Red flag bill splits Maine Democrats, gets narrow approval to move forward to full Legislature

After a second public hearing Tuesday morning, Maine lawmakers narrowly recommended moving forward with a last-minute bill that would give family members a tool for removing dangerous weapons from their loved ones. 

The Judiciary Committee voted 6-5 with three members absent to recommend the bill be passed by the entire Legislature. The vote divided Democrats and came late Tuesday night after the committee’s meeting was prolonged by a marathon session in the House of Representatives.

Brought forward by House Speaker Rachel Talbot Ross, LD 2283 would allow family, a household member or law enforcement to file a petition to restrict a person from purchasing or possessing firearms if they are suspected of posing a “significant danger of causing severe harm” to themself or others. The process is often described as an Extreme Risk Protection Order, also commonly known as a “red flag law.”

After the first public hearing last week, Talbot Ross proposed amendments to the bill, many of which the committee decided to move forward with. Some of the changes were technical or simplifications of language that made sure the bill was consistent with existing laws. For example, rather than coming up with a new remedy, the bill relies on existing statute for perjury crimes in the case of any false information brought forward in a petition or affidavit. 

Talbot Ross and other bill proponents see the red flag process as a complement to Maine’s current gun safety laws, including the yellow flag law that is the state’s existing mechanism to temporarily confiscate weapons. With the yellow flag law, law enforcement has to take a person into protective custody, which requires probable cause that a person is mentally ill and likely to cause harm. The mental health community has pushed back against linking mental illness and violence, saying it perpetuates stigma and isn’t an accurate indicator.

Legislature to consider last-ditch red flag law five months after Maine’s deadliest mass shooting

Before she voted in favor of the red flag proposal, Sen. Anne Carney (D-Cumberland) said she thinks the bill would allow family members who are dealing with a crisis to “take the basic step of protecting their loved one.” She also saw the legislation as a potential means for avoiding crisis situations that often end in law enforcement having to use deadly force, drawing on her experience reading multiple reports of such situations. 

“I hope that if I ever have a family member or loved one in crisis that I have a mechanism that I can reach out and try to help them without being the inadvertent instigator of an armed conflict that results in my loved one dying,” she said.

While most Democrats on the committee voted in favor, two did not join the rest of their party members on the report. Sen. Donna Bailey (D-York) backed a separate version that stipulated the measure could only be invoked in cases where existing laws did not apply. Rep. Adam Lee (D-Auburn) joined Republicans in opposing the bill. 

Before the vote, Lee said that while he isn’t opposed to an extreme risk protection order law that doesn’t tie directly to a person’s mental health status, he didn’t feel like he had enough time to work through how to do it effectively given the timing so close to the end of the session.

While Lee said he thinks connecting the order to mental illness under the yellow flag law is an “imperfect proxy” for dangerousness and praised many of the committee’s amendments, he said it still felt short of what he wanted to see for due process. 

“There’s a good amount of daylight between the constitutional minimum for due process and what I think good policy is,” he said. 

Rep. Jennifer Poirier (R-Skowhegan) voted to advance another amended version of the bill that struck most of the language and instead turned it into a ban on red flag laws. No other Republicans on the committee who were present for Tuesday’s vote joined her and instead voted to oppose the initial bill. 

Poirier said multiple times that she believes the state’s yellow flag law works, making the reform unnecessary. Bailey said she agrees the yellow flag works when law enforcement invokes it, but she is concerned about those situations where the criteria is met but law enforcement are unwilling or unable to invoke it and family members are left with no recourse— which appears to be the case with Robert Card, the Lewiston mass shooter.  

Although some members of the public and even select committee members said they believe the red flag bill and other reforms brought forward this session have used the Oct. 25 shooting to advance a political agenda, Rep. Matthew Beck (D-South Portland) said gun safety effor began long before that dark day. 

Voting in support of the bill, Beck said people in his district have been asking lawmakers to do more to make them feel safe well before the Lewiston shooting. 

“That drum beat has only increased,” he said. 

Definitions and dangerous weapons

Other amendments included in the version supported by the majority of members included expanding the bill from just firearms to “dangerous weapons.” Bailey said she liked using the definition for dangerous weapon in the yellow flag law to create more consistency. 

At the public hearings, critics said they felt there was a lack of due process in the original draft of the bill and that the bar was too low for stripping someone of their Second Amendment right. 

Per the amendment from Talbot Ross, the committee decided to raise the burden of proof that must be provided to show that someone poses a risk of danger. Originally, the bill said there must be a “preponderance” of evidence. The committee swapped that for “clear and convincing” evidence, which is a higher standard to meet.

The committee also spent time discussing who should be included in “family or household members,” but said it will further refine that. While the sponsor’s amendment took language from another area of existing law, some members of the committee wanted to tweak that to include adult children and siblings and considered including dating partners and people formerly in close proximity, like a former spouse or roommate. 

In line with feedback from the Judicial Branch, the changes also remove language referring to 24/7 access to judicial officers for petitions. The amendment also stipulates that relinquished firearms will only go to law enforcement, not a federal firearms licensee. 

The original draft of the bill wouldn’t hold law enforcement liable for damage that may occur to weapons they were storing, but that was removed.