As Congress considers gun safety legislation, Dana Loesch goes on Fox to lie about Extreme Risk Protection Orders

Former National Rifle Association spokesperson and pro-gun advocate Dana Loesch went on Fox News to fearmonger that Extreme Risk Protection Order (ERPO) laws are an “inversion of due process rights” hours before a U.S. House committee advanced a bill to provide funding for states who enact such laws. In fact ERPO laws, which share a similar design with laws that remove guns from individuals under domestic violence restraining orders, include due process protections and have been upheld by courts as constitutional. ERPO laws are commonly also referred to as “red flag” laws, though the term has been criticized by the gun safety group that designed the policy as stigmatizing to people with mental health disabilities. 

On September 10, the House Judiciary Committee voted to send three gun safety bills to the House floor for a full vote, including the Extreme Risk Protection Order Act, which would provide municipalities grants to create a “avenue to prevent a person in crisis from harming themselves or others by temporarily removing guns and prohibiting the purchase of firearms.” In the Senate, Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) have been advocating for a separate ERPO law -- where federal courts would administer the gun removal process -- since 2018, and saw increased support for their measure in early August after multiple mass shootings in Texas and Ohio. 

The other bills would regulate the sale of high capacity magazines and prevent those convicted of a misdemeanor hate crime from buying a gun. 

While the committee was marking up the bills, Loesch went on Fox News’ Tucker Carlson Tonight to call ERPO laws an “inversion of our due process” and “an absolute removal of a cornerstone of our republic.” She lambasted Republican lawmakers who support this gun safety measure and falsely claimed that “any Tom, Dick, and Harry can report you and say that they think you are dangerous”:

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Citation From the September 10 edition of Fox News' Tucker Carlson Tonight

DANA LOESCH: First off, the red flag proposals -- and I have read the language of the laws in the 17 states that have passed these, including the District of Columbia as well, they're -- it's all inversion of our due process. Where you are presumed guilty and then later on, you know, maybe I think in Indiana on average it's about nine months, you have your day in court and you can try to get your property back and clear your name if you have been falsely accused. It is an absolute removal of a cornerstone of our republic, and if Republicans right now under the Trump administration, if they support this, Tucker, if they support this and if they go in with universal background checks and everything else, they will have done more than Barack Obama when he was president to undermine our Second Amendment rights. Is that what they want their legacy to be? 

TUCKER CARLSON (HOST): You never go broke underestimating the dumbness of some elected Republicans, particularly in the Senate. But this seems like going pretty far. Do you think it's possible that you would get on the record Republicans supporting this? 

LOESCH: I think so. I mean, there are a number already that have indicated that they will. I mean, Lindsey Graham says that he supports red flag laws. We also have elected officials like Dan Crenshaw who says he’s open to the idea of discussing them. And so there’s a lot of concern here. What people need to realize is that the way that red flag laws work and the way they have already been outlined in 17 states is that -- the states differ as to who and how many and how close they are to you, who can petition, who can report you. But in some states, pretty much any Tom, Dick, and Harry can report you and say that they think you are dangerous and that have you have firearms and then law enforcement have no, they do not -- they are not required to give advance notice. You are talking about serving, you know, no-knock warrants and all of this other stuff. This kind of goes along with that. They can show up, no advance warning. In fact, in Maryland, there was a man killed, Tucker. Gary Willis, a 61-year-old man, who was killed when law enforcement showed up at his home before sunrise, knocking on his door demanding to take his property. He had no idea what was going on.

And see, these laws put law enforcement in a very uncomfortable spot which is why a lot of sheriffs in a lot of different states are saying that they will not uphold these red flag laws also. But we have to think of these consequences. First off, it's dangerous. Secondly, due process is inverted. In many instances, people who are accused, they are -- I mean, like I said, Indiana, the law stipulated a 14-day waiting period but that's on average nine months. You assume the court costs for clearing your name. There is a Florida man right now named Johnathan Carpenter whose name is similar to that of a criminal and even though they know it's not the same person, he still, Tucker, has to go through the court system, pay a lot of money, [and] clear his name to get his property back. We are not thinking of the consequences.

Loesch followed up her Fox appearance with a series of tweets in which she claimed, among other things, that ERPOs are “an inversion of ‘innocent until proven guilty,’” that “most laws provide no penalty” if abused, and that “many different people … can report you.” 

In reality, there are clear-cut restrictions on who can report someone as a potential threat to themselves or others. A typical ERPO law allows family members, household members, and law enforcement to petition a court for an order, while a handful of states allow certain other people to file a petition. For example, D.C. and Maryland also allow mental health professionals to do so as well. New York also allows school administrators to petition, and Hawaii “allows medical professionals, coworkers, and educators” to petition. Florida, Rhode Island, and Vermont allow only law enforcement officials or other state officials to submit a petition for an ERPO. If granted, these orders temporarily remove someone’s firearms and prevent them from buying new ones based on threats or acts of violence -- typically those that have occurred within the last six months. 

Loesch’s statement that this law is an “inversion of our due process” is unfounded. Like all civil proceedings, petitions for ERPOs must show a standard of proof ranging from “clear and convincing” to probable cause. Only emergency orders, or ex parte orders, are issued “without notice to the respondent,” and a hearing is required to be held within a specific period of time, depending on the state, as a way to protect due process rights.

Contrary to her claim that there is often “no penalty” for abusing ERPOs, most states make it illegal to knowingly file a false petition, punishable by fines or jail time. 

Loesch’s fearmongering about the “inversion” of due process and “consequences” to passing extreme risk protection orders appears to be falling on deaf ears. A majority of people, including Republicans and gun owners, support passing laws that temporarily remove firearms from people deemed a threat to themselves or others.