At about 8:30 a.m. on a warm September morning last year, Penobscot County sheriff’s deputies arrived at Jackson Beach in Hermon, where an armed man was threatening suicide.
He fired one shot before the crisis team, after several hours, negotiated his peaceful surrender.
Instead of charging the distraught man with a crime and taking him to the Penobscot County Jail, the sheriff’s office and district attorney used Maine’s new “yellow flag” law to take him into protective custody and cut off his access to dangerous weapons for a year so he could receive mental health treatment.
Police and prosecutors have used that new law at least a dozen times since it took effect on July 1, 2020, following its 2019 passage in the Maine Legislature. It allows police and prosecutors, with a medical professional’s assessment in hand, to seek a judge’s permission to confiscate guns and other weapons from people who pose a danger to themselves and others in hopes of preventing mass shootings and suicides.
It’s a more limited version of “red flag” laws in other states that allow family members and police to petition courts to confiscate guns and other dangerous weapons from people found to be dangerous.
READ MORE ON MAINE’S ‘YELLOW FLAG’ LAW
Maine’s law has the potential to save lives, according to authorities. But using it is time-consuming and resource-intensive, as it involves police, district attorneys, defense attorneys, judges and medical professionals. It comes with no additional funding attached that would make it truly effective, they said. Plus, it hasn’t always succeeded in ensuring that people who need mental health treatment actually follow through with it, said a lawyer involved in a number of yellow flag cases.
“This is a new law, and the process has many time-consuming steps,” Penobscot County Sheriff Troy Morton said.
On the health care side, the legislation called for a medical provider to be able to assess someone’s mental state — and whether they pose a danger that warrants cutting off their access to weapons — remotely. But that process hasn’t been set up yet, potentially slowing the evaluations and forcing those in custody and police to wait for providers to become available in emergency rooms.
“The legislature devised such a process utilizing tele-technology and we want to help the state get this process up and running,” said Jeffrey Austin, vice president of government affairs and communications for the Maine Hospital Association. “This work needs to begin now.”
After the Sept. 16, 2020, situation on Jackson Beach, Morton said, a mental health care provider evaluated the man involved at the hospital and determined that he posed a danger. That allowed police to seek a judge’s approval to confiscate the man’s weapons and bar him from buying others.
Product of a compromise
The law, passed in June 2019, was the product of a compromise negotiated by Gov. Janet Mills, lawmakers and gun-rights groups that fell short of what gun control advocates hoped for under unified Democratic control of the Maine State House.
“Red flag” laws have been a popular policy response to the 2018 school shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Similar laws have been enacted in at least 20 states and Washington, D.C., with most allowing family members to petition a court to confiscate someone’s dangerous weapons and not requiring a medical professional’s opinion.
While they have gained traction as a response to mass shootings, researchers have linked such laws in Connecticut and Indiana to reductions in suicides.
“We wanted to put people in the path of care in that moment of crisis before there was an escalation of behavior,” said state Sen. Lisa Keim, R-Dixfield, who sponsored Maine’s bill with then-Sen. Mike Carpenter, D-Houlton.
As for the law’s implementation, she said, “It takes a lot of coordination by different entities, and it’s going to take time for all of them to figure the process out.”
How weapons can be confiscated
Rather than family members, Maine’s law gives police the power to petition a court to confiscate weapons from someone they’ve taken into custody. That provision, along with the process that unfolds before someone’s weapons are confiscated, helped the measure gain support from gun rights advocates, including David Trahan, executive director of the Sportsman’s Alliance of Maine.
“The protective custody law and an evaluation by a professional triggers the process, not a complaint from a family member or a neighbor,” he said.
If a medical professional determines that the person poses a danger to himself or others, police must seek a judge’s approval to confiscate the person’s dangerous weapons and prohibit that person from possessing dangerous weapons. That prohibition lasts until a hearing can be held to determine if it should be extended for up to a year, a step that involves local district attorneys.
The judge must find by clear and convincing evidence — short of “beyond a reasonable doubt,” the standard for a criminal conviction — that the person poses a danger that warrants his or her weapons’ removal. That person has a right to a court-appointed attorney during the hearing.
