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“I’m not a constitutional lawyer” says ‘Red Flag’ gun confiscation sponsor at public hearing

Hon. Eric Brakey, founder of the Free Maine Campaign, speaks to a group of gun rights supporters between the Maine State House and Burton M. Cross building before the public hearing on L.D. 1312.

AUGUSTA – Passionate testimony was offered by lawmakers and citizens both for and against the proposed “red flag” gun confiscation proposal before the Maine Legislature’s Judiciary Committee on Monday, as hundreds of opponents and supporters rallied to the state capitol to make their voices heard.

Perhaps no answer was more direct, or underscored the uncertainty surrounding the bill than when Senator Rebecca Millett, the sponsor of the red flag proposal, responded to questions about the constitutionality of the bill by telling the committee “I’m not a constitutional lawyer.”

The bill creates a system through which someone who knows an individual can file a petition in a special judicial process and force that individual to surrender their firearms or have a search warrant issued for law enforcement to come seize them.

Individuals eligible to file a petition against an individual to seek the confiscation of that individual’s guns include a spouse, former spouse, immediate family or household member or person(s) who know the individual by consanguinity (a descendant) or affinity (related by marriage).

Opponents of the bill argue that the proposal is dangerous for law-abiding gun owners in that a disgruntled in-law or spurned former spouse or lover can unilaterally file a petition to have an individual’s guns confiscated.

Senator Millett, who chose to focus her testimony mostly on the suicide rate and impact of suicide on Mainers specifically mentioned veterans in her testimony and likened the issue to dealing with policies around children and the opioid crisis.

Read also: Maine gun confiscation “Red Flag” bill to bring hundreds to Augusta this week

Speaker Sara Gideon also testified in support of the bill. At times emotional, Speaker Gideon evoked images of violence against children as the driving force behind her support of the proposal under consideration.

Gun confiscations, under the proposal, “can be done ex parte, without the individual present,” said Speaker Gideon when questioned by the committee about the violation of due process that supporters of the bill say will occur.

Asked why the Legislature doesn’t just amend current laws, such as Maine’s blue paper law, to be more responsive to the needs the bill seeks to address, Speaker Gideon said that she felt the red flag bill would help with removing guns from individuals when no mental health issues were present.

She also said it could be used at “what seems to be a time” of dangerous behavior by an individual, or to restrict the access to guns of people not in need of the blue paper restrictions.

Setting aside the constitutional arguments, Speaker Gideon said if the law saved “just one life” it would be worth it.

A large part of the early testimony supporting the bill was focused on suicide prevention. In an interesting twist, Rep. Patricia Hymanson (D – York), the primary sponsor of the current physician assisted suicide legislation being considered by the Legislature’s Health and Human Services Committee took the opportunity to testify in favor of the red flag legislation. Rep. Hymanson’s testimony in support of the proposal was because she wants to try to cut down on suicides in Maine.

Rep. Jeff Hanley (R – Pittston) testified in opposition to the proposal, saying that sending law enforcement to someone’s door that hasn’t committed a crime, but would be committing a crime if they didn’t do what they were told was a non-starter.

Hanley also pointed out that the first time a person would know they were being accused would be when law enforcement knocked on their door.

“George Orwell is spinning in his grave that he didn’t think of this for his book Nineteen Eighty-Four,” said Hanley. “All kinds of blind spots in this legislation.”

Asked about the shooting of a Maryland man during a red flag confiscation, Hanley pointed out that the man had violated no law when law enforcement officers knocked on his door at 5 AM.

One Democratic lawmaker on the committee pushed back, saying her “recollection” of that incident was that the man in Maryland who was shot by law enforcement during the execution of a confiscation order at 5 am. The man, she said, refused to turn over his guns, which meant that he was in fact “violating the law” when he was shot.

Senator Stacey Guerin (R – Penobscot) said in her experience that the committee’s decision should be the same as in the past, “That confiscation of legally held firearms is unconstitutional.” Senator Guerin’s position was echoed by numerous people in Augusta to oppose the bill.

