Two years after the mass shootings in Lewiston and more than a year since efforts to pass stricter gun laws failed in the state legislature, voters across Maine approved a red flag law that will give family members the ability to ask a judge to temporarily take weapons away from a person at risk of harm.
The Associated Press called the race shortly before 10 p.m. on Tuesday. As of 4:30 p.m. Wednesday, with 98 percent of ballots counted, sixty-three percent of voters had voted “yes.”
A coalition called Safe Schools, Safe Communities led the petition to put Question 2 on the ballot through a process called a citizen initiative. The law is expected to go into effect no more than 40 days after the election, unless it is determined that the money needed to implement the bill exceeds available funds.
A red flag law will allow family and household members to directly petition a judge to temporarily take weapons away from a person they believe is at risk of harm to themselves or others. Maine will join 21 other states and the District of Columbia that have enacted such laws.
There is already an “extreme risk protection order” law in effect in Maine that allows for weapons to be temporarily removed from a potentially dangerous person, and it will remain on the books alongside the new measure.
Under the current one-of-a-kind yellow flag law, only a law enforcement officer has the power to initiate a protection order. Under a red flag law, this power is extended to family and household members.
The yellow flag law also differs in that it requires law enforcement to take a person into protective custody and get that person evaluated by a mental health practitioner, who must confirm law enforcement’s belief that the person demonstrates a “likelihood of foreseeable harm,” before it can go to a judge for final endorsement. Protective custody nor a behavioral health assessment is required with a red flag law.
It remains to be seen how exactly the two laws will work together. Michael Rocque, a sociology professor at Bates College who studies gun violence, told The Maine Monitor he hopes each law will be used for different situations — yellow flag for “decompensating mental health situations,” and red flag for more immediate threat concerns.
“But I know that the implementation will depend on people’s awareness and law enforcement’s capacity across the state,” Rocque said. “If I had to predict, I’d say that the yellow flag will start to be supplanted by the red flag law.”
The bill that created the yellow flag law was drafted by a bipartisan group of lawmakers and advocates, including Democratic governor Janet Mills, the Sportsman’s Alliance of Maine and the bill’s sponsor, Republican senator Lisa Keim.
The law was seldom used prior to the October 2023 shootings in Lewiston that left 18 people dead and more than a dozen people injured. A state commission investigating the Lewiston shootings wrote in its final report last year that there were myriad opportunities to use the yellow flag law to take weapons away from the shooter. Gun safety advocates responded by pushing for the state to adopt a red flag law.
But attempts to get a red flag law passed in the legislature failed. A bill introduced by then-speaker of the house, Portland Democrat Rachel Talbot Ross, died in committee. A bill that would have banned bump stocks was vetoed by the governor. And while a 72-hour waiting period did make it into law, it is currently on hold as it passes through the court system.
Lawmakers did pass a protective custody warrant law in response to criticism that the yellow flag law depends on an individual’s willingness to enter into protective custody.
Safe Schools, Safe Communities spokesperson Jack Sorensen previously told The Monitor that the yellow flag law was an “experiment (that) failed in Lewiston, horrifically and tragically, despite the fact that the gunman’s family knew he was dangerous and repeatedly warned law enforcement.”
A red flag law “adds a tool to the toolbox” to get dangerous weapons out of potentially violent people’s hands quickly, he added.
A hearing must be held within 14 days after a petition is filed, during which a judge will determine if the petitioner has shown a preponderance of evidence that an individual “poses a significant danger of causing physical injury to the respondent or another person by purchasing, possessing or receiving a dangerous weapon or by having or attempting to have or control a dangerous weapon.”
If a judge approves the order, the respondent must relinquish their weapons to law enforcement and is prohibited from possessing or purchasing a weapon for up to one year, at which point a judge can either extend or lift the order. Once the order is issued, law enforcement can seek a search order for any weapons.
A petitioner can also seek an “emergency extreme risk protection order,” which, if approved by a judge, would immediately remove weapons from an individual for no more than 14 days. An emergency order can be issued “ex parte” — without giving the respondent prior notice.
Supporters of a red flag law, including the Maine Gun Safety Coalition, have said that it is also an important tool for suicide prevention. People close to an individual would likely be the first to notice concerning behavior and a red flag law gives them the ability to act quickly, Sorensen said.
The vast majority of firearm deaths in Maine are suicides, according to data from the Maine Center for Disease Control and Prevention. The state has one of the highest rates of gun suicides among older adults.
“Maine voters have taken the safety of our communities into our own hands by passing common-sense, responsible gun legislation that will save lives and help keep our kids and families safe, not just from the horrors of a tragedy like Lewiston, but from the devastating impacts of everyday gun violence,” Nacole Palmer, the executive director of the Maine Gun Safety Coalition, said in a statement released Tuesday night.
She added, “We reject a false choice between gun rights and responsibilities and say that in Maine, we believe in both.”
Opponents of Question 2 said that a red flag law is merely an attempt at “eliminating due process in the law.”
David Trahan, the executive director of the Sportsman’s Alliance of Maine, said passage of a red flag law would be a “slippery slope,” putting citizens’ other Constitutional rights at risk.
He questioned the need for a red flag law, pointing to the explosion in the use of the yellow flag law since the Lewiston shootings. More than 1,000 orders have been completed since Oct. 25, 2023, compared to 80 orders that were completed in the three years between the bill’s passage and the mass shootings.
Gov. Janet Mills also came out in opposition to Question 2, writing in an op-ed published in the Portland Press Herald that a red flag law would “create a new, separate and confusing process that will undermine the effectiveness of the law and endanger public safety along with it.”
In a statement released late Tuesday night, Mills said, “I sincerely hope that this measure will strengthen public safety as proponents have argued,” and promised to work with law enforcement and the public to implement it.
Shortly after the race was called, the No on 2 campaign said in a statement, “We are glad that Maine’s yellow flag law remains intact, and we look forward to continuing to work to improve our state’s safety.”
The campaign thanked “all the Mainers who helped us stand up to the out-of-state dark money.”
Safe Schools, Safe Communities raised $580,000 in contributions and loans. Just over half of donations came from in-state sources. The campaign’s largest donor was Giffords, an organization that advocates for stricter gun laws and is named after former congresswoman Gabrielle Giffords, who was shot at an event in 2011. The organization donated $100,000.
The two opposition committees, Keep Maine Safe and Protect ME – No Red Flag, raised a combined sum of $133,000 for their campaigns.
