Reflections on "Red-Flag Laws" in Wake of Maine's First Mass Shooting
Opinion
In all honesty, Maine has long seemed like a magical place, a Neverland if you will, where the rules don’t apply, and we can remain innocent children forever. While I have traveled extensively, Maine has always been there for me, my place of comfort when life gets too crazy, the world gets too scary. That illusion was shattered this week for me and for so many others.
Not only was my home state the epicenter of the most recent mass shooting tragedy, but I was eerily close to an intended shooting here in Oregon. I was climbing at Smith Rock recently when a man allegedly planning an attack on the annual Smith Rock Craggin Classic arrived in Bend, armed with the weapons he needed to kill as many climbers as possible. Fortunately, his friends, who knew of the imminent threat, contacted law enforcement and unthinkable tragedy was averted.
It goes without saying that I am extremely upset about last week’s shooting in Lewiston, Maine, and I know so many are grieving loved ones. I feel privileged in that my family has not been directly impacted, and yet, reading the bios of the victims, these people seem like family. While my take won’t be perfect, I am galvanized to do something, anything, to push our representatives to make change. Apparently, for me that means starting a Substack and opening myself to public scrutiny.
There is one aspect of the Lewiston shooting that sticks out to Mainers and that friends and family have raised with me repeatedly. How could Robert Card, an army reservist with a documented history of making shooting threats and with a recent mental health hospitalization, have had access to firearms? The process of removing guns is murky for many of us. I didn’t even know what the process was until I started researching in the wake of this tragedy. I learned, perhaps along with some of you this week, that the Gun Control Act of 1968 prevents those deemed by the courts as incompetent or mentally ill from possessing a gun, along with those who have been involuntarily committed. Various news sources have stated that Robert Card was not formally ‘committed,’ implying he was institutionalized voluntarily.
Could an Emergency Risk Protection Order fill in the gap for someone like Robert Card who doesn’t meet these criteria but was at-risk nonetheless? Maine’s Republican Senator Susan Collins seems just as confused about this issue as the rest of us: "It certainly seems that on the basis of the facts that we have, that the yellow flag should have been triggered," Collins said. As a health care provider, I wanted to get to the bottom of this mud puddle.
What is an Emergency Risk Protection Order? Some version of an ERPO law exists in roughly half of states, and they vary widely. Typically, they allow for a family members or law enforcement to petition the court for an order to temporarily remove firearms from an individual that is deemed to be a significant threat, whether to self or others. These orders can last from days to weeks, allowing for stabilization of a potentially dangerous situation. After a full court hearing, the order may be extended, typically for a year.
In my experience as a nurse, threats to shoot oneself or others are commonplace in emergency departments. When this happens, healthcare staff do not automatically call the authorities, but instead focus on evaluation and treatment. I’d like to point out that it’s great that reporting suspected crimes is not a part of my job. I don’t, for example, call law enforcement when I suspect a patient is using illicit substances or if a patient is undocumented. It’s not a part of the culture of any emergency department I’ve ever worked in to have law enforcement on speed-dial, despite widespread public fears to the contrary. This is in part because the Health Insurance Portability and Accountability Act" of 1996 offers patients incredibly robust protections. However, in cases that HIPAA allows for exceptions, reporting should be easy and straightforward. Healthcare workers should be able to initiate reports without fear of lawsuit or loss of license.
I’ll include a link to DHHS’s guide to HIPAA and its exceptions here. HIPAA does provide an exception for breaching HIPAA when, “the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.” I don’t have a memory of making such a call to law enforcement, though I might need to in the future.
But what is imminent threat? This feels so subjective, and unfortunately, where there is ambiguity, healthcare workers often err on the side of protecting themselves, not patients or the public. The HIPAA exception might enable me as a nurse to notify law enforcement if a person were making specific threats, such as, “I’m going to shoot up a school” but does not seem to cover generalized mental health crises or infamous ‘gut feelings.’ As a nurse, I don’t have an attorney on retainer; I don’t know how to parse these distinctions. What about someone who is experiencing psychosis, and with access to guns, but not making threats? Making that call could not be a decision I would make on my own, but in conjunction with other team members.
In this vein, I seek to draw a comparison between mandatory reporting of abuse and reporting the risk of gun violence. As a nurse, calling DHHS to report suspected child and elder abuse is a regular part of my job. While these laws differ state to state—some also require reporting of interpersonal violence for example—every state has strong mandatory reporting laws that make my job responsibilities clear. I am not liable if I make a call to DHHS, and I can remain anonymous.