“Sounds more like a system out of Philip K. Dick’s Minority Report than it does an American system,” said Hon. Eric Brakey, the founder of the Free Maine Campaign and former state senator who sponsored Maine’s successful Constitutional Carry law in 2015.

Minority Report was a science fiction book that was turned into a movie starring Tom Cruise in which law enforcement developed a system to arrest and punish people for pre-crimes, or crimes they had yet to commit.

Colleen Oliver, a citizen from Bath, testified that L.D. 1312 “allows laymen to accuse people of ‘potential’ violent crime,” and that the bill removes due process.

Sheriff Scott Nichols of Franklin County testified in opposition to the bill, saying he had Aroostook County Sheriff Shawn Gillen and Kennebec County Sheriff Ken Mason with him.

Sheriff Nichols told the committee that their opinion is that the proposal asks law enforcement to confiscate guns without an underlying crime but based on a “potential crime” that might happen in the future.

Sheriff Nichols also said the red flag bill would violate multiple constitutional rights, naming the Second, Fourth and Fifth Amendments to the United States Constitution.

All three sheriffs opposed the bill, but Nichols also asked if law enforcement should be forced to confiscate alcohol from people because Maine has a big problem with deaths from drinking and driving.

Sheriff Nichols also said that both the proposed legislation and protection from abuse orders “scare him to death” because they put the lives of officers and members of the public in danger.

“We do not want to get shot. We do not want to shoot someone,” he said.

He also said the proposal was “subject to abuse” and that it would be more dangerous to people who are in crisis.

But Senator Mike Carpenter (D – Aroostook) compared the ability to seize someone’s guns under the proposal to the police catching someone in the process of committing a crime in a line of questioning about due process to Sheriff Nichols.

Asked by Rep. John Deveau (R – Caribou) how he felt about the safety of his officers executing red flag confiscations, Sheriff Nichols said he believes his officers would be put at risk under L.D. 1312.

Sheriff Shawn Gillen said additional help through mental health facilities would be part of an actual solution to the problem the bill seeks to address more than the bill that was being proposed, which he said could cause more harm than good.

Other law enforcement representatives, mostly from larger Maine communities, testified in support of the bill.

Citizens testifying in support of L.D. 1312 largely focused on gun violence and Maine’s suicide rate. Many supporters of the bill said they were also members of gun owning households.

Supporters often testified that the bill doesprovide due process and said it balances the need to confiscate guns from individuals with the due process protections in the bill.

Early in the testimony supporting the legislation, some supporters of the red flag bill identified themselves as being affiliated with Moms Demand Action, a gun control group financed by the former Mayor of New York, billionaire Michael Bloomberg.

Numerous references to suicide by veterans of the United States Military were offered as a reason to pass the bill.

A legislative analyst for Maine’s Judiciary System, Julia Finn, attended the hearing to tell the committee that the Judiciary feels that if the bill moves forward, lawmakers should amend the language to enumerate criteria for judges to use in issuing orders under the law. Finn also and that language needs to be added around the parts of the law that cover storage or firearms and what law enforcement agencies will execute the confiscations.

The Maine House Republicans released a statement in opposition to the bill, saying they, “oppose unconstitutional infringements on Second Amendment Rights. The bill creates a new class of protective orders that target only the possession and control of firearms.”

In the hour before the public hearing began, a group of Maine gun owners held a “rally for our rights” outside the state house, with several elected officials speaking to the crowd. That event was led by Hon. Eric Brakey.

Testimony from supporters and opponents of L.D. 1312 to the committee continued into the evening hours of Monday, with the committee alternating between groups of supporters and opponents. By the time testimony had wrapped up, the Judiciary Committee heard more than nine hours of testimony on L.D. 1312.

The proposal will have at least one work session in the Judiciary Committee before it will be sent to the Maine House and Senate for consideration. The date of the work session had not yet been announced as of the publication of this article.

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