If a judge finds the person is not dangerous, police must return the weapons. If the judge grants the petition, the law enforcement agency that took the person into custody stores the weapons until the order expires. During that time, the weapons’ owner may petition the court to have them returned by showing that he or she is no longer dangerous.
The name of someone ordered to forfeit his or her weapons goes into a Maine State Police-maintained database, which would cause his or her name to come up as a prohibited person if he or she tried to buy a gun from a federally licensed firearms dealer.
13 people in protective custody
Police have taken 13 people into protective custody since the yellow flag law took effect, starting the process of determining whether they posed a danger and confiscating their weapons, according to the Maine attorney general’s office.
The number of times a judge has held a hearing to complete the process appears to be about half that, according to prosecutors.
The Sept. 16 situation in Hermon was one of four such cases Penobscot County District Attorney Marianne Lynch has taken to a judge. Hearings were held in all four and a judge granted all four petitions, she said.
In Androscoggin County, four people have been taken into protective custody since the law took effect about six months ago. One case is pending, one was transferred to Cumberland County where the person involved lives, and one person was found not to pose a danger. In the other case, the person agreed to voluntarily surrender his dangerous weapons, according to District Attorney Andrew Robinson.
Kennebec County District Attorney Maeghan Maloney said that her office has handled two cases. One was referred to Massachusetts, where the individual resides. The other was resolved by agreement and didn’t go before a judge.
“The law reduces the ability of those in crisis to access firearms, but it can also be triggering to those who are already in crisis,” Maloney said.
Attorney Randy Day of Hartland represented the four people against whom Lynch filed petitions in Bangor. His job was to argue that the defendants were not a danger to themselves or others and that police should return their weapons.
“So far, the state has had some pretty compelling evidence to put before judges,” he said.
The law may be taking weapons away from potentially dangerous people, Day said, but it has not been successful in addressing the defendants’ underlying mental health issues.
“I haven’t seen it as an incentive to get treatment and to stick with treatment,” he said.
Trahan, of the Sportsman’s Alliance of Maine, said he was not surprised by the number of times the law has been used so far.
“We expected it would be used sparingly,” he said.
He and Keim agreed that the remote mental health evaluations the legislation called for need to be implemented, especially so the law can be effective in Maine’s rural areas where there are fewer mental health care providers.
Debate not over
The Maine Gun Safety Coalition supported Maine’s compromise bill, but plans to push lawmakers this session to broaden Maine’s law so families can seek to remove loved ones’ weapons, Director Geoff Bickford said.
“We need to give families who don’t want to call the police the option to go to court themselves,” he said. “Also, the law as written stigmatizes people with a mental illness diagnosis. A person can be having a crisis but not be mentally ill.”
Sen. Anne Carney, a Cape Elizabeth Democrat and Senate chair of the Judiciary Committee, is sponsoring the legislation Bickford’s group is supporting.
At the federal level, policymakers have entertained more sweeping measures that could find more traction with the White House, Senate and House under Democratic control.
The same year Maine’s yellow flag law passed, a bill introduced in Congress that had bipartisan support would have encouraged states to implement “red flag” laws by providing them grants.
In one way, the federal measure was narrower than Maine’s law, because it would have applied to firearms but not other dangerous weapons. But Maine wouldn’t have qualified for the federal grants because its law doesn’t allow family members to seek an order barring someone’s access to guns. (Rhode Island’s law doesn’t, either.)
Maine Sen. Angus King, an independent, and Rep. Chellie Pingree, a Democrat, cosponsored the measures in their respective chambers. The House bill was not brought to the floor for a vote, and the Senate bill died in committee.
King said the legislation struck a balance between protecting Second Amendment rights and using due process to save lives.
“Far too often, we learn after the fact that many tragic mass shootings were committed by individuals who displayed warning signs of emotional or mental distress, and were still able to purchase a gun,” he said. “These horrific losses could have possibly been prevented — but they weren’t, and that’s simply unacceptable.”