IN-DEPTH: Red Flag or ERPO? Some Tennessee Republicans Seek Rebrand, But Face Opposition From Within and Gun Rights Groups

Smith and Wesson President and CEO Mark Smith (L) and Tennessee Governor Bill Lee prepare for a ground breaking ceremony for the new Tennessee location for the firearms manufacturer in Alcoa, Tenn., on Nov. 5, 2021. (Scott Keller/The Daily Times via AP)

As Tennessee Governor Bill Lee calls on the state legislature to propose an enhanced “order of protection” law–Democrats, media, and gun rights groups have said the governor’s “order of protection” law essentially amounts to a “red flag” law, something many Republicans have said are a nonstarter in the bright red state.

Lee, a Republican who has opposed gun restrictions as recently as last year, talked about red flag laws in response to a reporter’s question while he was signing school safety legislation last June.

“As you know, there are a lot of conversations that are happening all across the country about laws that affect gun ownership and red flag laws and waiting period laws,” he told the reporter. “And there will be those conversations all across the country, we’re not looking at gun restriction laws in my administration right now. There’s one thing to remember: criminals don’t follow laws, criminals break laws, whether they’re a gun law [or] a drug law, criminals break laws.”

Lee seemingly mentioned a change in position during a press conference earlier this week announcing his calls for extreme risk protection order (ERPO) legislation, saying legislators may have to put aside their “previously held positions” on the issue.

“I’ve certainly been speaking with leadership from both parties,” he said. “If we’re gonna get something accomplished, it’s going to require coming together, [and] laying down our previously held positions, potentially.”

When asked later in the press conference if the legislation he was asking for fell under “red flag laws,'' he said “it falls under a law that I think is appropriate for our state given the circumstances we’re in.”

Republicans in Tennessee have said the difference in what Lee is asking for is that he is calling on strengthening current protection laws, which mostly apply to domestic incidents, while still ensuring due process of those who are reported to be a danger to themselves or others.

“As we look at mental health orders of protection, they must have a level of due process, protections from fraudulent claims, and a quick judicial hearing for individuals who pose imminent threats. The House is willing to work toward bipartisan solutions to protect all children at their schools, in their communities, and inside their homes,” state House Speaker Cameron Sexton, a Republican, said in a statement.

Lee in his announcement this week said the stronger order of protection laws would be led by law enforcement which has “a high standard burden of proof.”

“Due process requires clear and convincing evidence that a person that has shown that they are a real threat to themselves or to others–that person, that individual–should not have access to firearms. Our judicial system is prepared, it has years of experience in dealing with the orders of protection.”

A Rebranding of ‘Red Flag’ Laws?

“If you say red flag, it’s dead,” state Sen. Majority Leader Jack Johnson, a Republican, said in a constituent meeting which was recorded and passed to the media. “ERPO is better, and I think that term has been so bastardized–red flag laws–it’s been so tainted, so we have to rebrand that in able to get something passed.”

Days prior to the audio leaking, Johnson issued a statement saying “I am committed to protecting Tennesseans’ constitutional rights, including the right to due process. I have always been and continue to be opposed to so-called ‘red-flag laws’ because they deprive citizens of their rights without due process.”

Responding to questions from The Epoch Times to verify the authenticity of the audio, he said the audio came from an “anti-gun activist” who was “advocating for red flag laws along with other extreme gun control measures.”

Tennessee state Senator Jack Johnson at a Make America Great Again rally in Chattanooga, Tenn., on Nov. 4, 2018. (Charlotte Cuthbertson/The Epoch Times)

“He secretly recorded our 40-minute conversation where I explained to him that red flag laws are an absolute nonstarter for me and many other Tennesseans because they are in conflict with the Constitution and violate not only the 2nd Amendment but also the right to due process,” he said in an emailed statement to The Epoch Times. “The media has taken a 27-second clip out of context from an extensive conversation and is attempting to suggest that I want to deceive Tennesseans by passing a red flag law masked under a different name. That couldn’t be further from the truth.”

Johnson, the number two Republican in the state senate, went on to say he has always been and will continue to be opposed to so-called red flag laws.

“Red flag laws are particularly problematic because they have become synonymous with denying individuals’ due process by carrying out a guilty verdict without the right to a fair trial,” Johnson said in his emailed statement. “My long-held personal beliefs and my oath of office to uphold the Constitution preclude me from supporting any such unconstitutional law.”

State Rep. Jason Zachary, a Republican, said red flag laws are something that wouldn’t fly in Tennessee, and Lee’s call is for a law that protects due process.

“Let me be clear, red flag laws are not going to pass the House in the state of Tennessee, they’re simply not,” he said in a video. “So we’re going to do all we can to preserve due process.”

Gun Rights Groups and Conservatives Opposed, Say Proposals Are Essentially Red Flag Laws

The Tennessee Firearms Association, which bills itself as “Tennessee’s only no-compromise gun organization,” said what Lee proposed is essentially a red flag law and they are very opposed to the calls for those types of laws in the state.

Responding to Lee’s calls to remove access to weapons for individuals who are a threat to themselves or society and for the legislature “to bring forth … measures to do that, to strengthen our laws to separate those dangerous people from firearms,” TFA said on their website Lee’s calls were “clearly” red flag laws.

“On April 11, 2023, Governor Bill Lee called for the Tennessee Legislature to respond to the public’s emotional response to the Covenant School murders by enacting a law to make sure mentally ill people do not have access to firearms,” the group said on their website. “He did not use the term ‘Red Flag’ but that is the correct label for the kind of law that Governor Lee described as a ‘new protective order.’”

Conservative country music star John Rich also asked Johnson in a Twitter post, “why are you pushing a rebranding of red flag laws in TN?”

John Rich, part of "Big and Rich," at his Nashville, Tennessee residence on April 26, 2015. (Rick Diamond/Getty Images for St. Jude)

A Twitter account for Conservative Christians of Tennessee responded with “Hey @SenJohnson: “Red Flag.” No red flag laws no or ever, whatever you rebrand them as.”

Democrats on Board

On Twitter and in interviews, several state Democrats praised the call for legislation from Lee, noting they have proposed their own “red flag” laws in recent years.

Democrats pointed out legislation they introduced after the Covenant School shooting, before Lee called for such laws to be presented.

The Tennessee Democratic Caucus in the Tennessee Senate responded to the notion of needing to rebrand red flag laws for them to pass in Tennessee by saying they are ready to work with both parties to pass legislation.

“The Senate Democratic Caucus stands ready to work with the governor and the majority party to keep deadly weapons out of the hands of individuals who are a threat to themselves or others,” press secretary Brandon Puttbrese said in an email to The Epoch Times. “Tennesseans are demanding this legislature take action to stop future school shootings and we should act before this session ends. The U.S. Constitution provides no safe harbor for an individual who is threatening violence against other Americans. An order of protection policy could save lives and that matters a whole lot more than branding.”