Following the announcement that a bipartisan group of senators had agreed on a framework for reforming some gun laws, which includes extreme risk protection orders or so-called “red flag laws,” right-wing media insisted the gun safety provisions would be the end of due process in the United States.
After repeated pleas for Congress to take action to curb the violence following the devastating mass shootings in Buffalo, New York, and Uvalde, Texas, a bipartisan group of senators agreed to a preliminary framework for a package of gun safety laws. Though the text has yet to be written, this would be the first federal gun legislation adopted in nearly 30 years if passed. On June 12, 10 Republican and 10 Democratic senators agreed to a framework that includes, among other measures, financially incentivizing individual states to pass extreme risk protection orders, commonly referred to as red flag laws.
Extreme risk protection orders allow law enforcement to temporarily confiscate firearms from a person deemed a danger to themselves or others. While it depends on the state, only certain people — typically only immediate family members and law enforcement — can petition the court for an extreme risk protection order, and the evidence presented has to reach the required legal stand of proof before a judge will grant the order. In the case of an ex parte order issued in urgent scenarios without the recipient’s knowledge, the firearms are returned after a formal hearing if the petitioners can’t make the case that the order should be extended.
Immediately after the deal over just the framework was announced, right-wing media set their hair on fire over the mere suggestion that states implement extreme risk protection orders:
- During the June 13 edition of Fox News’ Tucker Carlson Tonight, host Tucker Carlson ranted that “red flag laws will end due process.” Carlson went on to lie that the only thing required to receive an extreme risk protection order is a “complaint, possibly even an anonymous complaint, in which somebody says you seem dangerous,” which he falsely claimed can come from anyone. To support his baseless rant, Carlson mentioned a Supreme Court case in which a gun was confiscated, but the court specifically decided to not address extreme risk protection orders. Carlson ended his rant by questioning whether the government could also seize your home or empty your bank account using similar laws.
- The Washington Times pushed the false claim that extreme protection orders are redundant because there is already a process to adjudicate whether someone is mentally ineligible for gun ownership. The reality is, one can generally be deemed ineligible to own a gun on the grounds of mental health issues only if they have been involuntarily hospitalized, found ineligible to stand trial, or found unable to manage their own affairs.
- Former National Rifle Association spokesperson Dana Loesch:
- Conservative podcaster Tim Pool:
- Former Newsmax host John Cardillo:
- Former One America News Network host Liz Wheeler:
- Conservative radio host Jesse Kelly:
Despite conservative media’s best attempts to say otherwise, extreme risk protection orders do adhere to the requirements of due process. Of the 19 states and Washington, D.C. that have some form of extreme risk protection orders on the books, 13 states and D.C. allow family members, household members, and law enforcement to petition for an order. Of those, Maryland and D.C. also allow mental health providers to petition, New York also allows school administrators to do so, California also allows employers, co-workers, and some school personnel to petition, and Hawaii also allows medical professionals, co-workers, and educators to petition. Five states allow only law enforcement to do so.
When an order is sought, the evidence presented must reach a legal standard of proof. And while that standard is “often lower” for ex parte (emergency) orders, that’s “to make it easier for a petitioner to obtain the order and prevent violence in an emergency situation,” according to the Giffords Law Center. Furthermore, ex parte orders last only three weeks at most for the initial order, during which time a court date is scheduled, in which the respondent has the opportunity to contest the order.
The reality is that extreme risk protection orders are an effective way to disarm someone who poses a credible threat to themselves or others. And while increasing the number of these orders in place in the country may help to reduce mass shootings, it will have a much greater effect on suicides. About 80% of people contemplating suicide show signs beforehand, and gun suicides make up nearly two-thirds of the around 40,000 gun deaths in the United States every year.