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Maine's 'yellow flag' law could be a model for gun control, but legal experts say it has limitations

Guns that were turned in sit in a pile after Sam Smith, a blacksmith, cut them up during a gun giveback event sponsored by the Maine Gun Safety Coalition on Saturday, June 11, 2022, at the Falmouth Police Department in Falmouth, Maine.
David Sharp
Guns that were turned in sit in a pile after Sam Smith, a blacksmith, cut them up during a gun giveback event sponsored by the Maine Gun Safety Coalition on Saturday, June 11, 2022, at the Falmouth Police Department in Falmouth, Maine.

A Maine law has been described as a potential national model for keeping guns out of the hands of dangerous or suicidal individuals. But the state's so-called yellow flag law has only been used two dozen times in two years, and prosecutors say the law has both advantages and limitations.

In September of 2020, sheriffs deputies responded to a potential "suicide-by-cop" situation near Bangor involving an armed man in mental health crisis. Rather than charge him criminally for the standoff, police and Penobscot County District Attorney Marianne Lynch used a brand new law to temporarily prohibit the man from possessing guns.

"So they were able to utilize it effectively in that case so rather than charge him — and they were perfectly entitled to charge him because you can't point a gun even at law enforcement and threaten them — we treated it civilly rather than punishing him," Lynch said.

Maine's yellow flag law has been invoked 24 times since 2020 to temporarily remove guns from people deemed to pose a threat to themselves or others. Unlike the red flag laws that are in effect in roughly 20 states, Maine's yellow flag law does not allow family members to directly petition a judge to order someone to temporarily give up their guns and prohibit them from acquiring new firearms. Only police can issue a request.

And Maine's law goes a step further by requiring a medical assessment of the person before the petition goes to a judge.

“We can do this and still have due process," said David Trahan, who is executive director of the Sportman's Alliance of Maine, a major player in gun rights and gun safety issues in Augusta.

"They have the right to counsel," Trahan said. "They use the term clear and convincing evidence. And it's not based on a complaint, it is based on the individual's actual actions in the eyes of police officers and medical professionals."

It was the Sportsman's Alliance of Maine's endorsement that helped pass the yellow flag law in 2019 just two days after rural Democrats and Republicans rejected a red flag proposal citing "due process" concerns.

Trahan also had the ear of Republican Sen. Susan Collins this month as she negotiated the first major gun safety bill to pass Congress in decades. The law doesn't impose a federal red or yellow flag standard but, instead, offer states federal grants to help craft their own versions.

"It's called sovereignty, state sovereignty," he said. "I think many people would like to see the feds just take it over. But every state is going to be different."

Trahan predicts other conservative or gun-friendly states will follow Maine's yellow-flag lead. And he says the long-delayed addition of a telemedicine option for medical evaluations will likely result in more Maine police using the state's yellow flag law.

But Margaret Groban, who recently retired after more than 30 years as a federal prosecutor, said Maine's law lacks key protections.

"I appreciate that compromise is important but I think a yellow flag law misses a number of opportunities that can make people safer," said Groban, who teaches firearms regulation at the University of Maine School of Law.

Groban said red flag laws allow family members to directly petition a court. She added that's important because some families fear that involving police could result in criminal charges being brought against a loved one in mental distress. And she dismissed concerns that lawful gun owners could lose their firearms based on trumped-up red flag petitions filed by ex-spouses or estranged family. That's illegal, she said, and courts are well-versed at ferreting out false claims.

Still, Groban added, a yellow flag law is better than nothing.

"I think it has been used 20 or something times since it has passed," Groban said. "So those 20 instances may have saved someone from suicide or doing harm to others, and that's a wonderful thing. But it could be even stronger."

One of those lives was the suicidal man involved in the September 2020 standoff in Penobscot County. Six months after the first incident, the man experienced a mental health breakdown and got in another armed standoff with police.

District Attorney Marianne Lynch said the case illustrates that the yellow flag law doesn't require a person to receive treatment for the issues that led to them losing their guns. And she says it shows that even when guns are taken away, they can be still be borrowed or stolen from friends or relatives, or purchased privately without a background check under Maine's gun laws.

"It makes it illegal for the person, but it doesn't make it impossible for them to get it," Lynch said.

The second standoff ended peacefully. But while he avoided criminal penalties the first time, the man now faces felony charges for violating the yellow flag order.