Maine missed its chance to pass smarter, simpler gun policy

A portrait of Margaret Chase Smith in the background as proponents of gun safety rally in the halls of the State House on Jan. 3, 2024. (Jim Neuger/Maine Morning Star)

It appears Maine’s legislative session will conclude without any floor debate or votes on perhaps the most effective gun safety reform, a proposed red flag law.

Democrats, who hold the majority in both the Maine Senate and House of Representatives, passed a slate of bills aimed to address gun violence after the state’s deadliest mass shooting in Lewiston last October.

But it seems politics and rhetoric blocked the path of legislation that in many ways is simpler, more proven, and arguably more constitutional than our yellow flag law — which got beefed up, but maybe not for the better.

Gov. Mills’ bill fails to address mental health concerns

One of the bills passed by the Legislature was introduced by Gov. Janet Mills and approaches gun safety through a number of avenues. Though it includes numerous popular reforms, the weaker aspects of the bill make adjustments to the state’s yellow flag law, which requires that an individual be taken into protective custody and given a mental health evaluation in order to temporarily bar them from possessing or obtaining dangerous weapons. 

The original yellow flag law was passed in 2019 with the help of the pro-gun Sportsman’s Alliance of Maine just days after some Democrats joined with Republicans to sink a red flag proposal over what they said were “due process” concerns.

The updated bill lengthens the amount of time an extreme risk protection order lasts and specifies that it can be extended; it allows for an assessment via telehealth to determine if a person “presents a likelihood of foreseeable harm;” it says that in certain cases a practitioner can rely on recent personal observations from a third party; it allows for another state’s extreme risk protection order to carry over into Maine; and it also allows law enforcement to apply for a warrant if they are unable to take an individual into protective custody.

During the Senate debate, Sen. Joe Baldacci said the governor’s bill is “filled with good intentions and has honorable aims,” but that he has “legal, constitutional and ethical concerns” about the lack of due process.

“We are, with this bill, going to allow any law enforcement officer to take someone into custody if they are mentally ill and may possess a dangerous weapon,” said Baldacci (D-Bangor).

He warned the bill is “not gonna do what it’s intended to do but it’s going to authorize the mentally ill to be arrested.” He also pointed out that a hearing is required after 30 days, though that deadline can be extended. “Where are we going to put these people? Are we putting them in jail?”

The mental health community has been united in its frustration with the yellow flag statute, particularly the provision that requires a mental health evaluation to confiscate an individual’s firearms.

During the public hearing on the governor’s bill, the National Alliance on Mental Illness Maine testified in opposition due to concerns with linking Second Amendment rights to someone’s mental health. 

David Moltz with the Maine Association of Psychiatric Physicians described the provision as “stigmatizing” and argued that it ignores people who are a threat but don’t have a diagnosed mental illness.

Red flag proposal revisited

In the final weeks of the session, as committees wrapped up their work, House Speaker Rachel Talbot Ross (D-Portland) called on the Legislature to reconsider an updated version of the policy rejected in 2019: a proposed red flag law.

Unlike the yellow flag law, which requires the involvement of law enforcement and a mental health evaluation before petitioning a judge to confiscate a person’s firearms, the red flag proposal would allow a family member (or law enforcement) to file a petition if a person is suspected of posing a “significant danger of causing severe harm” to themself or others. 

Twenty-one states currently have similar laws in place.

In her testimony on the bill, Talbot Ross cited the mental health concerns, as well as reports from law enforcement that the requirements of the yellow flag law are cumbersome. The Speaker also recommended several amendments to address due process concerns and raise the burden of proof. 

“Through years of policy choices, we have built regulations and structures that are not working adequately to protect and prioritize lives,” she said. “We can choose to do something different.”

The bill was advanced out of committee, but that’s where its progress ended. In a statement to Maine Morning Star after the Legislature adjourned without taking up the measure, a spokesperson for the Speaker’s office said, “Given the contentious debate over the budget and the late hour, Speaker Talbot Ross believed the legislation couldn’t receive the attention it deserves.”

I agree this proposal deserved more serious attention than it got.

Some of the opposition to the bill had to do with its late introduction, which followed a pattern this session of significant legislation being added or amended in the 11th hour. However, I would guess an earlier introduction, even if it allowed for more thoughtful consideration, would not have changed the result given what seems to be a reflexive skepticism to the policy.

The ‘red flag’ and ‘yellow flag’ distinction is a misnomer. They do not equate to Smokey the Bear’s fire hazard scale, where one policy is slightly more severe than the one before.

The ‘red flag’ and ‘yellow flag’ distinction is a misnomer. They do not equate to Smokey the Bear’s fire hazard scale, where one policy is slightly more severe than the one before. However, in crafting Maine’s homegrown gun law, I would bet it was the intention of its proponents to frame it as such, as a compromise that everyone could get behind (and we media outlets are guilty of perpetuating that confusion by relying on those titles for shorthand).

Not only did the mental health community come out in overwhelming support for the red flag proposal, but legal experts largely favored it. 

During his floor speech, Baldacci, an attorney, said that he believed the red flag proposal “has more constitutional muster” than the updated yellow flag law.

In joint testimony in support of the red flag bill, district attorneys for Aroostook, Cumberland, Kennebec and Somerset counties wrote, “When given an option, we prefer a straightforward process over a complicated one. This bill takes into consideration the emergency nature of the circumstances and has much better enforcement and prevention tools than the current law.” 

Describing the yellow flag law as a well-intended “red herring,” the district attorneys said that even with its changes, the law “requires significant prosecutor time to accommodate procedural interests of gun owners through needlessly cumbersome process.”

The fact is, one policy is straightforward, and the other is complex (and thus harder to use) and designates gun violence a mental health problem — and that is by design. 

Republicans, who refused to back any gun laws this session, often complained that none of the new laws would have stopped Robert Card from gunning down dozens of innocent people on the night of Oct. 25. 

An interim report from the commission to investigate the Lewiston shooting said the yellow flag law should have been activated. Further, they said the decision to leave the removal of Card’s firearms to his family was an “abdication of law enforcement’s responsibility.” 

“This decision shifted what is and was a law enforcement responsibility onto civilians who have neither the legal authority to begin the Yellow Flag process nor any legal authority to seize weapons,” they wrote. 

Had Maine had a red flag law in place, those family members would have had a more clear path to have Card’s weapons temporarily confiscated (two weeks for an emergency order under Talbot Ross’ proposal), without the involvement of law enforcement, or a diagnosis, or without having him taken into custody.

Next time this comes up, I hope Maine lawmakers stop listening to all the rhetoric around gun laws and focus on what makes good policy, because sometimes it is a matter of life or death.

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