SANFORD — In January, Sanford police took two loaded AR-15 assault rifles away from an “increasingly paranoid” 38-year-old man who believed there were “listening devices in light bulbs, and cameras in (his) house watching him,” according to a state report.

It’s one of seven times Maine’s yellow flag law has been activated by Sanford’s police, one of 43 law enforcement agencies that have used the law a total of 102 times since it went into effect in 2020.

But more than two-thirds of Maine’s police agencies – 101 departments – hadn’t yet used the yellow flag law as of Nov. 20, including large police forces such as Portland and Bangor.

Portland police Chief Mark Dubois said the law is “cumbersome,” and it’s better to try other means to remove guns, such as attempting to persuade people to voluntarily give up their guns while undergoing a mental health crisis. Critics also describe Maine’s yellow flag law as weak, ineffective and full of loopholes.

Sanford police agree the yellow flag law is not simple. It requires 6 to 7 hours of at least one police officer’s time to work through a detailed three-page checklist of legally required steps, knowing all the while that the process could be derailed at various points along the way or ultimately rejected by a judge. 

But it is still a worthwhile tool to temporarily remove guns from people who may be on the cusp of using them, often in suicide attempts, leaders of the department say.

“It’s a net to try to catch some of these cases, where there wasn’t a safety net before,” said Maj. Matthew Gagne, who heads up the Sanford force’s supportive services.

The yellow flag law is under intense scrutiny because it was never activated to take weapons away from Robert Card, who shot and killed 18 people at two locations in Lewiston on Oct. 25 before he died from a self-inflicted gunshot wound. Card had made threats of carrying out a mass shooting as his mental health declined, and was in a psychiatric facility for two weeks in New York state this summer. Neither Maine’s yellow flag law nor New York’s stronger red flag law was invoked in Card’s case.

Gun reform advocates and some Maine lawmakers are lobbying for the state to adopt a red flag law – similar to what’s been approved in 21 other states. Maine’s Legislature passed such a law in 2018 but it was vetoed by Gov. Paul LePage, who said this week he stands by the decision. Maine adopted a compromise version, known as a yellow flag law, after he left office.

Maine is the only state with a yellow flag law, which requires police to first take subjects into protective custody and have them evaluated by a mental health professional to confirm they pose a threat to themselves or others.

A total of 28 states do not have red or yellow flag laws allowing police to take away someone’s weapons temporarily.

Maine’s yellow flag law has been used at least 21 times since the Oct. 25 shootings, about 20% of the total times it’s been activated since 2020. Some of the recent actions involve people who cited the Lewiston shootings, or the name of the shooter, as they made threats to harm themselves or others.

Some police departments, including Sanford, Lewiston, Westbrook, Brunswick and Maine State Police, have used the law multiple times since its inception, while others, including Portland and Bangor, have not used the yellow flag law at all. Maine has 144 state and local law enforcement agencies, according to the U.S. Department of Justice, and 43 of them have invoked Maine’s yellow flag law. While Portland police consider it too cumbersome, the state’s smallest departments may not have the staffing resources to go through the process, officials said.

“The process needs to be simpler for police,” said Dubois, who believes a red flag law would be better for Maine. The Portland chief said he worked with the red flag law in Massachusetts – he previously worked in Braintree and Maynard – and found the red flag law to be relatively effective and efficient.

Dubois said that instead of using the yellow flag law, Portland police officers try to persuade people who are undergoing a mental health crisis and have access to guns to agree to surrender their weapons. He said that works in most cases.

Brad Nadeau, Portland police spokesman, said in response to a follow-up question from the Portland Press Herald/Maine Sunday Telegram that when people do not voluntarily surrender weapons, Portland police would secure a search warrant and “likely seize their weapons.” He said he did not know how many times the department has used search warrants in that way.

Voluntarily removing weapons or using a search warrant to confiscate them doesn’t prevent someone from buying another gun. When the yellow flag law is used, the subject would be flagged as a “prohibited person,” and licensed gun retailers would be forbidden from selling the person guns while the yellow flag order is in effect.

Also, unlike the yellow flag law, the ability to use search warrants is limited to cases in which a crime has been or is being committed.

Sgt. Colleen Adams, who heads up Sanford police’s mental health unit, said search warrants are used in a narrower set of circumstances compared with the yellow flag law. The search warrant must be “very specific in what you are seizing and what applicable law is being violated.”

“We cannot get a search warrant to seize an item without a crime being committed, or that we have enough evidence that a crime is being committed that we can convince a judge to violate your rights to search your house,” Adams said. “Being mentally ill and having weapons is not a crime in itself.”

PROTECTIVE CUSTODY

Sanford officers said using the yellow flag law typically takes 6 to 7 hours of police time for each case, and could involve more than one officer. It requires taking someone into protective custody, often followed by a trip to a hospital emergency department, a mental health evaluation and ultimately a sign-off by a judge.

Adams said police need to be thorough because the law requires someone to be taken into protective custody – which temporarily takes away their rights by detaining them, usually in a hospital.

She said when police arrive on a scene, they have to assess how likely it is the person would become violent to themselves or others – and this has to be done before the required mental health evaluation.

“You need probable cause to put someone in protective custody, just like you would need probable cause to arrest someone,” Adams said. “It’s not a decision we hastily make.”

There’s also a time limit: Protective custody lasts a maximum of 18 hours, according to Maine law.

Protective custody is the first of many steps, and the police officers must coordinate the entire yellow flag process each time a person is taken into protective custody.

