Maine has a 'yellow flag' gun law. Some say it's not enough to stop shootings

Barely four years before a gunman's deadly rampage in Maine, a state that is staunchly protective of gun rights, the governor signed a law aimed at preventing a mass shooting like the one Wednesday night that claimed at least 18 lives.

It was called a “yellow flag” law, different from the “red flag” laws cropping up in other states to seize weapons from gun owners viewed as a threat. In a sign of the pro-Second Amendment mindset in Maine, a gun-rights group helped write the law, and critics said that, while it was a first step toward stronger gun safety measures, the state could save more lives by doing more — like passing a red flag law.

The yellow flag law and permissive gun measures in Maine are coming under greater scrutiny in the aftermath of a mass shooting on Wednesday. Law enforcement believe the attacks were carried out by a man who was committed to a mental health facility for two weeks this past summer while training with an Army Reserve regiment.

It was not clear whether anyone had used the yellow flag law in the suspect’s case, but gun-control advocates seized on the tragedy Thursday to blame the death of 18 people in the shooting as a product of “weak gun laws.”

Vice President Kamala Harris said in a statement that gun violence is the leading cause of death for children in the U.S. and called on Congress to pass new gun control laws.

"It is a false choice to suggest we must choose between either upholding the Second Amendment or passing reasonable gun safety laws to save lives,” she said.

In recent years, anti-gun violence groups in Maine have repeatedly failed in pushing for stronger laws, even with Democratic control of the Legislature and governor's office.

On Thursday, they vowed to try again following a mass shooting that Cam Shannon, board chair of the Maine Gun Safety Coalition, said was the result of “weak gun laws."

At a minimum, the coalition wants the state to ban assault weapons to prevent more mass shootings, Shannon said.

Elected officials must "stop bowing to the gun lobby and look squarely at the face of what has happened in Maine’s second largest city,” Shannon said.

"It is a false choice to suggest we must choose between either upholding the Second Amendment or passing reasonable gun safety laws to save lives.”

Kamala Harris

Maine is one of about 20 states that allow permitless carry — having a concealed weapon in public without a permit — and the state has a longstanding culture of gun ownership that is tied to its traditions of hunting and sport shooting.

Gun rights advocates have for years held up Maine as an example of a place with unrestrictive gun laws and little violent crime.

Wednesday night's mass shooting is especially difficult to stomach considering the recent failures to tighten Maine’s gun laws, both on statewide ballots and in the statehouse, said Lynn Ellis of the Maine Gun Safety Coalition.

“It’s infuriating,” Ellis said.

Those failures include a statewide referendum in 2016 in which voters defeated a proposal to expand background checks on gun purchases. More recently, lawmakers rejected proposals earlier this year that would have required background checks for private gun sales and created a 72-hour waiting period for gun purchases.

Democratic Gov. Janet Mills has also voiced skepticism of some gun control proposals in recent years.

A proposals for a so-called red flag law that more than 20 states have adopted also failed in 2019 in favor of the yellow flag law that backers said would stop suicides and protect both the public and the constitutional rights of gun owners.

The yellow flag law had the support of the Sportsman’s Alliance of Maine, which was instrumental in writing it and viewed other states' red flag laws as unconstitutional. Some also saw the suicide rate as a far bigger concern than the sort of mass shootings spreading across other states.

“Maine has a suicide problem that dwarfs homicide as a safety concern for us in the state,” one Sportsman’s Alliance member, John Chapman, told lawmakers.

Under it, law enforcement could detain someone they suspected of posing a threat to themselves or others.

The law, however, differs from red flag laws in that it requires police first to get a medical practitioner to evaluate the person and find them to be a threat before police can petition a judge to order the person's firearms to be seized.

It had pitfalls.

Police sometimes had difficulty finding a doctor to do an evaluation quickly enough and hospitals had concerns about the safety of their personnel who were conducting the evaluations. Last year, the state sought to address that through a telehealth contract to conduct evaluations remotely.

Still, gun control advocates had criticized the law as ham-handed and unlikely to be used by families who don't want to traumatize a loved one by having them taken into custody. It is also part of an overall weak state approach to gun violence, they say.

It was not clear, however, whether the yellow flag law should have stopped the suspect in the Lewiston killings or where the suspect got the gun he used.

It's also not clear whether the suspect's commitment to a mental health facility over the summer triggered a federal requirement against possessing guns.

“It is far too easy for people with dangerous histories to get guns.”

Lindsay Nichols

Since the 1960s, federal law and most states have prohibited people from possessing guns if they have been formally committed to a mental health facility, said Lindsay Nichols, policy director at the Giffords Law Center to Prevent Gun Violence said Thursday.

Not everyone who stays at a facility is considered formally committed, though. Formal commitment is a court process that’s usually required to keep someone at a facility longer than about 14 days, she said.

A judge typically must approve a formal commitment, which is then sent to the background-check system required for gun purchases at licensed firearm dealers. If someone tries to buy a gun after being committed to a facility, it appears on a background check and the gun store won’t sell the weapon.

But there are errors in that system that allow for loopholes. In some cases, the formal commitment process doesn’t happen. Even if it is approved, courts don’t always submit the correct information quickly enough to the national background check system.

And even if a hold is in the system, background checks aren’t required at unlicensed or private sellers in many states.

“It is far too easy for people with dangerous histories to get guns,” Nichols said. “Policymakers need tighter restrictions so guns can be kept away from people who are dangerous.”

Overall, however, people with mental illnesses are not at a higher risk of being violent than those without a diagnosis, she said.

On Thursday morning, gun control advocates in the state began organizing and the Maine Legislature’s gun safety caucus met. Democratic state Rep. Kristen Cloutier, a former Lewiston mayor, called the shootings “surreal and heartbreaking.”

“This has only strengthened my own resolve to do whatever I can to help prevent similar tragedies like this from happening again in other communities,” Cloutier said. "As a state, we must do more to address gun violence and keep ourselves, our families, our friends and our neighbors safe.”



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