Four legal misconceptions surrounding the red flag law debate in Maine

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The Maine Legislature is currently considering multiple pieces of legislation that either replace Maine’s existing “yellow flag” law or significantly alter it. With the debate around the tragedy in Lewiston and how the state should respond, there have been widespread errors on what our yellow flag law actually does, and what LD 2283 – a proposed “red flag” law sponsored by House Speaker Rachel Talbot Ross – would do. It’s crucial to understand what these laws do and how they are different. Thus, it’s essential to correct the record on some of the most common misunderstandings in this ongoing debate.

  1. “Maine’s Yellow Flag Law failed to stop the Lewiston shooting.”

The independent commission Gov. Janet Mills created to investigate the Lewiston tragedy unanimously found that, under Maine’s yellow flag law, the Sagadahoc County Sheriff’s Office had probable cause to take Robert Card into protective custody and begin the process of removing his firearms. It’s important to note that if law enforcement fails to enforce the law, it is certainly not a failing of the law itself but rather the humans enforcing it. This highlights the need for accountability. If any law needs to be changed to prevent a tragedy like that which occurred in Lewiston, it would be the addition of laws making law enforcement liable for not initiating these orders when they should. Nonetheless, the yellow flag law itself would have effectively stopped the attack if it had been properly initiated.

  1. “Maine’s yellow flag law requires a diagnosis of mental illness or mental health examination.”

Especially during the April 5 public hearing before the Judiciary Committee on LD 2283, an oft-repeated falsehood was that a diagnosis or finding of mental illness is required to initiate the yellow flag law proceeding, but that simply isn’t true. The yellow flag law’s process begins with a protective order where the police must have probable cause that the allegedly dangerous person both poses a likelihood of serious harm and may be mentally ill. After that, a mental health professional must agree that the person poses a risk of harm, but they are not required to diagnose the person with a mental illness.

Probable cause of a mental illness is completely different from a diagnosis and is a much easier standard to meet. While that section of Maine law does not clarify the probable cause of mental illness, the Supreme Court in Illinois v. Gates interpreted the term as a practical, nontechnical standard calling upon the facts and practical considerations that would make a reasonable and prudent person act.

Probable cause can, therefore, mean evidence that leads a reasonable law enforcement officer to believe that the person may be mentally ill, but does not mean that it must be absolute proof of mental illness. If someone has had a mental breakdown, threatened mass violence, or done other behavior a reasonable person would interpret as a sign of mental illness, then a law enforcement officer is able to take them into protective custody if they also appear to be at significant risk of foreseeable harm.

One section that has led to this confusion is Maine Revised Statutes 34-B §3862.1.B, which requires a medical practitioner to examine someone in protective custody. However, this section references back to the yellow flag law, 34-B §3862-A.2.B, which states that the medical practitioner’s assessment shall only be on whether that person “presents a likelihood of foreseeable harm.” Thus, the medical practitioner’s role is only to provide professional psychological confirmation that the relevant person is dangerous to themselves or others.

  1. “Maine’s yellow flag law always places the burden of proof on the state.”

Maine’s yellow flag law usually places the burden of proof on the district attorney to prove the restricted person poses a likelihood of foreseeable harm, but not so when the restricted person requests that their extended yellow flag order be lifted early. Under Maine Revised Statutes 34-B §3862-A.6.D.4, the restricted person has to prove they no longer pose a likelihood of foreseeable harm by the clear and convincing standard of evidence, and the burden of proof is specifically stated to be on them. It is important to note that this situation would only occur after the initial order was granted and the district attorney successfully requested, against the same burden of evidence, that the person should have an extended order placed upon them. Nonetheless, it is still wrong to say the burden of proof is never on the restricted person.

  1. “The red flag law outlined in LD 2283 violates the Second Amendment.”

LD 2283 shares many traits with other states’ red flag laws. Some states have red flag laws that allow family members to directly file with the court, some have laws that use only a preponderance of the evidence standard, and other states enforce laws that have one-sided “per se” hearings. If any of these provisions violated the Second Amendment, then the federal courts in those states would have already stricken those laws, but they haven’t. Legal challenges to these laws have been made, but at least in Hope v. State, Redington v. State, and Davis v. Gilchrist County Sheriff’s Office, the challenges have been unsuccessful.

If the proposed fed flag law violates a gun rights guarantee, it is much more likely to be the protection in Maine’s Constitution. The relevant provision reads, “Every citizen has a right to keep and bear arms and this right shall never be questioned.” This language is obviously far more expansive than the language of the U.S. Constitution, as a court reviewing a red flag law wouldn’t need to determine whether the law infringes on the right to bear arms, but rather whether it simply questions it. 

Based on the specifics of LD 2283, it could very well violate federal guarantees of due process, the right to cross-examine, or even the right to secure property, especially if they are connected to the state arms right. However, it is very unlikely that a federal court would find that a red flag law here violates the Second Amendment of the U.S. Constitution when they have already ruled that other states’ red flag laws do not.