After the mass shootings in Texas and Ohio, like clockwork, gun control organizations pounced on their opportunity to push more gun control. This time, the focus is on more “red flag” laws, which allow family members and police to petition a court to take firearms from individuals deemed a danger to themselves or others.
In Maine, they can already do that.
In March 2018, “NBC Nightly News” ran a segment titled “Red flag laws gaining support from both sides of gun debate.” In the story, a Maine woman, Darlene Patrick, was interviewed. She lamented about her son and his struggles with a lifelong mental health condition and how she wished Maine had a law that could temporarily take firearms from people like her son when they become violent.
Well, we can do that here now. A new law, L.D. 1811, is designed to address just that scenario.
First, a little history: Maine has had a protective custody statute for individuals in mental health crisis since the mid-1970s.
If a police officer “has probable cause to believe that a person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons,” the officer can detain that person for 18 hours.
During the 18 hours, under the law, the officer “shall deliver the person immediately for examination by a medical practitioner.” If upon examination (and judicial review) it appears that person remains a danger to themselves or others, he may be involuntarily hospitalized.
The process by which someone is involuntarily hospitalized can be initiated by anyone, including health care providers and law enforcement officers, when the applicant believes the person has a mental illness and poses a likelihood of serious harm because of the mental illness.
At this juncture in the patient’s mental health hospital journey, several things can happen:
• If the crisis is temporary, like an adverse reaction to prescription drugs, and that person recovers quickly, the person can be released without further action.
• The person in crisis may be treated for a lengthier period of time and then released.
• Proceedings may be initiated to commit them to indefinite, involuntary treatment in a mental institution. Commitment involves a due process hearing. Persons who are committed after a hearing may no longer possess firearms.
• Finally, the court, as a condition of release, may order an individual with a lengthy history of mental health problems into the court-ordered community outpatient mental health treatment program.
The process just described has existed for almost five decades and was recently updated when the Legislature, with almost unanimous bipartisan support, passed L.D. 1811. Though the bill reinforced gaps in our statewide mental health safety net, it made no changes to the old protective custody statute. The new bill also strengthened due process protections for individuals in state custody.
During the debate on L.D. 1811, we learned that mental health services are difficult to access during the day, and nonexistent north of Portland after normal business hours. The unfortunate reality is, in many rural parts of the state, patients entering the protective custody system are being released without treatment. Beds and services are almost unavailable in the region. Can you imagine the frustration and anguish police officers and doctors endure, knowing they are releasing patients who are a danger to themselves or others?
L.D. 1811 fortifies the existing system by creating a new avenue for mental health patients who appear dangerous, but are released from custody simply because the services are not there.
This is how the new L.D. 1811 option works:
First, using existing law, an officer contacts and evaluates a potential patient. The officer, following the independent endorsement of a medical practitioner and a judge, can remove dangerous weapons from an apparently disturbed person for up to 14 days. At that time, the person gets a full hearing. During that time frame, the person must turn over “dangerous weapons.”
Under this new process, indigent patients have the right to appointed counsel, just like in the criminal arena. At the 14-day hearing, if the state wants the “no weapons” order to remain in place, it must prove by clear and convincing evidence that the patient remains a danger to themselves or others.
If the state proves its case, a patient may lose his weapons for up to a year. During that period, if the patient’s condition improves, he can petition the court to get the weapons back immediately. After a year, the order expires automatically and all rights and property are restored.
In addition to these new changes, the state is directed to explore new telemedicine treatment options to connect patients with available mental health services.
The law is now being looked at nationally as a much better alternative to the more divisive “red flag” bills pushed by gun control organizations. More importantly, Maine has new, broad protections for mental health patients and the public while preserving individual liberties.
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