the eyes of the state. Ex-parte or not , if ur name is run through ncic, or tcic (in house tn records) , it will show as an order of protection and due to the grey domestic violence laws in this state this will keep u from buying any firearm . TBI will flag u when ur background is run. Until it is over , to my knowledge u cannot not even possess a firearm and are subject to another ride to jail if found with one. This will no doubt keep the TDOS from reinstating ur ccw permit , because when u had to forfeit it in court , you ineffect surrendered your carry and possession rights. I have an officer friend whos wife picked up one of these and the law was even grey as to whether or not she could even be in the same house as her husband because he had issued firearms and was a LEO. My advise get an attorney . Bad news is if the order has already been signed by a judge and is in effect you are pretty much screwed for the length of the protection order. Sorry to have to bring the bad news but i am not aware of any legal standing for voiding a protection order ex-parte or not , unless the petitioner (ur son) constantly violates the order by having contact or continuously starts altercations . That is the only exception i have heard. I have also heard that once the time has expired , you will still run the risk of getting flagged by the TBI on future transactions if its not expunged, not sure if thats true as i have not heard it from a tbi employee. As far as attorneys , u can get on the nra website and search for pro gun attorneys in ur area that are affiliated and will help resolve this issue if even possible. Thats my advice is find a gun - friendly attorney who will fight for u out of principle. In my Leo experience , attorneys that have a vested interest in the matter will fight above and beyond any other , because of what it represents and almost always have better results with district attorneys. I will call some attorney friends and try and see if this process can be reversed and see if he can confirm some of the TBI rumors regarding this situation. Hopefully i can find u the answers or point u to someone who can answer. Best of luck brother

While this is dis-heartening, at least I know what I am up against. I thank you for your post.

The fact that he(my son) charged at me and I defended myself was never entered into the equation. The only fact was he had a "mark" on him where I clocked him. Not saying I am right in the situation, just pointing out what happened (cliff notes version obviously).

I guess I will give my Kimber back to my Dad to hold until this is over. I surely don't want/need to end up back in the tank. Once was enough.