Two years after its yellow-flag gun safety law took effect, Maine still does not have a statewide system in place for police to arrange medical assessments needed to temporarily confiscate firearms from people who are a threat to themselves or others.

Maine politicians have praised the yellow-flag law and said it should be considered as part of a national gun reform legislation being negotiated in the U.S. Senate. But police have said they can’t take full advantage of the law because hospitals are not willing to provide in-person mental health assessments, partly because they fear retaliation from the individuals and the state doesn’t have a system to conduct evaluations remotely.

Between the time the law took effect in July 2020 and March 31 of this year, only 23 people have been taken into protective custody by police  to initiate the yellow-flag process. Seventeen of those cases, 74 percent, involved a threat of suicide, according to the Maine Attorney General’s Office, which does not track how many gun removal orders were ultimately granted.

But that could soon change.

State officials say they are working to set up a system to conduct remote medical evaluations to streamline the process for police to temporarily confiscate someone’s firearms if they are deemed by a judge and medial professional to be a threat to themselves or others.

Unlike so-called red-flag laws that exist in 19 states, Maine’s yellow-flag law contains an additional hurdle by requiring a medical opinion in addition to a court order based on sworn testimony from a police officer, family member or others concerned that someone poses an immediate threat and should not have access to firearms.

Spurwink, a nonprofit that provides behavioral health and education for children, adults and families, is currently working on a telehealth system to make it easier to safely conduct those assessments anywhere in the state, according to the Department of Health and Human Services.

“Spurwink will contract with a clinical organization that has expertise in this area to provide the assessments, which will be available on a 24/7 basis via telehealth,” Department of Health and Human Services spokesperson Jackie Farwell said in an email. “This will allow law enforcement to connect individuals in hospitals or other settings with assessments remotely. Spurwink will finalize protocols for the assessments with its clinical subcontractor, and law enforcement will then be trained on the process.”

Ben Strick, Spurwink’s senior director of behavioral health, referred questions about the program to the state. “We’re excited to partner with the state on this important initiative,” Strick said. 

Such a system is vital to being able to take advantage of the law, said Jeff Austin, a lobbyist for the Maine Hospital Association, because some medical providers don’t feel qualified to conduct the assessments and others worry about retaliation if assessments are conducted on site.

“Telling an individual that he is not fit to possess a weapon is provocative and a retaliation of some sort is foreseeable,” Austin said. “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. I am not a clinician. But I have heard some express concern that this is getting into behavioral psychology, not traditional psychiatry.”

Austin said his association was pushing for a bill in the last legislative session that would have required the state to set up a remote assessment system. The state ultimately agreed to do it, so the association changed the bill to a resolve focusing on training police about the new law.

“The remote assessment model provides the additional benefit that the state can be very intentional in selecting the clinicians who will conduct these evaluations,” Austin said. “And because the assessments are remote, the assessments can be conducted consistently across the state. This will make the assessments more defensible in court.”

Maine tried to pass a version of the more common red-flag law in 2019 that would have allowed police to seek a court order to temporarily seize guns from people deemed to be threat to themselves or others, without the need for a medical assessment. It did not pass.

Instead, lawmakers passed a compromise bill requiring a medical professional to sign off on the request, rather than allowing a court to issue an order based on sworn affidavits from police, family or household members. That’s why some describe Maine as having a “yellow-flag” law. That additional requirement has made the law difficult for local law enforcement to use, because there is no formal way for medical experts to conduct remote evaluations via video.

Meanwhile, Maine’s gun laws are being offered as a model for national legislation, with the Maine Gun Safety Coalition and the Sportsman’s Alliance of Maine working with Sen. Susan Collins and other members of the state’s congressional delegation.

David Trahan, executive director for the Sportsman’s Alliance of Maine, said he’s hopeful the federal legislation will include grant funding to help states set up telehealth systems to conduct remote assessments, as well as additional grants to help at-risk groups secure dangerous weapons in homes.

“We’re pretty excited about those things being discussed,” Trahan said. “If we come up with a grant program at the federal level that enables people to start implementing things like yellow flag and safe storage laws at the state level, I see the feds as having a role in helping to fund that, and I think that’s exactly what’s happening in this package. They realize each state is different. Every one of their solutions are going to be different.”

Note: This story was updated June 13 to correct the name of the Maine Hospital Association.

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