Last summer, Scarborough police received a call from a woman who said her son was under the influence of drugs and alcohol and was threatening to kill himself.
The officers wanted to use a new law that would allow them to temporarily block that person from possessing or buying guns. But they could not find a medical practitioner who would perform a clinical evaluation that was required under the statute, so the man was released from the emergency room with no restrictions in place.
“The law is on the books, but it’s not available to us to utilize at this time,” interim Police Chief David Grover said.
Maine’s so-called “yellow flag” law was the result of a bipartisan compromise. It creates a process for police to temporarily take guns away from people who are in danger of hurting themselves or others. Unlike other states with similar laws, Maine requires a medical practitioner to sign off on the request. That provision was key to broad legislative support for the bill in 2019.
Law enforcement agencies have taken 18 people into protective custody in the last year with the intent to pursue a weapons restriction order. But at least one application – the one in Scarborough – never made it to a judge because no medical practitioner would do the evaluation.
Furthermore, many hospitals have simply refused to do evaluations since the law took effect in July 2020 because they are concerned about retaliation against their employees. It’s impossible to know how often officers failed to start an application because of that barrier, but police and prosecutors say the law is being underutilized because some hospitals aren’t participating.
“If that process doesn’t happen, I think it’s fair to say, yeah, there could be increased risk of harm to that person themselves and to the public,” Lt. Michael Johnston of the Maine State Police said.
Jeff Austin, a lobbyist for the Maine Hospital Association, said the law specifically allows the evaluation to be conducted at an alternative site to address that concern about safety. He expected the state to set up a system to do them remotely, but that hasn’t happened. So the state’s three biggest hospital systems – MaineHealth, Central Maine Healthcare and Northern Light Health – are not participating.
“I think our members have a simple request because that risk is foreseeable and because there is a practical way to mitigate that risk,” Austin said. “What are we waiting for?”
David Trahan, executive director of the Sportsman’s Alliance of Maine, was involved in negotiating the requirement for the medical evaluation. He also was confused about why those aren’t happening, either as part of existing processes in emergency rooms or through telemedicine.
“I’m perplexed as to why this can’t get resolved, because hospitals are already doing assessments of patients in protective custody to determine whether they’re to be committed,” he said.
A spokeswoman for Gov. Janet Mills said she is aware of these concerns and plans to meet with the hospital association soon.
“This law is the most meaningful public safety legislation enacted in recent years and results from extensive discussions with public health experts, domestic violence advocates, members of law enforcement, sportsmen and women, the Judicial Department, and others,” spokeswoman Lindsay Crete wrote in an email. “The Administration is hopeful that the Maine Hospital Association will work with law enforcement and others to fully implement the law, and we will continue to work with them to that end.”
COMPROMISE LEGISLATION
Extreme risk protection orders, sometimes called red flag laws, allow family members or law enforcement officers to petition a court for a temporary removal of weapons from a person who poses a risk to themselves or others. Nineteen states and the District of Columbia have passed variations of those laws, according to Everytown for Gun Safety, a national group that supports gun control.
In 2019, lawmakers rejected a similar proposal for Maine. Supporters said the bill would allow loved ones or police to intervene before a tragedy occurs, but opponents said the measure was unconstitutional and did not help people address underlying mental health issues. Instead, legislators passed the compromise that has come to be known as the yellow flag law.
Maine’s version starts with a law enforcement officer taking a person into protective custody. That means the officer has probable cause to believe the person is experiencing a mental illness and presents an imminent threat of physical harm to themselves or others. The law says the officer should immediately bring the person to a medical practitioner – in practice, the emergency room. That practitioner would assess their likelihood of serious harm, and that process could result in a petition to a judge for involuntary hospitalization, often called a “blue paper.” State law already prohibits a person who has been involuntarily hospitalized from possessing a firearm.
Under the yellow flag law, the officer can seek a weapons restriction order once the person is in protective custody. As part of that process, a medical practitioner must find that the person is likely to harm themselves or others in the foreseeable future. The completed application goes to a judge, who can sign a temporary restriction order. The law doesn’t spell out a timeframe, but the process is meant to happen very quickly. With that order in hand, police can seize that person’s firearm or block them from buying one, even if they are not hospitalized for further treatment. The judge will then hold a hearing within two weeks and decide whether to extend that order for up to a year.
“I think it’s a good balance between protecting people’s personal rights and ensuring that we are proactively trying to protect public safety,” Androscoggin County District Attorney Andrew Robinson said. “It’s a procedure that allows for quick response.”
The Maine Hospital Association raised its concerns during negotiations on the bill, and the final law directs the administration to seek a contract for the technology to do remote evaluations. But people who worked on the bill said that hasn’t happened.
Peter Wright is the vice president of operations for Central Maine Medical Center and the president of Bridgton and Rumford Hospitals. He said Central Maine Healthcare is concerned that people might blame hospital staff for taking away their weapons and lash out against them in a violent way. He also said emergency rooms do not specialize in psychiatry and are not the right place for these evaluations to take place at all. He said the state should set up a system for video evaluations, and law enforcement could arrange those at a police station or even at a person’s home.
“This isn’t working because the hospitals as an aggregate voice spoke up about these very concerns when this was in the Legislature, and nobody listened to us,” Wright said.
Spokespeople for MaineHealth and Northern Light Health confirmed that they are not performing yellow flag evaluations but deferred to the Maine Hospital Association for comment.
