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Maine’s yellow flag law has been held up as a model for federal policy to combat gun violence. However, the law, passed in 2019, has shortcomings that have limited its use and effectiveness.
The law, which had strong bipartisan support in the Legislature, allows law enforcement to petition a court to seize guns or other weapons, but only if a medical professional determines that a person with a mental health condition poses a significant threat to themselves or others.
This medical assessment, which is initiated only after a person has been taken into protective custody by law enforcement, is an added layer of review that is not part of the red flag laws that have been enacted in 19 states and the District of Columbia.
Getting such a mental health determination has been difficult, Jeff Austin of the Maine Hospital Association told the Portland Press Herald this week. Many mental health practitioners don’t feel qualified to make such a determination and many fear retribution from those they are asked to evaluate, Austin said.
As a result, law enforcement officials have reported difficulty implementing the yellow flag law because of a lack of medical providers willing to do the required assessments.
As of March 31, according to data from the Maine Attorney General’s Office, 23 people have been taken into protective custody by law enforcement to initiate the yellow-flag process since the law went into effect in July 2020. Nearly three-quarters of those cases involved a threat of suicide. The office does not track how many gun removal petitions were ultimately approved by a judge.
“Telling an individual that he is not fit to possess a weapon is provocative and a retaliation of some sort is foreseeable,” Austin said. Hospital officials worry that if people are brought by law enforcement to their facilities for a mental health assessment to determine if their weapons should be seized they may retaliate against hospital staff, putting medical providers and patients at risk.
“A second concern of hospitals is that the yellow flag assessment is getting attenuated from the kind of medicine our clinicians are qualified to practice,” Austin told the Portland paper. “I am not a clinician. But I have heard some express concern that this is getting into behavioral psychology, not traditional psychiatry.”
The state is moving ahead with a new system of remote assessments that should help address both concerns, but it is not in place yet.
The 2019 law required the Maine Department of Health and Human Services to develop a request for proposals to develop a system for conducting assessment outside of health care facilities. The department worked with Spurwink to build a crisis center in Portland where people can go to get emergency mental health services seven days a week. The center opened in February.
Providing telehealth assessments for protective custody and weapons seizures will also be offered through the new center, beginning in the fall. This telehealth system, which will allow people to be evaluated while they are held in protective custody at police stations, emergency rooms or other facilities, should also address the hospital association’s second concern about the small number of psychiatric specialists qualified to undertake the assessment required by the yellow flag law. It will also make this expertise available statewide.
Maine’s yellow flag law may prove to be a useful tool to reduce gun violence, including suicides, which are by far the top cause of gun-related deaths in Maine. But, it is too soon to tell because its full implementation has been slowed by the complexity of – and the resistance to – the mental health evaluations that it requires.
