Divided committee supports red flag bill, but prospects uncertain

AUGUSTA — A divided legislative committee has endorsed a proposed red flag law that would give families a path to restrict firearms access for people who pose a risk to themselves or others without needing a mental health evaluation.

But the narrow margin means the outcome is far from certain when the bill reaches the full Senate and House of Representatives in the coming days.

The Judiciary Committee voted 6-5 with three members absent in favor of an amended version of L.D. 2283, which was introduced by House Speaker Rachel Talbot Ross, D-Portland, late in the legislative session in response to calls for stricter gun laws after the Lewiston mass shooting in October.

“There are a few things I really think are important about the bill moving forward,” said Rep. Amy Kuhn, D-Falmouth, who voted in support of the bill. “One is that having this extra mechanism allows us to detangle people in crisis from people with mental illness, which I think destigmatizes those conditions and puts us more on an evidence-based footing.”

Kuhn said the bill also will offer families another tool for responding to loved ones in crisis.

The bill would create a new process in addition to Maine’s yellow flag law that allows law enforcement to get a court order restricting a person’s access to weapons, but only after they are taken into protective custody and a mental health evaluation is conducted.

The red flag proposal would allow a family or household member to petition a court for those restrictions. They would have to present an affidavit with evidence supporting their request, but a formal mental health evaluation is not required.

The amended version approved by the committee incorporates a number of changes to the original bill, including a revised definition of family and household members who could apply for the “crisis intervention order” to limit someone’s access to firearms. It also incorporates a definition for dangerous weapons to allow a court to also put limitations on access to other weapons, not just firearms.

It increases the standard of evidence called for to issue the order to a more rigorous “clear and convincing” standard rather than a “preponderance of the evidence,” and requires forfeited firearms to be turned over only to law enforcement, rather than law enforcement or a federally licensed firearms dealer, among other changes.

COMMITTEE STRUGGLES WITH CONSENSUS

The committee’s final vote on the bill came around 10:30 p.m. – more than eight hours after the scheduled start of a work session on the proposal that was frequently interrupted by committee members needing to leave to vote on bills in the House as the Legislature scrambles to meet an April 17 adjournment date.

Around 9 p.m. the committee voted 6-6 on the version of the bill that ultimately ended up passing, but that tie meant the vote failed. When they voted again about an hour later, an additional committee member was absent and the bill passed. The committee struggled to reach consensus on the bill, with two Democrats breaking from their party to vote against the amended version.

Rep. Adam Lee, D-Auburn, said he supports some form of an extreme risk protection order or red flag law but couldn’t get behind the version presented Tuesday for various reasons.

“I have very little doubt this bill meets the constitutional requirements for due process, but for me there’s a good amount of daylight between the constitutional minimum for due process and what I think good policy is,” Lee said. “I really appreciate the work done to improve the bill when it comes to process. … But I don’t know if it fully gets all my due process concerns resolved.”

Lee favors the wording of a similar statute in Vermont law, and has questions about how the Maine proposal’s definition of family or household members compares to definitions in protection from abuse laws.

“I think some thought needs to be put into having the (protection from abuse) process, the yellow flag process and the red flag process not as overlapping mechanisms, but a consistent three-part series where the red flag would fill a specific discrete gap that’s not covered in those other statutes,” Lee said.

Sen. Donna Bailey, D-Saco, also voted against the version supported by the majority in favor of a version that included an additional amendment requiring law enforcement to prioritize probable cause determinations under the existing yellow flag law.

Republicans on the committee, meanwhile, voiced concerns about due process and whether a red flag law is needed when use of the yellow flag has increased in the months following the Lewiston shooting.

Sen. Eric Brakey, R-Auburn, said the amended version of the bill approved Tuesday addressed some of his concerns, but he remains worried about the criteria for the affidavit, pointing to language about “reasonable fear” that he said could be open to interpretation and about what would constitute the person in question threatening harm to themselves.

“Without a mental health professional kind of advising on this, how does a judge determine what is a serious threat of suicide versus someone throwing out something casual?” he asked.

VOTE FOLLOWED ADDITIONAL TESTIMONY

Earlier Tuesday, the committee heard additional testimony on the bill because last week’s winter storm kept some people from coming to a public hearing Friday. Most who spoke Tuesday argued in support of the bill, echoing comments that were made Friday about a red flag law providing a needed alternative path for families to restrict access to firearms.

“This is important because (mental health) evaluations can be difficult and time-consuming to get and because only a small percentage of violent acts can be attributed to individuals with serious mental illness,” said David Jolly, of Penobscot, who said he previously worked in public health for 35 years.

Jolly said the bill respects the rights of responsible gun owners. “Having said that, though, no individual rights are absolute,” he said. “They always have to be balanced against concerns for the rights of others and the well-being of the community. We have the right to drive, but not recklessly and not at 100 miles per hour.”

Rep. Vicki Doudera, D-Camden, read to the committee testimony of a survivor of the Lewiston shooting, Jennifer Zanca, who was shot in the arm at Schemengees Bar & Grille. “The shooter, Robert Card, had a legal right to buy and bear arms,” Zanca said. “He purchased his guns legally because that was his constitutional right. What about my right to dine in a restaurant safely without being maimed, or worse. … I believe red flag laws would have made a difference.”

The committee also heard testimony from Jill Walker, a licensed clinical social worker and the sister of Jason Walker, who died in the shooting. Walker told the committee that she is adamantly opposed to a red flag law and said the existing yellow flag law could have prevented the Lewiston shooting.

“As a mental health provider, I have witnessed the gaps in communication and responses between law enforcement, mental health and crisis services,” Walker said. “Homicide and suicide are tragedies that we all sadly encounter. However, firearms are not the culprit.”

Walker, who works in private practice as a social worker, said a mental health evaluation is a necessary step and that in her experience she has not encountered someone in crisis who is not mentally ill. “They meet some diagnostic criteria, yes,” she said in response to a committee member’s question.

She said more education and training for mental health providers and law enforcement around the current law would be helpful.