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Maine Democrats make last-minute push for 'red flag' gun law

Various guns are displayed at a store in Auburn, Maine, on July 18, 2022.
Robert F. Bukaty
AP file
Various guns are displayed at a store in Auburn, Maine, on July 18, 2022.

Democrats this week appeared to be nearing the finish line on a slate of gun safety proposals in a response to the deadliest mass shooting in state history. However, just as the committee overseeing those bills voted to send them to the full Legislature, Democratic leadership released a proposal that many had long expected, but was conspicuously absent from their previous slate of priorities: a “red flag” initiative that would allow family members to petition a court to temporarily confiscate the guns of dangerous individuals.

The timing has raised a lot of questions.

Republicans have described the bill as a late-session ambush designed to catch gun rights groups and the public off guard. Democratic Gov. Janet Mills, who helped broker the 2019 compromise that yielded Maine’s current firearms confiscation law — colloquially referred to as a “yellow flag” — has said nothing about it, at least not yet. Meanwhile, there’s a lot of speculation about whether the bill has the votes to pass the Democratic-controlled Legislature, or get by Mills, who opted to tweak Maine’s existing confiscation law rather than propose matching it with the more than 20 states that have red flag laws.

The Democrats backing the new bill aren’t making any promises.

“If people want to vote against it, if the bill doesn't pass, if the governor ends up not supporting it, fine,” said Senate President Troy Jackson, D-Allagash, who supports hearing the proposal even though he’s not listed as a co-sponsor. “But I still think the discussion, especially in light of what happened in Lewiston, with family members trying to have (Robert) Card's guns taken away from him, is a worthy discussion for all of us to have.”

Post shooting, a focus on red flag

A red flag proposal had been discussed ever since a disturbed Robert Card fired a total of 54 rounds in 123 seconds, killing 18 people and wounding 13 others at two separate locations in Lewiston last October.

Such a bill was designated a priority by gun safety activists, who repeatedly cited law enforcement’s complaint that Maine’s yellow flag process is cumbersome. It’s a point acknowledged in the interim report by the independent commission tasked with investigating the tragedy. However, the commission also noted that the yellow flag law should have been used in Card's case.

The commission’s split finding has predictably produced fodder for both sides of the politically fraught gun debate. Republicans declared last week that the commission’s report is proof that Maine’s yellow flag law is sufficient and that none of the Democratic proposals released in February are necessary.

Sam Levy, regional legal director with Everytown for Gun Safety, took the opposite view, saying that the commission’s findings “reinforce the urgent need for a real red flag law in Maine.”

Democratic lawmakers did not rush to the same conclusion, at least not publicly.

Shortly after the commission’s report, neither majority leader Rep. Maureen Terry, D-Gorham, nor assistant majority leader Rep. Kristen Cloutier, D-Lewiston, suggested during an interview with Maine Public that a red flag proposal was imminent. At one point Cloutier expressed regret that there wasn’t greater awareness about Maine’s yellow flag law before the Lewiston massacre.

"It's truly awful that we weren't paying closer attention to the fact that we have that law. But we are now," Cloutier said.

Still, Cloutier and Terry did not close the door on the prospect of a red flag bill, saying that some members of their caucus supported the concept.

Both Democratic leaders are co-sponsors of the bill unveiled this week.

Red v. yellow gun bills

Maine is the only state in the nation with a yellow flag law. But before we delve into why that is, let’s explore the critical differences between these color-coded gun laws.

In most red flag states, family or household members as well as police can ask a court to order someone to relinquish their firearms if they are deemed to pose a credible threat to themselves or others. If approved after a hearing, those restrictions typically last for a year.

Maine’s yellow flag law is different in two key ways.

First, it does not allow family members to directly petition a court to remove someone’s guns. That process must start with the police. And as we’ve learned since the Lewiston shootings, deputies in the Sagadahoc County Sheriff’s Office opted not to try to invoke the law on Card despite family and friends raising concerns about his mental state and his access to guns.

The second key difference is that Maine requires police — after taking the person into “protective custody” — to bring them before a medical professional for an assessment if he or she “presents a likelihood of foreseeable harm.” If so, a judge then decides whether to “endorse” the finding and order the person to surrender their guns — again, for up to a year after a hearing.