Training for mandatory reporters is required and robust. Mandatory reporters are taught how to identify potential abuse in its many forms, and importantly, they know they can be held liable if they fail to report. I am incentivized to make that call, however painful or awkward, even when I am uncertain whether abuse has taken place. Finding the appropriate number is easy, and importantly, it is just that, a twenty-four-hour phone number.
The threshold for ERPO petitions being granted seems to be lower than “serious and imminent,” meaning that courts may grant a petition without evidence of an imminent threat. However, this seems like a HIPAA gray-area, and solid protections must be in place if we expect health care providers to initiate petitions. But when it comes to triggering a petition, the process is not simple. States laws differ greatly, and in states that do have ERPO laws, some don’t allow clinicians to initiate ERPO petitions, which must be filed with the district court, potentially in person, where the person resides. In those that do allow health care providers to initiate, rules vary as to which type of clinicians can initiate the petition. DHHS guidance states:
State ERPO laws differ from each other in significant ways. For example, a state ERPO law may permit a law enforcement officer or an individual’s family member to apply for an ERPO but not permit an individual’s health care provider to do so. Covered health care providers should consult any applicable ERPO laws in their state before using or disclosing PHI in relation to an application for an ERPO.
After a lengthy, head-banging search, I finally found Maine’s ERPO-like law on the Maine.gov website using search terms: “firearm restriction.” It was titled “Protection from Substantial Threats.” Medical practitioners are included as eligible petitioners and are defined as: “licensed physician, licensed physician assistant, certified psychiatric clinical nurse specialist, certified nurse practitioner or licensed clinical psychologist.” In the state of Maine, a nurse wouldn’t be eligible, leaving busy advanced level providers with the responsibility of initiating ERPO petitions.
I might argue that any health care provider, along with teachers and school administrators, are uniquely positioned to initiate ERPO petitions based on their intimate knowledge of patients and students. States often place the onus on families and law enforcement, when neither may even be involved. Katherine Hoops, MD, MPH argues (Enabling Clinicians to Petition for ERPOs Can Save Patients’ Lives) that initiating ERPOs should be a regular part of discharge planning for at-risk patient, but there are significant barriers including a lack of awareness and training about ERPOs in the clinical context.
What happens in a state with no ERPO legislation? Family, friends, and community members can always have the ability to call 911 to report at-risk individuals and to get people help. Local law enforcement will likely be able to use other legislation to mitigate the risk, but their options may be limited to detention rather than removal of weapons. Maine provides a unique case study. Maine does not have a robust “red-flag law”, but instead a non-traditional ERPO that requires medical evaluation prior to the court granting a petition; this was considered compromise legislation.
This article from the Maine Gun Safety Coalition, points out limitations of the Maine “yellow-flag law.” The coalition argues that medical examination, which can be difficult to obtain and highly stigmatized, proves to be an unnecessary barrier to removal of firearms from an at-risk individual: “This process is unduly harsh and makes it unlikely to be used by families who do not want to further traumatize their loved ones by having them taken into custody. Further, medical evaluations are very hard to come by in Maine, especially on an expedited basis, causing an unnecessary delay that may be fatal.” As Americans we tend to be obsessed with gun rights, but I tend to worry more about involuntary medical detention and the harms it can cause. I’m curious about the Wall Street Journal’s take. The publication questioned Maine’s law this week, though I haven’t made it past the paywall.
As a last thought—and here is where I will lose many—focusing on mental health issues may be the wrong direction entirely when we consider that western countries have similar rates of mental health issues, but they do not have similar rates of gun violence. A nationwide ban on assault weapons would likely have a much greater impact than ERPO legislation when it comes to preventing mass shootings. Australia’s legislation, and subsequent reduction in violence, after the 1996 Port Arthur massacre provides a perfect case study.
There is no need to get assault weapons out of the hands of people having mental health crises if none of us has access in the first place. And remember, the vast majority of people with mental health issues never cause harm. However, I suspect that ERPO legislation will continue to be important, especially for the sake of preventing suicide and domestic violence, for as long as gun culture persists in America. Whew, deep exhale. I urge readers to contact your legislators, asking them to draft or strengthen ERPOs, and other common sense gun legislation. I beg for nuanced and respectful discussion.