Debunking Gun Lobby Myths About Extreme Risk Laws
The NRA has given David Kopel’s organization more than $1.42 million.
On Tuesday, March 26, the Senate Judiciary Committee hosted a hearing about extreme risk protection order (ERPO) laws. Among the witnesses Senate Republicans called on to testify was David Kopel, an NRA-backed research director at the libertarian Independence Institute.
While Kopel bills himself as an expert on firearms policy, he spent hours yesterday spreading myths about extreme risk laws and misrepresenting social science research about gun safety laws. Kopel’s financial ties to the gun lobby already undermine his credibility. The myths he spread yesterday go a step farther.
[Extreme Risk Laws Are Saving Lives]
Extreme risk laws are a proven tool for preventing gun violence. Depending on the state, a number of individuals—including a family member, intimate partner, law enforcement officer, or sometimes another knowledgeable person, such as a health professional—can petition a judge to temporarily remove firearms from someone exhibiting signs of crisis. If the court agrees, that person’s access to firearms is suspended, providing crucial time to get someone help and prevent a tragedy against oneself or others.
Below we lay out a few of the pernicious myths shared in yesterday’s hearing—and the facts debunking them.
Myth #1: Extreme risk laws “do not meet due process requirements.”
Kopel repeatedly claimed, in both his testimony and his responses to questions, that extreme risk laws deprive respondents of due process protections.
However, extreme risk laws are based on states’ domestic violence protection order processes, which have consistently withstood constitutional and due process challenges. Domestic violence laws set forth clear precedents for the process needed to temporarily deny an individual his or her rights. Judicial oversight plays an important role in ensuring that law enforcement officers exercise their authority appropriately. The notice and hearing process ensures that both parties have an opportunity to present their side of the case.
Kopel insisted that for an ERPO law to provide sufficient due process, petitioners must present “clear and convincing” evidence at the emergency hearing stage. However, “clear and convincing evidence” is the standard used by judges when a decision will have a long-term or permanent impact, such as a decision to remove a parent’s custodial rights over a child or to take a person off life support. It is not a standard that courts use in other temporary emergency situations, such as an active domestic violence situation. States have modeled their ERPO laws on those other procedures, which have been upheld by courts.
Extreme risk laws do, in fact, meet due process requirements.
Myth #2: “About a third of gun confiscation orders are wrongly issued.”
First, extreme risk protection orders are NOT about gun confiscation. Kopel is referring to the ex parte, or emergency, order that starts the ERPO process. When a family member or law enforcement petitions for an ERPO, an emergency hearing occurs and a judge can issue an emergency order removing someone’s guns immediately until a full hearing happens a few weeks later. Sometimes, a few weeks are all the time that a person needs for their crisis to resolve. About 30% of the time, a judge may choose not to issue a one-year ERPO at the second hearing if the person is no longer a danger to themselves or others. This does not negate the fact that the person may indeed have been dangerous or suicidal when the emergency order was issued.
Myth #3: ERPO laws are “extremist.”
Extreme risk laws have now been enacted in 14 states and the District of Columbia. Five of them have been signed into law by Republican governors. At least 20 more states have introduced extreme risk laws so far this year. Law enforcement and mental health communities have also come out in strong support of the policy. There is broad consensus among Democrats, Republicans, gun owners, gun safety advocates, mental health advocates, and law enforcement that public safety is enhanced when family members and law enforcement can request that guns are removed from people who pose an imminent danger to themselves or others. The fact that the Republican-controlled Senate hosted today’s hearing is further evidence of how reasonable, and mainstream, these laws are.
Myth #4: These laws “will not be enforced.”
Kopel asserts that sheriffs are refusing to enforce gun safety laws, a practice reminiscent of the darkest moments of the civil rights era. Sheriff Ric Bradshaw of Palm Beach County, Florida, also testified at today’s hearing, and his testimony directly contradicted that notion. In reality, extreme risk laws are being effectively implemented in states around the country. California’s ERPO law has been used to disarm criminals and suicidal family members. On April 12, 2018— the day after Vermont enacted this lifesaving policy, and two months after the Parkland massacre—Vermont law enforcement obtained an ERPO against an 18-year-old who had planned a mass shooting at a high school. The would-be murderer kept a diary called “Journal of an Active Shooter,” in which he detailed his plans to cause more casualties than any previous school shooting.
In her testimony, King County (WA) Senior Deputy Prosecuting Attorney Kimberly Wyatt recounted several instances in which Washington state’s ERPO law helped prevent gun deaths, including:
- a concerned therapist who contacted law enforcement to remove firearms from their suicidal patient
- a woman who requested an ERPO for her suicidal partner, who later shared his gratitude that someone had intervened and removed his firearms during that moment of crisis
- a doctor who alerted police about their patient’s “hit list” and intention to commit mass violence
Extreme risk laws are enforced and actively saving lives in the states that have them.
[It’s Time to Retire the Term “Red Flag Laws”]
Myth #5: Extreme risk laws are not about “extreme risks.”
Extreme risk laws focus on evidence-based risk of violence, such as violations of domestic violence protection orders, substance or alcohol abuse, threats or acts of violence against oneself or others, and other key warning signs of suicide and dangerousness. Several incidents of mass violence in the past decade have involved a shooter who exhibited this kind of behavior prior to the incident, including shootings in Tucson, Arizona (2011); Isla Vista, California (2014); and Parkland, Florida (2018). A family member or law enforcement officer who decides to go to court to obtain an ERPO makes the unusual decision to ask the court to temporarily suspend a person’s firearms rights because they have identified the kind of risk that warrants an unusual action. The kind of behavior that makes a family member or law enforcement concerned about potential loss of life is indeed extreme.
Myth #6: Giffords “blocked” a model extreme risk law.
Late last year, the Uniform Law Commission (ULC) convened a variety of stakeholders and interested parties to decide whether or not it would be a good use of ULC’s resources to draft a model ERPO law. When all parties involved could not reach consensus, the ULC ultimately decided it would not. According to ULC, “the costs were thought to outweigh the benefits. On benefits, the main worry was that even a model act would only be of possible interest to fewer than half of the states, given that 12 states already have existing legislation on the subject and at least another dozen were considered to be very unlikely to adopt or even consider such an act. There was also concern that a drafting process that would take 18-24 months may be too slow even for those states interested in such an act.” The final decision was the ULC’s, and not any individual party’s.
Bottom Line: Extreme risk laws make sense. David Kopel’s NRA talking points don’t.
David Kopel’s efforts to muddy the waters on extreme risk laws are suspect in light of his organization’s financial ties to the NRA, and his arguments fall flat when confronted with the facts. There is broad bipartisan agreement that someone who shows signs of harming themselves or others with a gun shouldn’t have access to firearms. Extreme risk protection orders are proven to save lives, and—as Judiciary Chairman Graham noted in his closing remarks—Congress should do everything they can to help states pass and implement these lifesaving laws.