Extreme Risk Protection Orders (Red Flag Laws)
Solution Needed
As mass shootings continue to occur with frequency, 21 states have enacted extreme risk protection orders. Maine has a high rate of suicide by gun, and now a mass shooting in Lewiston. Maine needs to have stronger options available to those concerned for their loved ones. While a Yellow Flag law is a step forward, the Maine Legislature should enact a traditional ERPO law that gives families the option of going directly to a judge – allowing a judge do his or her job and weigh the facts immediately even if a medical evaluation cannot be obtained – while retaining the existing Yellow Flag law. Furthermore, Maine’s yellow flag law depends upon a determination of a “mental illness” when what needs to be addressed is help when an individual is suffering a mental health crisis. See Board member Margaret Groban explain the shortcomings of the Yellow Flag law on MSNBC on October 26, 2023.
Listen to Sergeant Colleen Adams of the Sanford Police Department explain in her testimony in the spring of 2024 why a yellow flag law is inadequate and far too complicated
PART 1: Law enforcement officers are not trained to tell if an individual is mentally ill.
Explanation of the issue
Having the ability to take timely action when warning signs appear is critical for saving lives, especially when firearms are involved. Suicide can be an impulsive act particularly so for teens who are suffering from mental health crises at even higher rates. In the majority of mass shootings, including the mass shooting that occurred in Lewiston in October 2023, the perpetrator has exhibited dangerous warning signs that could be addressed.
Extreme risk protection orders (ERPO’s), also known as red flag laws, are an effective means to de-escalate an emergency and save lives. They allow law enforcement officers, after a petition by loved ones and an evidentiary hearing for a court order that must meet specified standards, to temporarily remove a gun from the possession of someone with a mental health crisis who is determined by a judge to be at risk of harming themselves or others with a firearm. If such a finding is made, the gun is taken into custody by law enforcement. Within a short time thereafter a second hearing is held when additional evidence may be presented to determine if the initial order should be extended.
Red flag laws save lives. The Department of Justice has just launched the National Extreme Risk Protection Order Resource Center with up to date ERPO information. It also provides technical assistance and training. The press release can be found here.
In 2021 after a concerted push from gun violence prevention advocates, including the Maine Gun Safety Coalition, the state of Maine enacted a compromise law known as the “Yellow Flag Law.” This law is similar to extreme risk protection legislation but more difficult to implement and less effective.
Maine’s Yellow Flag law works as follows: When relatives are concerned that a family member is suffering a mental health crisis and may be a threat to the safety and well-being of themselves or others, they may call law enforcement to seek an order temporarily restricting that person’s access to firearms. The law requires that the individual be taken into temporary police custody until such time as a medical evaluation can be completed. If a medical professional determines that the person is a threat to themselves or others, they may certify that the person should not have access to firearms. A court may then order that police are allowed to remove firearms from the person’s residence, and that the person is not to possess or maintain firearms for a temporary period of time. As of 2023 the law is having an impact but is a complicated process.
This process is unduly harsh and makes it unlikely to be used by families who do not want to further traumatize their loved ones by having them taken into custody. In addition, Maine law enforcement is stretched thin-departments may not have the time or staff to respond to such requests for help. Further, medical evaluations in Maine, especially on an expedited basis, cause an unnecessary delay that may be fatal. These steps are unnecessary to provide the protection needed. A court order from a judge, after reviewing the evidence, can be issued in far less time, offering protection with the same due process safeguards and without the trauma and stigma of temporary police custody of the person, rather than the guns. Finally, Maine’s Yellow Flag law, unlike a traditional Red Flag/ERPO law, does not allow the family to directly petition the court and the law conflates “mental illness” and “mental health crisis” which in turn, may disincentivize family members and law enforcement from seeking an order.
Consequences of the current law
A red flag law may well have prevented the Lewiston shooting. In addition, in Maine 85% of gun deaths are suicides. Family members often know best if a loved one is suffering from a mental health crisis, has access to a firearm and if there is a significant risk the person will use it to harm themselves or others. Having to arrange a medical evaluation in addition to a court order takes more time than they may have to avert a tragedy and placing that loved one in custody even more traumatizing.