By Sen. David Haggan

(Editor’s Note: This column originally appeared in the Bangor Daily News.)

This November, we will vote on two citizen-initiated referendum questions. One of these questions will be whether Maine should enact a so-called “red flag law.” This may be confusing as our state already has an extreme risk protection order on the books, more commonly known as the “yellow flag law.”

I believe our existing yellow flag law is effective and a better choice for Maine. Despite many claims made by red flag advocates, their proposal likely would not have been a more effective tool in preventing the Lewiston tragedy in 2023. In fact, the Lewiston Commission found that “the Sagadahoc County Sheriff’s Office (SCSO) had sufficient probable cause to take [Robert] Card into protective custody under Maine’s yellow flag law and to initiate a petition to confiscate any firearms he possessed or over which he had control.”

Maine’s existing yellow flag procedure has been used over 1,000 times since the Lewiston shooting , demonstrating its effectiveness in temporarily removing firearms from those in crisis while ensuring they receive the help they need.

The red flag proposal completely strips the latter component from the equation. Under the yellow flag law, law enforcement is required to take a potentially dangerous individual into protective custody for a mandatory assessment by a mental health practitioner. This protective custody and professional evaluation are essential — not only to protect the public but also to connect the individual with potentially life-saving resources.

This red flag proposal, however, does not include protective custody. Firearms may be removed, but no steps are taken to ensure the individual is no longer a danger to themself or their community.

This is not to mention the serious due process concerns the red flag initiative raises. The passage of Question 2 would create so-called “emergency extreme risk protection orders” that permit ex parte hearings, meaning a judge could issue an order without any prior notice or the involvement of the individual in question.

Red flag also utilizes two completely different standards of evidence for the granting and termination of an extreme risk protection order. The lower standard of “preponderance of the evidence” — something is more likely than not — is used to take firearms away; but to have their rights restored, the individual must meet the far more demanding “clear and convincing evidence” standard, which requires proving a high probability of truth.

In simple terms, the state can take away someone’s firearms with a weak standard; but that person must meet a much higher bar to get them back. And it’s not just your Second Amendment rights at risk; there are also serious concerns around violations of the Fourth and Fifth Amendments of the U.S. Constitution. 

I believe the red flag process is also ripe for abuse. In contrast, the yellow flag law intentionally includes law enforcement early in the process. During a situation as stressful and dangerous as an individual in crisis, it is crucial that trained professionals who are equipped to handle these situations are involved. Instead, under the proposed red flag law, a broad group of family or household members, including former spouses and domestic partners, could file a petition with a court to strip an individual’s firearm rights. The inclusion of law enforcement enables a trained, neutral arbiter to evaluate whether probable cause exists. 

In short, Maine already has a process that works. It protects communities, respects due process and ensures individuals in crisis receive the help they need. There is no reason to weaken our proven yellow flag system with a flawed, less safe red flag law pushed by out-of-state groups.

Undermining a system that saves lives and safeguards rights with one that does neither would be a dangerous mistake.

Senator David Haggan is serving his first term representing Senate District 10, which includes nine communities in Penobscot County and three communities in Hancock County. He previously served four terms in the Maine House of Representatives; and he is the Senate Republican lead on the Legislature’s Judiciary Committee and Health Coverage, Insurance and Financial Services Committee.