“Because they are in our custody, for every step along the way, we are giving paperwork out and then getting it back,” Adams said.

Typically, police arrange for a telehealth mental health evaluation while they have the person in custody in a hospital emergency department. Because ERs are often overflowing with people, and since Maine lacks crisis beds for people in mental health crisis, it’s often not an ideal place for a mental health evaluation, but they make do, Adams said.

“We’ll say, ‘Here you go, talk to this person on the phone,’ and sometimes they will be in an atrium gurney or in the middle of a hallway with a bunch of other people around,” Adams said.

Most of the Sanford cases involved threats of suicide, according to a summary of the cases by the Office of the Maine Attorney General.

MENTAL HEALTH EVALUATION

The yellow flag law was only used 27 times from July 2020 to October 2022, when the state entered into a contract with Spurwink to be the dedicated mental health agency used to conduct mental health assessments remotely. Since then, the yellow flag law has been used more often as police have a reliable agency to call for the evaluations.

Ben Strick, vice president of adult behavioral health for Spurwink, said five nurse practitioners are available 24/7 to answer these calls and conduct mental health evaluations to determine if someone is in a mental state to harm themselves or others. The evaluations – which typically take 15-20 minutes – can be done via zoom meeting, FaceTime interview or even a phone call.

“It’s not a diagnosis,” Strick said. “It’s more a series of behaviors or symptoms that determine a likelihood of serious harm. It can include people suffering from the effects of substances.”

He said from October 2022 through mid-November, Spurwink conducted 61 mental health evaluations, and 60 times determined it was appropriate to invoke the yellow flag law.

“Each one is potentially a prevented suicide, a prevented homicide,” Strick said.

In two recent cases where guns were removed, according to the Maine Attorney General’s summary report, a 35-year-old man in Newport “threatened suicide while holding a gun in his mouth; superficially stabbed himself in the chest” and a 61-year-old man in Oxford County became paranoid, “shooting at imaginary persons near his home and homes of others; attempted to ignite can of gasoline in presence of officer.”

JUDGE SIGN-OFF

The final step before the order is put in place is a sign-off from a judge. That is usually done by phone, but it also may require going to court. Adams said there have been times when she’s had to drive to a judge’s house at 3 a.m. to get the final approval. Sometimes, it can take hours to go before the judge.

Adams said if the hospital releases the patient before they can complete all the steps, which might happen when a patient is considered to be stabilized, the process halts and police would have to start over from the beginning.

“We’ve had cases where the patient is discharged from the hospital while we are in the middle of trying to get the order signed,” Adams said. “If that happens the process just ends because they are no longer in protective custody. We have no recourse for that.”

If all the steps are completed, the order is in place for 14 days, and within that time there’s a court hearing to determine if weapons need to be removed for a longer period. When the order is in effect, the person is prohibited from purchasing guns. The name of the prohibited person is entered into a database and comes up in background checks done by licensed gun retailers, although there are still loopholes, such as private sales or gun shows where background checks may not be done.

Gagne, the Sanford police major, said for small rural departments, the resources it would take to invoke the yellow flag law are daunting.

“If you’re a small department, and you have a yellow flag case, and you have to do one of these and you’ve never done one before? It’s a hill to climb,” Gagne said.

Phippsburg police Chief John Skroski said he tried to use the yellow flag law before the Spurwink telehealth contract went into effect, and couldn’t invoke the law because a hospital refused to sign off. Skroski declined to name the hospital.

“I was very frustrated,” Skroski said. But Skroski said he would try again – and hopefully have a better outcome with telehealth assessments available now – if it was needed to protect the public. He said it is time intensive for a small department, and because they only have two full-time and two part-time officers, using the yellow flag law would require asking other agencies to cover their emergency calls while working on the case.

The state has provided training sessions, including a mandatory one when the law went into effect, and several voluntary trainings. A training session conducted remotely by Spurwink earlier this month – in the wake of the Lewiston shootings – attracted about 200 law enforcement officers.

RED FLAG VS. YELLOW FLAG

Lindsay Nichols, policy director for Giffords Law Center, a nonprofit organization that advocates for gun safety laws, said Maine’s yellow flag law is deficient when compared with red flag laws. The red flag laws, called extreme risk protection orders, are modeled after domestic violence restraining orders – a much more streamlined process than Maine’s yellow flag law.

A red flag order has to be signed by a judge, but police do not need to place a person in protective custody, and a family member can directly petition the court rather than having to go through law enforcement, although police can also be involved. Weapons are surrendered to police. No mental health evaluation is needed to use a red flag law.

Nichols said the laws are “narrowly tailored” to prevent gun deaths among those who are at the “highest risk to be violent in the near future.”

Maine and New Hampshire are the only states in New England that do not have red flag laws.

Research indicates that the laws can be effective in preventing gun deaths and mass shootings, including a December 2022 study by Johns Hopkins University that showed that six states used red flag laws more than 600 times to take weapons from people who had made threats against three or more others.

Dubois, the Portland chief who previously worked in Massachusetts, said the red flag law in Massachusetts was “a stronger mechanism and far more efficient” in temporarily removing weapons than Maine’s yellow flag law.

Skroski, the Phippsburg chief, said he’s unsure about a red flag law because of people’s right to bear arms, but he believes the Maine law can be improved.

“There has to be some sort of tools that can be more user-friendly for law enforcement, utilized in a quick manner, and that can still protect people’s rights,” he said.

Copy the Story Link

Comments are not available on this story.

« Previous

South Portland police looking for two men after armed home invasion

Next »

Caretaker charged in Denmark double homicide