Question 2 on the November ballot proposes creating a new path to temporarily confiscate firearms from dangerous people, but the debate over the proposal centers on whether an older, similar law crafted by a prominent gun rights group and Gov. Janet Mills six years ago is enough.
Proponents of Question 2 argue that the existing law — often referred to as Maine’s yellow flag law — is a failed experiment that was not used to stop a gunman in Lewiston from killing 18 people and injuring and traumatizing countless others in 2023 despite warnings about his deteriorating mental health. It was the worst mass shooting in state history and one of the most deadly in the U.S. that year.
“Had Question 2 and a real extreme risk protection order law been in place, perhaps one of those many warnings could have resulted in (the gunman’s disarmament),” said Jack Sorensen, spokesperson for Safe Schools, Safe Communities, the lead organizer of the ballot initiative.
Question 2 opponents counter that Maine’s law, rarely used before Lewiston, has seen an explosion in utilization by police since then, preventing suicides and other gun deaths.
“Our law is doing exactly what you're asking for at a rate hundreds of times more effective than other states with red flag laws,” said David Trahan, director of the Sportsman’s Alliance of Maine, the gun rights group that helped create Maine’s yellow flag law.
In each case, the campaigns are using dueling claims to reframe the same set of facts about the tragedy in Lewiston, which brought Maine’s historically lax gun laws into sharp focus. Question 2 is an outgrowth of that scrutiny. It is brought by gun safety advocates who wanted the Maine Legislature to enact a red flag law after Lewiston, but who were ultimately thwarted by the governor and Democrats who control the State House.
What would Question 2 do?
Question 2 is known as an extreme risk protection order law, or ERPO. More than 20 other states and the District of Columbia have one. They are commonly referred to as red flag laws. Such laws vary widely, but the key difference is often about who can initiate the firearms confiscation process.
Question 2 would allow family and household members to petition a judge and have a loved one’s guns temporarily taken if they’re suspected of being a danger to themselves or others. Law enforcement officials can also petition a judge to have someone’s guns removed.
In either case, an affirmative order by a judge is a civil, not criminal, order. Not only does it result in the removal of firearms, it also prevents someone from purchasing one.
A petition is backed by sworn statements, or affidavits, that assert why someone might be dangerous. Under the proposal, making a false statement — a frequent concern among gun rights activists — is a felony.
The subject of a petition will be notified and entitled to a hearing within 14 days before their firearms can be taken, although there is an emergency provision in the proposed law that would allow the court to order a removal without warning. Judges reviewing the petition could restrict someone’s access to firearms for up to a year.
Differences between Question 2 and yellow flag
The key difference between Question 2 and the yellow flag law revolve around the process used to confiscate weapons and who can initiate it.
Under Maine’s yellow flag, only a police officer can initiate the order. If Question 2 becomes law, family and household members, as well as law enforcement, can do so.
Maine’s existing law also requires police to take the person into protective custody, and then hold them while they undergo a mental health evaluation. Those are not requirements in the law proposed by Question 2.
The additional steps — protective custody and a mental health evaluation — are unique to Maine’s law and the reason why it’s an outlier among conventional ERPO or red flag laws. It’s also why some organizations tracking ERPO laws, including The National ERPO Resource Center, don’t count Maine as having one despite a state statute using its namesake.
Maine’s novel process is also animating the debate over Question 2. Supporters of the measure argue that the yellow flag law is overly restrictive, time consuming for law enforcement and wrongly uses mental illness as a precursor to violence.
“Someone who is experiencing anger, rage, or violence doesn’t necessarily mean that you can put them into some sort of mental health diagnosis box,” said Sorensen, adding that the mental health evaluation is too narrow of a test to determine dangerousness.
Defenders of the yellow flag law argue the mental health evaluation is one of the ways to ensure due process for someone about to lose access to firearms. It’s one reason why they claim Question 2 will undermine the yellow flag law.
If enacted by voters, the proposal would not replace the yellow flag law, but police might use the less time-consuming red-flag process to remove or restrict access to firearms.
The politics of due process
The yellow flag law was a political compromise anchored to its due process provisions.
Trahan has argued that taking someone’s Second Amendment rights should be thorough, even difficult. The process in Maine’s yellow flag law was a key selling point when he and Mills touted its drafting in 2019. While the legislation upset some gun rights activists — Trahan said some tried to get him fired over it — it received bipartisan support in the Maine Legislature despite lawmakers’ historical deference to Maine’s powerful gun lobby.
