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Maine’s yellow flag law attempts to balance the public safety imperative of removing firearms from people who pose a risk to themselves or others with the constitutional rights of gun owners. Passed in 2019, it was a needed and good-faith effort to address a complicated issue.
Time and recent events have proven it should be further strengthened, however. Gov. Janet Mills and the Maine Legislature took needed steps to bolster and clarify that yellow flag law this past legislative session, but more work remains.
After failed efforts in the Legislature to enact a red flag law here, a new citizen’s initiative campaign is underway to attempt to strengthen Maine’s yellow flag law through the referendum process. We support the aim of this effort, but worry that the referendum process will not provide the nuance, sustained public input and debate needed to thread the needle on such a complex issue. As frustrating as incremental progress in the Legislature might be, some issues are just not well suited for a yes or no question on the ballot.
The Lewiston shooting nearly a year ago has thrust Maine’s yellow law further into the spotlight, and necessarily so. The state commission tasked with investigating that horrific mass shooting has said that local law enforcement had sufficient grounds to initiate the yellow flag process for shooter Robert Card II, but failed to do so. The commission also noted that some law enforcement officials have described the yellow flag law as “cumbersome, inefficient, and unduly restrictive.” Police in Maine have increased their use of the yellow flag law since the Lewiston shooting.
From our perspective, two conclusions follow from this information. First, increased clarity and efficiency around the law are paramount. Leaders in Augusta made strides with their recent update, but left a critical piece unaddressed. That brings us to our second conclusion: If law enforcement officials sometimes fail to initiate this process despite sufficient grounds to do so, then they should not be the sole avenue for that initiation. In other states with so-called red flag laws, family members have the ability to petition the courts directly to remove firearms from someone in crisis. Maine needs to expand its law to allow the same.
Critically, though not without complication, Maine can do this without scrapping its entire yellow flag framework. We continue to believe that lawmakers and the governor can find a way to better empower family members without tossing aside the due process protections currently in place. If it is constitutional for law enforcement officials to take these cases before a judge, there must be a way to add to that existing process to allow family members to do the same.
We don’t particularly care if something is considered to be a “yellow flag” or “red flag” law. What we care about is family members being empowered to help stop tragedies (with the continued review of a judge and the due process protections that come with it) rather than relying on officials who may or may not have the same urgency and information at hand.
We understand and appreciate the concerns raised by some when it comes to due process, and the ongoing constitutional challenges to some other red flag laws around the country. However, just as Maine has already worked to balance both the public safety needs and individual rights involved, lawmakers can find a constitutionally sound way to preserve that framework while also better empowering the families involved.
Further action to strengthen Maine’s yellow flag law and better empower families is absolutely needed. But that action should come through a carefully balanced and debated process between lawmakers and the governor’s office, with ample public input, not distilled into a several-sentence ballot question.