A spokeswoman for the governor did not answer a question about the expected contract for telehealth evaluations. Instead, a spokeswoman for the Maine Department of Health and Human Services said the state is in the process of creating a 24-hour crisis center that could be used as an alternative location for these evaluations.
“However, the Department does not subscribe to the belief that medical professionals, (who) routinely conduct these psychiatric evaluations in other scenarios, are not able to also conduct them in these circumstances,” Jackie Farwell wrote in an email. “The evaluations inherent in this law are no different than the assessments medical professionals have routinely conducted for years pertaining to, for example, involuntary hospitalization.”
SOME SUCCESSES
People who crafted the law said they believe they will be able to resolve the conflict over evaluations.
“I don’t expect that anything that’s first in the nation like this would just integrate instantly into the system. … I’m pleased to see that it’s still being worked on,” Sen. Lisa Keim, a Republican from Dixfield who was one of the sponsors of the yellow flag law, said. “I believe we can get to a place where it works.”
Some agencies have been successful in using the new law.
The Maine Attorney General’s Office said police from York County to Aroostook County have started the yellow flag process at least 18 times since the law took effect. In most incidents, the person was threatening to shoot themselves and had a firearm in that moment. A spokesman said he did not know how often a judge signed a temporary order or held a hearing in those cases. The Maine Judicial Branch said it also could not provide that information. The weapons restrictions orders themselves are confidential.
The Portland Press Herald was able to identify the outcomes for 15 of those cases by speaking to police and prosecutors who were involved in them. Of those, judges agreed to extend temporary restriction orders 10 times.
District Attorney Marianne Lynch, who covers Penobscot and Piscataquis counties, said her office had handled five of those cases. St. Joseph Hospital in Bangor did some of the evaluations, she said, but the hospital did not respond to a call last week.
In one case, the Penobscot County Sheriff’s Office responded to Hermon, where a 28-year-old man was threatening to shoot police and kill himself. He fired a shotgun during a standoff that lasted two hours. The sheriff’s office eventually took him into protective custody and secured a weapons restriction order.
Some prosecutors said they reached agreements with the individuals for an extended weapons restriction order. In one case, Maine State Police responded to a 38-year-old man in Vassalboro who was firing his gun at what he believed to be terrorists surrounding his home. Kennebec County District Attorney Meaghan Maloney said the VA was able to conduct a medical evaluation for a temporary order, and the man agreed to an extension of three months while he got mental health treatment.
“I have seen that there are cases where those who are in acute distress can be really assisted by this law, instead of waiting for a criminal case,” Maloney said.
Not every case has resulted in an extended restriction, though.
In one, the person was a Massachusetts resident, so the law did not apply to him. In another, a judge held the required hearing and decided there wasn’t enough evidence to keep the restriction in place. In a third, a prosecutor withdrew the case because a judge found that the person did not pose a danger to herself or others in a blue paper proceeding. And in a fourth, a prosecutor did not learn about the case in time to pursue the hearing and extension, but the attorney general’s office said the man was involuntarily hospitalized.
Even when the restriction was in place, it wasn’t an assurance. The man in Hermon was able to get a firearm from a family home while his restriction was in place, and he had another encounter with the sheriff’s office. Lynch said he is facing multiple charges, including a misdemeanor for that violation.
“These cases continue to underscore that we continue to need mental health facilities, mental health treatment,” she said. “Just taking a gun away from someone who is struggling with a significant mental health issue isn’t really going to address the issue.”
SHOOTING IN WELLS
In February, Brian Dunnigan called the Wells Police Department and asked to speak to someone about Maine’s equivalent of a red flag law. He said he then told an officer that he wanted to use that law to take a gun away from his brother-in-law because he had expressed a desire to kill himself while he was intoxicated on multiple occasions, and the family was worried for his safety. Dunnigan said the officer told him they couldn’t do anything to help, in part because doctors didn’t want to cooperate with police in using the statute. Three weeks later, Shaun Simmons shot another man and killed himself.
The phone call between Dunnigan and the detective was not recorded, and the Wells Police Department denied a public records request for the notes from that conversation. They also said they could not discuss that case. Dunnigan and his family are considering legal action against the department, and he said he wishes officers had at least done a welfare check on his brother-in-law to see if he might benefit from a weapons restriction order.
“I think this was a preventable tragedy, had the police performed their duty under the color of law to provide service to my family,” Dunnigan, 61, said.
Later in March, the Wells Police Department did use the yellow flag law when a 73-year-old man shot himself in the chest. Sgt. Adam Shaw said the department struggled to find a medical practitioner to do the evaluation but eventually worked with the man’s primary care physician to get the temporary order. The man later agreed to an extended weapons restriction order.
“It’s not like one person making the decision,” Shaw said. “There’s a lot of people along the way that have to agree, and nobody wants to do that unless it’s necessary. It’s quite a process.”
In Scarborough, Grover, the interim police chief, said the man who prompted their attempt at using the yellow flag law hasn’t used a firearm to hurt himself or others. But police have responded to other calls about him without the benefit of a weapons restriction order in place.
“The law doesn’t guarantee that a person couldn’t have a firearm in the future,” said Grover. “It’s just another potential tool to help law enforcement and family members and the person themselves stay safe.”
Staff Writer Diego Lasarte contributed to this report.
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