It also won over some gun safety activists even though they had pushed for a red flag law following the 2018 school shooting in Parkland, Fla. Mills also testified in favor of a 2018 red flag bill when she was Maine’s attorney general, but sought a compromise with SAM when she became governor the following year.
“We found common ground on one of the most controversial issues of our time,” Mills wrote in a recent column for the Portland Press Herald.
Question 2 mirrors the yellow flag law in notifying the person that a restriction petition has been filed against them, as well as their right to a hearing. However, its opponents claim the evidence standard used by a judge makes it too easy to restrict someone’s access to firearms.
Part of this argument comes from language that would allow a judge to issue a restriction order based on the “preponderance of evidence,” which is a lower standard than the “clear and convincing evidence” standard in the yellow flag law.
Sorensen noted that the “preponderance” standard is exactly the same as Maine’s domestic abuse law, which can also be used to restrict access to firearms.
“We're talking about two laws where the end step, depending on what a judge finds, is a removal of firearms,” Sorensen said. “And so it's been good enough for that law for decades, but suddenly it's not good enough here. I just don't buy it.”
The usage debate
Police have invoked the yellow flag more than 1,000 times in the past five years.
That statistic has been touted frequently by opponents of Question 2.
“It's making Maine a safer place to live. Isn't that what we want?” Trahan said.
The utilization rate is higher than some states with red flag laws, including many of Maine’s New England neighbors.
But the raw numbers don’t tell the whole story.
States have different gun laws, which might affect an ERPO law’s utilization. Massachusetts, for example, has infrequently used its red flag law despite expanding it last year to allow more people to initiate a restriction order. One possible reason: The Bay State has a permit to purchase law and police can revoke a license under certain circumstances.
Connecticut also has a licensing law, yet its red flag law was used more than 1,800 times last year.
The heavy use of Maine’s yellow flag law also requires context. Before the Lewiston tragedy, the law was used about 80 times over three years. More than 100 police departments had never used it at all. Many of the heaviest users were larger police departments; 20 police departments in Maine have 20-64 full-time police officers, according to a recent report by the Maine Criminal Justice Academy to the Legislature. (Most local police departments in Maine have between one and eight cops and an increasing number of smaller towns have no local police department and rely on either the Maine State Police or one of 16 county sheriff offices.)
Police have invoked the yellow flag law more than 950 times in the 22 months since Lewiston, a tenfold increase.
While Question 2 opponents cite the spike in use as evidence that the current law is working, gun safety advocates say it reveals that the law is too restrictive and casts too small a net to get firearms out of the hands of dangerous people.
“It really just underscores for us the need for a true extreme risk protection order,” Sorensen said. “And the bottom line is this, Maine's current law existed and failed to prevent the tragedy in Lewiston.”
Lewiston shooting shapes debate
Both sides of the Question 2 debate have invoked the Lewiston tragedy. While supporters argue a red flag law could have prevented the shootings, opponents blame a series of individual failures, as well as law enforcement officials in the Sagadahoc County Sheriff’s Office for not using Maine’s yellow flag law to disarm the gunman.
A report by a commission handpicked by Gov. Mills to investigate the shootings found that the law should have been used. It also acknowledged complaints from law enforcement officials that the law is “cumbersome, inefficient, and unduly restrictive.”
Anne Jordan, director of the shooting commission and former commissioner for the Maine Department of Public Safety, is now also advocating for passage of Question 2. In a debate televised by WGME-13, Jordan said the commission did not take a “political position” on the yellow flag law, but the “bottom line is we need to provide as many tools as possible, for law enforcement and family members, to get the help they need to protect public safety.”
Mills has said that families shouldn’t have that responsibility and that Question 2 puts them at risk.
“Police officers are, on the whole, trained and professional in responding to complaints about people who are dangerous,” she said during an interview for a series by Maine Public, the Portland Press Herald and FRONTLINE about the Lewiston shootings. “That's their job. It's not the job of a family member. … It's an enormous responsibility that (families) probably shouldn't have.”
She added, “I wouldn't want that responsibility.”
Sorensen said current law limits family’s options, forcing them to rely on police officers to intervene.
“Right now, families have the very limited, very cumbersome, very complicated tool that Maine has, and they're doing their best to use it,” Sorensen said. “But that doesn't mean that we shouldn't do something better.”
This edition of Maine's Political Pulse was written by State House bureau chief Steve Mistler and produced by news editor Andrew Catalina. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.