Proponents say the additional step of a medical assessment helps ensure “due process” — a reference to the clause in the U.S. Constitution that says the government shall not “deprive any person of life, liberty, or property, without due process of law.” They also contend that requiring police to initiate the process also reduces the likelihood that a gun owner may have their weapons seized in response to a false petition filed by, say, a vindictive former partner. (Red flag law supporters say this almost never happens in other states, and when it does, the false accuser can be prosecuted.)

The proposal submitted this week by Democratic legislative leaders, LD 2283, would allow family or members of a household to seek a “crisis intervention order” from a judge to force a potentially dangerous person to temporarily surrender their firearms.

A hearing would have to be held within 14 days and the gun restriction could remain in place for up to a year, as it is under the yellow flag law. But there is no medical assessment required.

Yellow flag: a sacred cow?

The yellow flag law was a compromise negotiated in 2019 by Gov. Janet Mills, David Trahan with the Sportsman’s Alliance of Maine, police groups and some gun control advocates. It was clear at the time that a red flag bill likely didn’t have the votes to become law because of opposition from almost all Republican lawmakers as well as numerous Democrats from rural areas.

It sailed through both chambers of the Legislature in the final days of the legislative session and was signed into law by Mills, who had also raised concerns about the red flag bill.

“This legislation aims to strike a balance between protecting the public and individuals from a person likely to cause harm while at the same time safeguarding that person’s constitutional rights and their right to due process,” Sen. Lisa Keim, a Dixfield Republican who was lead sponsor of the yellow flag law, said in June 2019 just prior to the bill receiving final approval.

The law took effect a year later. But police only used it about two dozen times in its first two years, in part because they hadn’t learned how to navigate the cumbersome process, but also because many hospitals didn’t want potentially dangerous people brought into their facilities for an evaluation.

Utilization of the yellow flag law picked up significantly after the state contracted with a behavioral health provider, Spurwink, to have medical practitioners available to conduct those evaluations with police agencies around the state by video conference.

But it wasn’t until after the Lewiston mass shooting that police really began using the yellow flag process. It had been used 81 times between July 2020 and Oct. 25, 2023, but has been invoked more than 130 times since then.

Jackson acknowledged that the yellow flag law was the result of a hard-fought compromise and that tough negotiations can sometimes produce a pride of ownership by its participants.

“There were a lot of people in this building that went out on a limb,” he said. “I don't think we should throw that away.”

But he also said that there may be circumstances when a family member should be able to initiate the confiscation process.

“I'm not criticizing the yellow flag,” he said. “I think it has done a lot of good and I'll continue to defend it. I just think we probably need something else in tandem with it.”

Response largely as expected

Reactions to the late-session bill were, well, fairly predictable.

Gun control groups praised the proposal.

“A comprehensive red flag law has been proven to save lives in states across the country, and now we’re one step closer to being able to use this critical measure to save lives in Maine,” Kathleen McFadden, a volunteer with the Maine chapter of Moms Demand Action, said in a statement. “Since the interim findings from the Lewiston Commission reinforced the need for a one-step red flag law to disarm someone when family members recognize dangerous warning signs, we have only increased our advocacy for this life-saving measure.”

Republicans, meanwhile, are slamming the last-minute timing of the bill.

“We are within the last three weeks of a two-year legislative cycle. There had been ample time to bring this piece of legislation forward,” said Rep. Rachel Henderson, a Rumford Republican who serves on the Judiciary Committee. “And although I can’t speak to the motives of why it is so late, it does really beg the question about why on Earth is this coming to us at such a late hour?”

Likewise, the Republican sponsor of the original yellow flag bill said the existing process works, as long as police are willing to use it.

“What are they trying to do? Slide it through without enough public notice and public comment to have it pass this time?” said Keim. “It begs the question why now? We’ve already considered it. We’ve considered it every year. So this isn’t new legislation, it isn’t a new idea.”

What happens now?

LD 2283 was referred to the Judiciary Committee, which just wrapped up work on several other gun-related proposals. A public hearing had not yet been scheduled for the bill as of Friday morning, but it could happen as soon as next week.

A large turnout from both sides should be expected, despite the short notice.

Maine's Political Pulse was written this week by chief political correspondent Steve Mistler and State House correspondent Kevin Miller, and produced by digital editor Andrew Catalina. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.

Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.