After the mass shootings in Texas and Ohio, like clockwork, gun control organizations pounced on their opportunity to push more gun control. This time, the focus is on more “red flag” laws, which allow family members and police to petition a court to take firearms from individuals deemed a danger to themselves or others.

In Maine, they can already do that.

On Aug. 7, just a few days after the shootings, NBC Nightly News ran this story titled, “Red flag laws gaining support from both sides of gun debate.” In the story, a Maine woman, Darlene Patrick, was interviewed. She lamented about her son and his struggles with a lifelong mental health condition and how she wished Maine had a law that could temporarily take firearms from people, like her son, when he becomes violent.

Well, wish no longer — we can already do that here. A new law, L.D. 1811, An Act to Enhance Personal and Public Safety by Requiring Evaluations of and Judicial Hearings for Person’s in Protective Custody Regarding Risk of Harm and Restricting Access to Dangerous Weapons, designed to address just that scenario.

You see, Maine has a protective custody statute for individuals in mental health crisis, enacted in the midn 1970s.

First a little history, since the mid 1970s, if a police officer “had probable cause to believe that a person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons,” the officer can detain that person for 18 hours.

During the 18 hours, under the law, the officer “shall deliver the person immediately for examination by a medical practitioner.” If upon examination (and judicial review) it appears that person remains a danger to themselves or others, he may be involuntarily hospitalized via a process called “blue papering.”

Blue papering, named for the color of the original form, can be initiated by anyone, including health care providers and law enforcement officers, when:

• The applicant believes the person has a mental illness, and;
• Applicant believes that the person poses a likelihood of serious harm because of the mental illness.

At this juncture in the patient’s mental health hospital journey, several things can happen:

• If the crisis is temporary, like an adverse reaction to prescription drugs, and that person recovers quickly, the person can be released without further action.
• The person may be in crisis and treated for a lengthier period of time and then released.
• Proceedings may be initiated to “white paper” (commit) them to indefinite, involuntary treatment in a mental institution. “Commitment” involves a due process hearing. Persons who are “committed” after hearing may no longer possess firearms.
• Finally, the court, as a condition of release, may order an individual with a lengthy history of mental health problems, into the court-ordered Community Outpatient Mental Health Treatment Program.

The process just described has existed for almost five decades and was recently updated when the Legislature, with almost unanimous bipartisan support, passed L.D. 1811.  Though the bill reinforced gaps in our statewide mental-health safety net, it made no changes to the old protective custody statute. The new bill also strengthened due process protections for individuals in state custody.

During the debate on L.D. 1811, we learned that mental health services are difficult to access during the day, and nonexistent north of Portland after normal business hours. The unfortunate reality is, in many rural parts of the state, patients entering the protective custody system are being released without treatment. Beds and services are almost unavailable in the region. Can you imagine the frustration and anguish police officers and doctors endure, knowing they are releasing patients that are a danger to themselves or others?

L.D. 1811 fortifies the existing system by creating a new avenue for mental health patients that appear dangerous, but are released from custody simply because the services are not there.

This is how the new LD 1811 option works:

First, using existing law, an officer contacts and evaluates a potential “patient.” The officer, following the independent endorsement of a medical practitioner and a judge, can remove dangerous weapons from an apparently disturbed patient for up to 14 days. At that time, the patient gets a full hearing. During that time frame, the person must turn over “dangerous weapons,” which may include items other than firearms.

Indigent patients in this new process have the right to appointed counsel, just like in the criminal arena. At the 14-day hearing, if the state wants the “no weapons” order to remain in place, it must prove by clear and convincing evidence that the patient remains a danger to themselves or others.

If the state proves its case, a patient may lose his weapons for up to a year. During that period, if the patient’s condition improves, he can petition the court to get the weapons back immediately.  After a year, the order expires automatically and all rights and property are restored.

In addition to these new changes, the state is directed to explore new telemedicine treatment options to connect patients with available mental health services.

The law is now being looked at nationally as a much better alternative to the more divisive “red flag” bills pushed by gun control organizations. More importantly, Maine has new broad protections for mental health patients and the public while preserving individual liberties.

David Trahan of Waldoboro, a former state legislator, is executive director of the Sportsman’s Alliance of Maine. This column does not necessarily reflect the opinion of that organization.

 

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