Clinton police Chief Stanley Bell can’t pinpoint exactly why his team has used Maine’s yellow flag law so much more often than other departments.

The Kennebec County agency, which employs just three full-time officers and a handful of part-timers, has executed the process 12 times in the past year to temporarily confiscate the weapons of individuals deemed an imminent threat to themselves or others.

That’s more than nearly every other department in the state. More than Clinton’s larger neighbors Waterville and Skowhegan. More even than the Portland Police Department.

“To be completely honest with you, we don’t ever go out of our way to use it,” Bell said in an interview. “They just come to us.”

Clinton was among many law enforcement agencies that drastically changed the way they approached Maine’s extreme risk protection order law in the months after the October 2023 Lewiston mass shooting brought it into the public eye. In the three and a half years before the massacre, police in Maine had enacted the law a total of 81 times. In the 18 months since, that number has risen to more than 800.

But a new Portland Press Herald analysis of the state’s yellow flag data, which is maintained by the Maine attorney general’s office, reveals significant geographic disparities in how often police have removed weapons from dangerous individuals.

Some departments, like Clinton and Sanford, have used the law far more often than other similarly sized agencies. Others, like Kittery and Caribou, have either used it infrequently or have not used it at all.

Like Bell, several police leaders who spoke with the Press Herald struggled to explain the pattern.

With few exceptions, mental health professionals and courts virtually always approve police officers’ yellow flag requests, according to data provided by Spurwink, the provider that conducts most of the required mental health evaluations.

Yet it remains impossible to know how often dangerous individuals who could or should be yellow flagged never are — either because local police never learn about their behavior or because they have inconsistent standards on when they put the law to use.

CHANGING BARRIERS

For years, the main criticism of the yellow flag process was that it was cumbersome and ate up already limited police resources. Before Spurwink began conducting the required mental health evaluations online in late 2022, officers sometimes struggled to find a willing health care provider.

Because Maine law didn’t allow officers to obtain a warrant to bring someone into protective custody, yellow flag candidates could stymie police simply by refusing to let them into their homes.

Some departments, like Sanford, figured out how to use the law efficiently, but most didn’t.

Portland police Chief Mark Dubois told the Press Herald in November 2023 that his team preferred other methods of getting guns away from potentially dangerous individuals, including persuading them to give up their guns voluntarily.

Conversations around the yellow flag law have changed in the aftermath of the Lewiston shooting.

“Going forward, we will err on the side of caution,” Sagadahoc County Sheriff Joel Merry remembers telling his team after being criticized for not disarming the Lewiston shooter. “If anybody even hints that they are a threat to themselves or another person, we’re going to take them into protective custody and initiate the yellow flag process.”

Other police leaders have followed suit.

Today, most departments have used the law at least once. Recent tweaks — including allowing police to obtain a protective custody warrant — and improved training practices have made the process more approachable, officers say.

“It’s not scary. It’s not complicated,” Bell said. “It’s involved, but it’s not difficult.”

Even leaders of departments that rarely use the law agree it’s easy. So why, if everyone feels comfortable with the process, do agencies vary so dramatically in how often they use it?

DIFFERENT COMMUNITIES, DIFFERENT NEEDS 

After adjusting for population, police agencies have completed the yellow flag process more in Sagadahoc County than anywhere else in the state — about eight times as often as in Washington County.

“Is there something in the drinking water of Sagadahoc County that causes people to be suicidal or homicidal?” Merry, the sheriff, wondered last month. “I don’t know.”

There’s no conclusive data showing how people who would qualify for a yellow flag procedure — a somewhat subjective label — are distributed geographically throughout Maine. Centers of Disease Control and Prevention statistics on gun deaths are available only through the end of 2023, before use of the law surged.

But based on historical gun violence trends, it doesn’t seem to be the case that the difference in yellow flag usage can be attributed to a difference in need.

Though Maine’s gun homicide rate is low, the state’s gun suicide rate was about 42% higher than the national average from 2018-2023, according to CDC data. That problem is particularly acute in some of the rural counties where Maine’s yellow flag rates have been the lowest, including Washington County, which has by far the fewest yellow flags per capita but the state’s second-highest gun suicide rate.

And though it took a mass shooting to bring Maine’s extreme risk protection order into the public eye, research suggests that these laws are especially effective at preventing suicides. According to one multi-state study, every 17 completed red flag procedures may result in one fewer suicide.

Maine’s small population make these numbers more prone to statistical variance — even just a few extra gun deaths or a few extra yellow flags in Washington County could change the picture significantly. But if historical suicide rates are accurate, the yellow flag law could be underused in counties like Washington, Somerset and Franklin relative to the number of people who pose a danger to themselves.

