Lawmakers heard hours of testimony on Wednesday from supporters and opponents of a proposed "red flag" gun law, offering a glimpse of the coming public debate over a controversial referendum on the November ballot.
Wednesday's hearing was largely perfunctory because voters — not lawmakers — will decide this fall whether Maine should join roughly 20 states with "red flag" laws that allow family members to directly petition a judge to order someone to give up their guns. But Democratic leaders agreed to hold the hearing — which was required by state law — after getting pressure from Republicans and gun owners' rights groups.
If approved by voters, the red flag proposal would supplement an existing "yellow flag" law that only allows police to initiate the court process to temporarily confiscate the guns of a person deemed to pose a danger to themselves or others.
The Maine Gun Safety Coalition led the effort to gather the petition signatures to send the issue to voters. The coalition's executive director, Nacole Palmer, told members of the Judiciary Committee that the October 2023 mass shooting in Lewiston was proof that Maine's current "yellow flag" law is inadequate.
Some member of the gunman's family had raised alarms with police about his deteriorating mental health and his access to guns in the months before the shooting that killed 18 and injured 13. The gunman's Army Reserve leaders were also aware of his paranoia and access to guns.
"Perhaps things have been very different for Maine if a real extreme risk protection order law had been in place for his family to use," Palmer said. "Extreme risk protection orders empower families to go directly to the court if a loved one is in crisis and may pose a threat to themselves or others."
Arthur Barnard displayed a framed portrait of his son, Arthur "Artie" Strout, as he testified to the committee. Barnard was at Schemengees Bar & Grill with his son that night in Lewiston but left just minutes before the gunman, Robert Card, walked in and opened fire on the crowd with a high-powered assault rifle. Strout was killed along with nine others at the pool hall and bar.
"I believe in our voting process and if this allows a family member to make that step, Robert Card might not have been able to do this," Barnard said. "We've got to do something to meet in the middle."
But gun owners' rights groups oppose the proposal, saying red flag laws infringe on Second Amendment rights and can lead to violations of individuals' due process. The administration of Democratic Gov. Janet Mills also testified against the proposal.
Mills negotiated the yellow flag law in 2019 with both gun owners' rights groups and gun control advocates after it was clear that a red flag proposal could not pass Maine's historically gun-friendly Legislature despite Democratic control. One key aspect of that compromise was that, before someone can be forced to temporarily relinquish their guns, police must take the person into "protective custody" and then obtain an assessment from a medical professional that the person poses a threat. A judge would then issue the order the order.
Lt. Michael Johnston, the principal instructor of the yellow flag law with the Maine State Police, said the law already allows family members to start the process by raising their concerns with law enforcement.
Johnston said he was concerned that the yellow flag law could undermine the existing law, which already allows family members to start the process by raising their concerns with law enforcement. He also said taking someone into protective custody adds another layer of protection for both police and for the subject before police are ordered to take away their firearms.
"I'm concerned about what is the harm that we are seeking to prevent that isn't already covered there?" Johnston said. "And does it potentially confusing things? Or do you get diminishing returns if you have similar processes in place and people aren't sure which ones to take advantage of?"
The yellow flag law has been invoked 881 times since 2020. The vast majority of those instances occurred after the Lewiston shootings, however, amid strong public backlash over the failure of police to utilize the law against the gunman. Most of the individuals who were subjects of yellow flag orders were suicidal.
Dr. Mark McAllister, an emergency physician from Rockport, was involved with the 2019 discussions that led to the yellow flag law after he raised concerns about the lack of mental health assistance to people subject to a red flag proceeding. McAllister told lawmakers that he's personally seen the yellow flag process work with individuals who were in the middle of a mental health crisis — people who were compelled to receive treatment because of the process.
McAllister said he believed the Lewiston shooting is not an example of the law's failure but a failure of it's implementation.
"What we have in Maine is special and I believe the 'red flag' states should be looking to us for advice," he said.
Lawmakers have three options when presented with a citizen's initiative that qualified for the ballot. They can approve the proposed law as written, thereby eliminating the need for a statewide vote. They can send the issue to voters without any changes to the bill. Or they can send the original version to voters alongside a "competing measure" crafted by the Legislature.
The Democratic leaders of the Judiciary Committee, Sen. Anne Carney of Cape Elizabeth and Rep. Amy Kuhn of Falmouth, had initially opted not to hold a public hearing on the red flag proposal. But that decision encountered strong push-back from Republicans and gun owners' rights groups, who pointed out that a 2019 law requires a hearing on citizen-initiated bills before they go to the full Legislature and to voters.
The Sportsman's Alliance of Maine, Gun Owners of Maine and the NRA had threatened to sue the Legislature unless lawmakers held a public hearing.
