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Amid numerous warning signs, why wasn't Maine's 'yellow flag' law used before mass shooting?

Photos of some of the victims of the Lewiston mass shooting are seen during the OneLewiston Community Vigil in the Basilica of Saints Peter and Paul in Lewiston, Maine, on Sunday, Oct. 29, 2023. (Raquel C. Zaldívar/New England News Collaborative)
Raquel C. Zaldívar
New England News Collaborative
Photos of some of the victims of the Lewiston mass shooting are seen during the OneLewiston Community Vigil in the Basilica of Saints Peter and Paul in Lewiston, Maine, on Sunday, Oct. 29, 2023. (Raquel C. Zaldívar/New England News Collaborative)

Last week's mass shooting in Lewiston is renewing scrutiny of a 3-year-old state law that aims to keep guns away from potentially dangerous people. But it's unclear whether police considered using Maine's so-called "yellow flag" law against the suspected gunman. And critics say Maine's law could be much stronger.

Details continue to emerge about suspect Robert R. Card II's deteriorating mental health before he killed 18 people and injured thirteen. Card reportedly spent two weeks in a New York hospital after National Guard officials told police he was "behaving erratically" while training at West Point.

Saco police were alerted to threats that Card had allegedly made against his U.S. Army Reserves unit. And Card's sister-in-law told NBC News last week that family had reached out to police and the Army in recent months about his mental health.

With all of those warning signs, people are asking why Maine's new "yellow flag" law wasn't used to confiscate Card's guns before he committed the worst mass shooting in state history.

"Based upon what I know, he had foreseeable and discernable psychiatric issues a few months ago," said Michael Carpenter, a former Maine attorney general who was serving in the state Senate four years ago when the "yellow flag" law was negotiated. "I think this law was designed, absolutely designed for this kind of a situation."

The law allows police to ask a judge to force someone to temporarily give up their guns — and blocks them from buying additional firearms — if they are deemed to pose a threat to themselves or others.

As part of a deal negotiated with gun owners' rights advocates, the law also requires a medical professional to determine that the person poses a risk after they've been taken into protective custody by police.

"I don't know that that happened," said Carpenter, a Democrat who lives in Houlton. "My guess is it didn't happen. And that's the tragedy of this. The law is only going to work if the people do what they're supposed to do."

U.S. Sen. Susan Collins of Maine, a Republican, expressed similar concerns last week.

"If in fact the suspect was hospitalized for two weeks for mental illness, that should have triggered the yellow flag law and he should have been separated from his weapons," Collins said.

Maine's public safety commissioner, Michael Sauschuck, said on Saturday that investigators are still collecting records on Card's mental health, including any documentation about the incidents in New York and his two-week stay at a hospital there. New York's more sweeping red flag law has been employed thousands of times but it was unclear whether the National Guard or New York State police reported anything about Card to law enforcement officials in Maine.

Card obtained his guns lawfully, some just days before the shooting, according to federal officials. And Sauschuck pointed out that, under federal law, voluntarily checking oneself into a hospital for mental evaluation would not trigger a report to the National Instant Criminal Background Check System, known as NICS.

"So in this scenario, we have not seen to this point, I have not seen to this point, that Mr. Card was forcibly committed," Sauschuck told reporters during a press conference the day after Card's body was found in Lisbon, ending a massive manhunt. "And if that didn't happen then the NICS check, you could go into a firearms dealer who does all of their work and the background check is not going to ping that this person is prohibited."

Sagadahoc County Sheriff Joel Merry told The Associated Press on Saturday that he sent out a statewide alert on Card last month after he made veiled threats against the Saco Army unit. He says deputies also tried to locate Card at least once but didn't find him.

Saco Police Chief Jack Clements told Maine Public on Friday that his department stepped up patrols near the Army facility in response to that alert. But Card never showed up, so Clements said they had no way to invoke the yellow flag procedure.

"So if an agency comes in contact with a person that meets that criteria, that agency is the one that initiates it," Clements said. "We never came in contact with him so we would have no ability to initiate something when we had no contact with him."

Roughly 20 states, including four in New England, have more sweeping “red flag” laws that allow family members to petition courts to order someone to give up their guns. In Maine, only police can request a gun seizure from the courts. Red flag laws also typically do not require medical evaluations.

Those two differences were key to Maine’s yellow flag law winning the support of the guns owners rights groups and passing the Legislature. But Margaret Groban, a former federal prosecutor who teaches firearms law at the University of Maine School of Law, said on Friday's Maine Calling program that those two additional steps could be obstacles.

"It requires initially that someone contact law enforcement," Groban said. "And I think a lot of families with someone in mental health crisis may not want to contact law enforcement. And it also requires three separate assessments. In a red flag state, a family member can go directly to the court and seek a weapons restriction."

Police have used Maine's yellow law more than 80 times since July 2020, most often to deal with suicidal individuals. But Sauschuck indicated that he and others will review the law based on the events of the past week.

“And it is certainly something that we are always looking at," Sauschuck said. "Can we tweak it to make it better? But it has been utilized and to this point it is being effective.”

Meanwhile, some state lawmakers are already advocating for revisiting various gun control measures that failed in the Democratic-controlled Legislature last year.

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