I applaud former Maine Gov. Paul LePage’s effort to raise $500,000 in donations to help support victims of the Oct. 25 mass shooting in Lewiston. However, had he lent his support to a “red-flag” law while still serving as governor, this charitable effort might be unnecessary.

During his two terms in office, LePage consistently opposed the passage of legislation limiting gun access and in 2018 vetoed a red-flag law passed by the Legislature, objecting that it lacked sufficient due process protections.

The red-flag bill was aimed (no pun intended) at “high-risk” individuals who presented an “imminent and substantial risk of serious bodily injury” to themselves or others, who had a mental illness controllable by medication, and who demonstrated a pattern of “of voluntarily and consistently” failing to take their medication while not under supervision.

Upon the petition of a law enforcement officer, family or household member, a judge could issue a temporary “community protection order,” effective for 21 days, which would prohibit the high-risk individual from owning, possessing, buying or receiving a firearm. The temporary order could be based upon the affidavit or testimony of the petitioner and any witness offered by the petitioner, all without advance notice to the high-risk individual (a summary process known as “ex parte”).

A testimonial hearing would then be held within 21 days, giving the high-risk individual advance notice and the opportunity to defend himself. If sufficient evidence were presented, the judge could authorize the temporary order to be extended for up to 180 days.

Robert Card, the perpetrator of the Oct. 25 mass shooting might have been a poster child for the proposed law. He was giving off overt danger signals for months before his rampage, signals perceived with alarm by those close to him.

Would a red-flag law have actually prevented Card’s rampage? The answer to that question will have to await the findings of a commission appointed by Gov. Janet Mills, which has been charged with conducting an in-depth investigation into the mass shooting, its causes, and law enforcement’s response.

There are, however, indications that Card’s family might have availed themselves of a red-flag law, had one been in place. Last May Card’s ex-wife and son contacted the Sagadahoc Sheriff’s office, reporting concerns about his deteriorating mental health condition and his stockpiling of guns and rifles.

I don’t understand LePage’s veto rationale that the red-flag bill lacked adequate due process.

The term “due process” is a legal shorthand for the notion the government must provide fair procedures before depriving its citizens of life, liberty or property. It’s a flexible concept that varies with the seriousness of the potential deprivation. Generally, however, it includes the right to reasonable notice, a hearing before an impartial judicial officer, an opportunity to present evidence and argument, and the chance to confront and cross-examine witnesses offered by the government.

By that measure, the red-flag bill included greater due process protections than those contained in the Protection from Abuse (PFA) statute, a widely used Maine law first enacted in 1995 to protect spouses, intimate partners, children and household members from the threat of domestic violence.

Like the red-flag bill, the PFA statute allows for temporary ex-parte restraining orders, lasting for up to 21 days, followed by notice and an adversarial evidentiary hearing before a final order can be issued.

But while the PFA statute only requires plaintiffs to prove their case by a preponderance (51%) likelihood, the “red flag” bill would’ve required a more rigorous standard of proof, known as “clear and convincing,” a hurdle higher than the preponderance of evidence standard and lower than the criminal standard of beyond a reasonable doubt.

Ironically, the PFA statute, which has generated little controversy, can be used as a backdoor method to deprive someone of firearms for two years or longer with fewer procedural obstacles. If the court finds that the defendant in a PFA case has committed abuse and also represents a “credible threat to the physical safety of the plaintiff or a minor child residing in the household,” the judge may order the defendant to surrender his firearms for the duration of the restraining order.

While Maine did not get a red-flag law in 2018, the following year, after LePage’s term in office had ended, the Legislature enacted an alternative “yellow-flag” law, one that allows a court to issue an order of up to one-year’s duration removing firearms from the possession of someone who poses a “likelihood of foreseeable harm” to himself or others.

The yellow-flag process, though, requires more intermediate steps than the red-flag bill. A law-enforcement officer must first take the person into protective custody and promptly deliver him to a medical practitioner for evaluation. If the findings of the evaluation warrant it, a district attorney can then present a petition to a judge within 14 days seeking a longer-term restraining order.

These procedural hurdles create a burden for overworked police officers, medical practitioners and district attorneys. Needless to say, the law isn’t used often.

By contrast, the red-flag law could have been initiated more quickly and easily by family or household members, who are usually the canaries in the coal mine.

So while the survivors and family members of deceased victims of the Oct. 25 massacre will undoubtedly appreciate the financial help LePage brings their way, I’m sure they’d have appreciated it even more if, during his service as governor, he had seen fit to back legislation which could have prevented their grievous losses in the first place.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 17 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at epsteinel@yahoo.com

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