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”:
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.