Maine Supreme Court denies challenge to state’s ‘yellow flag’ law


In a decision released June 21, the Maine Supreme Judicial Court ruled against a man who alleged that the state’s yellow flag law was improperly extended without clear evidence and that he was the victim of prosecutorial misconduct.

Maine’s yellow flag law allows law enforcement to petition a court to temporarily seize firearms from an individual who is in custody and who is considered at risk of harming themself or others. The order also requires law enforcement to inform a medical practitioner about how the decision to place an individual in protective custody arose. The medical practitioner is then required to issue an opinion about whether the individual in question “presents a likelihood of foreseeable harm.”

The law requires that individuals deemed at risk of doing harm and whose weapons have been surrendered receive a judicial hearing within 14 days to determine whether the initial order should be dissolved or extended. The burden of proof to have the order extended is on the district attorney, who must prove “by clear and convincing evidence that the restricted person presents a likelihood of foreseeable harm.”

Maine’s highest court recently ruled this procedure was not followed in a decision to extend the weapons restriction against a defendant, identified as J.

According to the case’s background, J was placed in protective custody after an incident that occurred on September 8, 2021. Upset by personal problems, J became intoxicated and emerged from his bedroom in an “agitated state carrying a handgun,” which his girlfriend took from him.

When J produced another gun from his bedroom, J’s girlfriend called the police. J’s girlfriend remained on the phone with an emergency dispatcher while J continued to try to enter his bedroom, which she was blocking, in an attempt to obtain another firearm and ranted about killing any police officers that came to his home. 

When police arrived, J was standing in his driveway armed with two kitchen knives. Police approached and repeatedly asked J to drop the knives. When he did not comply with their orders and began walking towards them, police shot J and took him into custody.

Police reported that J was agitated and continued to make threats while in custody. He was examined by a doctor for approximately six hours and found to be mildly intoxicated and belligerent to medical staff and law enforcement.

Based on this assessment, as well as sheriff’s deputy reports and medical records indicating he had previously berated medical staff, the doctor found J to be a “mentally ill person” within the definition of Maine’s yellow flag law and found him likely to pose foreseeable harm.

The next day, on September 9, law enforcement applied to the court for an endorsement of the doctor’s assessment, which allowed police to seize J’s firearms.

“Attached to the application was a statement of probable cause and the written assessment by the doctor, as required by the statute,” Maine’s highest court noted. 

On September 10, the state filed a petition to extend the restriction for up to a year. A hearing was scheduled for September 22.

During the hearing, J’s girlfriend, the evaluating doctor, and one of the deputies who took J into custody testified. J admitted to the events of the night of the incident. He said he would never hurt his girlfriend or police, but that he had not stopped drinking or sought mental health treatment and that some of the personal issues surrounding the incident were ongoing. 

On September 22, the court extended the restriction against J for a year, to September 22, 2022 and noted there was “clear and convincing evidence to continue or extend the initial weapons order.”

As required by law, the form also had a space for the court to outline the evidence on which the decision was based, but this was left blank. A hearing was scheduled for August 3, 2022, forty-five days before the order expired, as is required by the law. 

J filed an appeal, which challenged the law’s constitutionality and argued that the extension of the weapons restriction was not supported by clear evidence, that the court failed to make factual findings when it extended the restriction, and that the prosecutor committed misconduct during the closing arguments of J’s hearing.

The court found J’s argument that the right to bear arms and that Maine’s yellow flag law violates the state constitution to be unpersuasive. The court found that Maine’s legislature met a standard of reasonableness in passing the yellow flag law because it promotes public safety and the law’s “provisions bear a rational relationship to that goal.”

The court also found that the law provides procedural due process by creating time limits in which a person under a restrictive order must be notified and by requiring multiple hearings.

The court also found J’s claim that the yellow flag law’s use of the terms “likelihood of foreseeable harm” and “in the foreseeable future” were unconstitutionally vague to lack merit. The court noted that the statute does define “likelihood of foreseeable harm” and also includes specific circumstances that must be shown for a restrictive order to be approved.

The court also found similar language is used elsewhere in state statute. 

“Given the clear definition provided within the statute, the wide usage of similar language in other statutes, the constitutionality of that language in those statutes, and our case law, the court did not commit obvious error when it applied the statute and did not determine it was void for vagueness,” the court wrote.

The court also found there was evidence to support the extension of the restriction against J, but ruled that the trial court omitting further factual finding from the order extending that restriction was improper. The court did not vacate the trial court’s extension because J did not file a motion for fact finding once the order was extended. 

J’s final argument, that the prosecutor at the hearing to extend the restrictive order made an improper closing argument by shifting the burden of proof on the defendant and by appealing to emotion and fear, was also rejected by the court.

“And I challenge the Court to ask itself this question: two months from now, six months from now, if we were to find out that [J] shot and killed himself, his girlfriend, or a police officer, would we in good conscience be able to look back to today and say, yeah, there was no likelihood that that would happen based on what happened two weeks ago? We would not. I sincerely hope and would like to believe that that is not going to happen, but as we sit here today, we cannot honestly say that there is no likelihood of that happening, of that foreseeable harm based on what happened less than two weeks ago, and that the state has proven by clear and convincing [evidence],” the prosecutor said during closing arguments in the hearing to extend the restrictive order. 

The court found there was no improper shifting of the burden and said that while the prosecutor’s language was imprecise, he acknowledged that the burden of proving foreseeable harm by clear and convincing evidence was on the state.

“Nothing in the court’s findings suggests that, because of the State’s argument, it misunderstood the burden of proof. J cannot, therefore, establish obvious error,” the court wrote.

The court also rejected the argument that the prosecutor’s remarks were emotionally charged. 

“The statements made by the prosecutor were firmly based in evidence. The court heard, through both testimony and the 9-1-1 call entered into evidence, that J. had threatened to kill himself, the police, and his girlfriend. These issues were directly related to the decision that the court had to make under the statute,” the court concluded.


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