The question is whether that’s due to differences in police behavior or how residents report information to different departments.

DEPARTMENT LEADERSHIP

Mainers did not welcome the extreme risk protection law with open arms.

In 2018, gun safety advocates pushed for a red flag law that would have allowed the family members of potentially dangerous individuals to directly petition a judge to confiscate deadly weapons. But though such a policy would have been far from unique — 21 other states have similar statutes — pro-gun groups like the Sportsman’s Alliance of Maine argued it would violate the 2nd Amendment rights of gun owners.

Lawmakers eventually compromised with the yellow flag law and its built-in due process protections and its focus on individuals with mental illness.

While critics say the statute’s additional administrative hurdles have made it less effective, Bell, the Clinton chief, said they’ve given him the confidence to use the law without fear of overstepping the Constitution. If his officers encounter a “borderline” case where an individual may or may not qualify for the yellow flag law, he said they start the process anyway and trust that the mental health evaluator or judge will reject the application if it isn’t warranted.

That might mean yellow flagging someone who is already under a doctor’s care at a VA hospital rather than considering it the medical system’s problem.

“Do you spin the wheel? Ninety-nine percent of the time, if you don’t do it, nothing’s going to happen,” Bell said. “But I don’t want to be in that narrow margin if I don’t feel that I’m hurting someone.”

He speculated that some other Maine departments likely did not share Clinton’s philosophy about erring on the side of the yellow flag. He believes some police officers still worry the law is constitutionally dubious.

But several leaders from departments with low yellow flag rates insisted that they are not skeptical of the law.

“I do think it’s a good thing; don’t get me wrong,” said Caribou police Chief Corey Saucier, head of the largest Maine agency that has never initiated a yellow flag process. “If the need came, I think we’d be all set.”

Kittery Lt. John Desjardins called it “pure luck” that his department has only needed to use the law once and was not reflective of any department policy.

“We could go from one to 10 in six months,” he said.

He, like Saucier, said that his team thoroughly responds to mental health cases, which make up an increasingly large share of policework. He believes that other methods of disarming people, like committing them to a psychiatric hospital under the state’s blue paper process or asking them to voluntarily give up their guns, are not valid substitutes for the yellow flag process.

“If yellow flag applies, we need to do yellow flag,” he said. “We can’t use another shortcut.”

Washington County Sheriff Barry Curtis, whose department has used the tool less than any sheriff’s office in the state, declined to speak about the law.

Benjamin Strick, vice president of outpatient and community services at Spurwink, said it seems that some departments excel at the yellow flag process because they’ve committed figuring out how to use the law efficiently.

It’s harder to know specifics about cases where the law doesn’t get used, he said. But he suggested that some of them might not involve police decision making at all.

SUFFERING IN SILENCE

In order for the police to start a yellow flag process, they need to know that someone is dangerous. That doesn’t always happen — especially when the individual is at risk of harming themself instead of others.

Some of the areas with the lowest yellow flag rates in the state also have shortages of mental health providers, which can result in more people reaching a point of crisis.

“I think there’s a natural hesitance to involve law enforcement. It’s a really scary thing to do for any family member,” Strick said. “And it’s the same thing for our providers.”

Just as police have gotten more comfortable with the concept of the yellow flag law over time, Strick hopes Mainers, including health care professions, will come to understand that alerting law enforcement about someone in crisis can be an important step in helping them.

He said more providers have been reaching out to Spurwink for training on how they can collaborate with police when dealing with patients who they worry might be dangerous.

In the meantime, some advocates are pushing for a stronger red flag law, which would allow families and doctors to cut police and law enforcement out of the process entirely.

“The fact that there could be a less burdensome process is only beneficial,” said Margaret Groban of the Maine Gun Safety Coalition. “I certainly applaud Sanford and other law departments that have made (using the yellow flag law) a priority, but it’s asking too much of them.”

The Maine Gun Safety Coalition has gathered enough signatures in support of a red flag to qualify for the November ballot. If the Legislature does not approve the measure this session, voters could themselves decide the future of the state’s gun policy this fall.

But red flag will face staunch opposition from the same forces that prevented its passage years ago.

David Trahan, executive director for the Sportsman’s Alliance of Maine, insisted that the law that he helped craft in 2019 is working better than supposedly stronger extreme risk protection orders in other states.

He cited Massachusetts, whose red flag law has barely been used in the last several years.

Trahan said he was skeptical of the idea that one could draw any conclusions from data about the law’s inconsistent usage in Maine. If there are concerns about certain areas not using yellow flag, he said, the solution is to help get funding to small police departments and under resourced district attorneys’ offices so they can more more easily use the law on the books.

“We don’t need another tool,” he said.

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