AUGUSTA — A bill that would allow police in Maine to temporarily confiscate guns from a person deemed by a judge to be a danger to themselves or others gained narrow approval from the Legislature’s Judiciary Committee on Wednesday.
But the fate of the bill, supported by the committee on a 5-4 vote, remains uncertain as two committee members who were absent have yet to cast their votes. In addition, another bill meant to replace the so-called “red flag” legislation is waiting in the wings, according to committee co-chair Sen. Mike Carpenter, D-Houlton.
“There have been some discussions now for several weeks about a different bill, which will be out in the next day or so, which will hopefully replace a process or be a modification of a process that’s been in Maine law for many years,” said Carpenter, who joined with Republican opponents in voting against the bill Wednesday.
The two senators who were absent, Shenna Bellows, D-Manchester, and Lisa Keim, R-Dixfield, will have until the end of Friday to cast their votes.
Carpenter said the alternative bill would amend Maine’s “blue paper” law, which allows a court to temporarily detain a person based on mental health concerns. Carpenter said the law would be amended under the proposed bill to also allow police to temporarily confiscate firearms. That’s a different process than what’s been spelled out in the bill sponsored by Sen. Rebecca Millett, D-Cape Elizabeth. Her legislation would allow guns to be seized under a court order and without a mental health assessment or taking a person into custody.
Sen. Thom Harnett, D-Gardiner, a committee member who voted for the bill, argues that the mentally ill should not be the focus of the legislation because many gun-related deaths “involve intimate partner violence.”
“Uncontrolled anger in the moment and preventable loss of life due to suicide need to be addressed,” Harnett said in a statement emailed Wednesday night. “L.D. 1312 does that. While additional legislation might come forward, at this point, L.D. 1312 can help save lives and I support its passage.”
However, concerns over whether Millett’s bill would meet constitutional muster surfaced again Wednesday as the committee tacked two amendments to the measure before the close vote to approve it.
Those amendments spell out in legal detail how a court would issue a warrant to search for the firearms that would be seized, and a requirement that the person whose weapons are being confiscated be informed of mental health treatment resources.
The amendments also spell out what factors a court can use in determining whether to issue an order that allows for the search and seizure of weapons.
The factors include recent acts or threats of violence involving firearms, a pattern of acts or threats, the individual’s mental health history, evidence of substance or alcohol abuse and previous court orders, including protection from abuse orders.
Republicans, who have largely opposed the bill, argued Wednesday that it was unnecessary and probably unconstitutional.
Maine Attorney General Aaron Frey, a Democrat, said his office believed parts of the bill would be defensible in court but other parts would be problematic, including those that allow for a search for guns based on limited information.
“What may not be constitutionally defensible under the Fourth Amendment was a warrant that did not require any mention of where the firearm might be found or that the firearm would be found there, it just allowed for a search of the residence, which had no connection to whether or not the firearm was there,” Frey said.
The bill was the subject of dozens of hours of emotional public hearing testimony from both sides in the debate over gun violence.
“I don’t want to have this bill even on the table,” said Rep. John DeVeau, R-Caribou, who made a motion to kill the bill even before the committee could tack on any amendments. “There are other things we should be working on.”
DeVeau challenged Frey on the constitutionality of the bill and referred to a letter Frey’s office wrote advising the committee on the bill. DeVeau said the letter indicated to him there were concerns a court could strike the bill down, were it to become law.
Frey said only that he couldn’t predict what a court would do were the bill to face a civil rights challenge. “There is the problem with the warrant that may not survive a constitutional challenge,” Frey said, acknowledging that his office hadn’t given the bill a stamp of approval. “I can’t say with certainty one way or the other.”
Harnett, however, maintains that laws similar to Millett’s proposal have survived legal challenges.
“It is important to note that laws like L.D. 1312 have been upheld in courts around the country and I believe this bill, if enacted, will be upheld as well,” he said in his email.
While DeVeau’s motion to defeat the bill failed Wednesday, he did gain the support of the committee’s lone independent lawmaker, Rep. Jeff Evangelos, of Friendship.
“While I applaud the motives of everything that went into the effort,” Evangelos said, “I can’t get past the due process reservations that I have.”
Carpenter said the pending alternative bill is meant to be a compromise, and while it may not satisfy red flag advocates, requiring a mental health assessment before taking a person’s guns could be seen as a more effective response to the issue of gun violence.
He noted that a doctor who opposed the red flag bill had testified, “You are taking guns away from people, who are obviously in some kind of crisis and you are telling them, ‘Have a nice day.’ You are doing nothing to help them,” Carpenter said. “That really stuck with me.”
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