PORTLAND, Maine — "Useless." That’s the word one Maine sheriff used to describe a state law intended to separate people from their weapons when they are suspected to be a serious risk to themselves or others.
Kevin Joyce of the Cumberland County Sheriff’s Office detailed the roadblocks his deputies faced while trying to activate Maine's "yellow flag" law just one month after the Lewiston mass shootings. Joyce said his deputies faced similar challenges Sagadahoc County deputies encountered while trying to separate the Lewiston shooter, Robert Card, from his guns before the Oct. 25 massacre.
Joyce called the similarities between Card and the man in this incident "eerily similar."
A few days after Thanksgiving 2023, Joyce said his deputies received a call from a woman saying she was concerned about her brother's behavior after the two got in a fight.
"He had firearms. He had a lot of firearms. He was paranoid. He felt the government had planted a bug in his ear," Joyce said. "That was a bit concerning when you start looking back: former military, [post-traumatic stress disorder], hospitalized for mental illness, has a lot of firearms, had assaulted his partner out of the clear blue at work. So, at that point, we started getting concerned."
Joyce said his deputies learned during their investigation that this man had been affected by the Lewiston mass shootings; family members described a deterioration in his mental health afterward. When they went to the man's home in Raymond, he would not answer the door. Joyce said body armor was visible through a window.
Deputies later received reports from neighbors that the man was seen walking up and down his driveway, wearing that armor and a helmet while carrying what appeared to be an AR-15 with a suppressor. Deputies started surveilling the man 24 hours a day.
"We were actually going to try to implement the yellow flag," Joyce said. "He should not have had firearms based on the evidence we had, and it was really evident."
But they could not implement the weapons restrictions order because of one simple problem.
"When the deputies arrive at his house, they knock on his door, the lights are on, they suspect somebody’s there, but no one answers," Joyce said. "One of the requirements of the yellow flag is you have to have contact with a person, and this guy refused contact."
Maine’s yellow flag law has a series of specific steps law enforcement must meet. The first step in that process is to make face-to-face contact with the person of concern and take them into protective custody. If the officers can’t do that, they can’t proceed to the next step, which is the medical evaluation. However, if a person has committed a crime, officers can pursue an entirely different set of actions. Joyce said the man had not previously committed a crime that would permit them to act.
"Their hands are tied in these situations," Ben Strick, Spurwink's director of adult behavioral health, said. "This [problem] showed itself in multiple scenarios, not just one. When there's probable cause, the person is mentally ill and poses a likelihood of serious harm, the only option is protective custody."
The state contracts with Spurwink, a health agency that performs the medical evaluations specifically for yellow flag law weapons restrictions orders. Prior to the Lewiston shootings, Spurwink said it performed 46 assessments in 10 months. In the three months after the shootings, Spurwink performed 85, including nine with references to "Robert Card," "Lewiston," or "mass shootings."
Strick said the agency now averages about one weapons restrictions order assessment per day.
"The discussion certainly changed after Lewiston. I think the urgency to make changes in the statute was increased," Strick said.
After 72 hours of surveillance and $20,000 in cost, Joyce said he had to make the choice to pack up his team and come up with a new plan.
"We were between a rock and a hard spot. I was angry we had to pack up and leave because I have an obligation to the public, too," Joyce said. "If something had happened, the weight on everybody that was involved in that would have been lifelong."
That major roadblock was the inability to contact the person of concern, Joyce said.
"If you’ve got someone who won’t answer the door, and you don’t have any reason to barge through, the yellow flag’s not going to work. Or you need a crime, and this guy had not committed a crime," Joyce said. "[The yellow flag law is] not effective."
Joyce said he still felt his duty to protect the public, so he and his team came up with a new plan. For seven additional days, they waited for the man to leave his home so they could attempt to talk with him and begin the yellow flag process.
Then, the man finally left his home. Deputies followed him to a nearby store, where they were able to take him into protective custody and start the yellow flag process. He is now at the Togus VA hospital, Joyce said, where he is getting treatment for mental health issues. Joyce said they have removed his firearms.
For the 10 days prior to the man leaving his home, the yellow flag law did not work.
"It was useless for us," Joyce said. "We didn’t have all of the elements that gave us the ability to exercise this yellow flag law."
Another complicating factor to this problem is the U.S. Constitution. The Second Amendment protects a person's right to own firearms, and the Fourth Amendment protects someone from unreasonable search and seizure.
"This points out a real gap between state law, the yellow flag, and people’s constitutional rights," Joyce said.
However, Gov. Janet Mills said the state has plans to improve and strengthen the yellow flag law.
Mills announced a new proposal during the State of the State address Tuesday that would allow officers to obtain a warrant to enter a home of a person of concern who refuses contact, called a protective custody warrant.
"A protective custody warrant expands the options for law enforcement in times when somebody poses a likelihood of serious or foreseeable harm," Strick said. "I hope the Legislature will support this change because it'll make a meaningful impact on community safety."
An option Joyce said his deputies needed and did not have.
"I have an obligation to him as an individual, but I have an obligation to the public as well. If they haven’t committed a crime, and you can’t act on the yellow flag, legally, ethically, morally, you could run into a dead end," Joyce said.