Robert Card: Yellow Flags, Red Flags and Section 922(g).
Posted by Ed Folsom, November 16, 2023.
Maine Governor Janet Mills has appointed an independent commission to investigate the how and why behind Robert Card’s October 25 mass-murder of 18 people in Lewiston. Meanwhile, some people are focused on whether Maine’s so-called yellow flag law is a sufficient means to remove firearms from the hands of those who are presently dangerous to themselves or others, or whether a red flag law is necessary instead. Before a person’s firearms may be seized under Maine’s yellow flag law, the person must be taken into protective custody by police and examined by a mental health professional. Red flag laws allow firearms seizures without those hurdles. But, based on what we know so far, it’s very possible that Card’s firearms could have been seized without either a red or a yellow flag law, based on prohibited person status under 18 U.S.C. section 922(g)(4).
Section 922(g)(4) prohibits anyone from possessing a firearm or ammunition who has been “committed to a mental institution.” In July of 2023, Robert Card spent 14 days in the Four Winds Psychiatric Hospital in Katonah, New York, near West Point where he was doing Army Reserve duty. According to some news reports, Card did not submit willingly. In other words, it looks like his stay might have resulted from an involuntary commitment. And if that’s the case, we should be asking why that didn’t result in him being charged in federal court with possession of a firearm by a prohibited person, under section 922(g)(4), with his firearms searched for and seized in that connection.
From July onward, Card repeatedly expressed delusions that people around him were talking about him, saying he was a sex offender. Card’s ex-wife, son, and colleagues from the Army reserve reported his deteriorating mental health and potential for violence to the police. At one point, Card threatened to “shoot up” the Army Reserve center in Saco. One of Card’s Army Reserve friends reported up the chain of command that he feared Card was going to do a “mass shooting.” This was also reported to police. It’s around this point in the story that the yellow flag versus red flag debate comes in.
Police went to Card’s residence to try to talk to him, but they couldn’t get him to answer his door. They had no court order to take him into custody or to seize his firearms, so they lacked that basis for action. People who claim that this shows the need for a red flag law seem to think that a red flag would have caused police to seize Card’s firearms because they wouldn’t have had to take him into custody and have him examined by a mental health professional beforehand. But did the fact that Maine doesn’t have a red flag law really render the authorities helpless?
Yellow versus red flags aside, if Card had been arrested for committing a crime, a bail commissioner or judge could have set bail conditions that prohibited him from possessing firearms and required him to surrender the ones he had. What crime might Card have been arrested for? The friend who reported that he thought Card would do a mass shooting also told his commanding officer that Card punched him in the face here in Maine, which is assault, so there’s that. But the friend probably wanted nothing to do with Card being prosecuted for the assault.
How about terrorizing? Under Maine law, communicating a threat to commit a crime of violence dangerous to human life is a Class D crime if the natural and probable consequence of the threat is to place the threatened person or the person to whom the threat is communicated in reasonable fear that the crime will be committed. Again, maybe the police wouldn’t have been able to get Card’s friend, to whom the threat to shoot-up the Army Reserve Center was communicated, to cooperate. But, did anyone even try? After all, the friend specifically told his commanding officer in the Army Reserve that he was afraid Card was going to do a mass shooting. Maybe the police could have exploited such a serious fear and run far enough with it to get an arrest warrant for Card on a terrorizing charge. In fact, the Army Reserve did pass the threat along to the police, and the police did try to talk to Card. But there’s no indication that police attempted to secure an arrest warrant for terrorizing based on Card’s mass shooting threats.
Getting back to 18 U.S.C. section 922(g)(4), what if Card’s 2-week stay at the Four Winds Psychiatric Hospital in July was the result of an involuntary commitment? That would have made Card a prohibited person, unable to legally possess firearms or ammunition under 18 U.S.C. section 922(g)(4). And that means that any evidence that Card possessed a firearm or ammunition after that point was evidence that card had committed a federal felony. There’s no doubt that Card’s family and friends reported to police that Card in fact had multiple firearms in his home at that time. Which means that very reliable sources were reporting information to police that amounted to probable cause to believe that Card was violating section 922(g), if Card was in fact involuntarily committed to Four Winds and if the police knew about the commitment. So, what did the police know about the commitment?
Card, himself, apparently believed he had been committed involuntarily. According to an ABC news story, Card attempted to buy a silencer from a local gun store three months before he committed the mass-murder. The gun shop owner turned Card down because of Card’s answer on the firearms transaction form regarding any mental health commitment. That question, section 21(g) on the form, is phrased to reflect the prohibition in section 18 U.S.C. section 922(g)(4), as follows: “Have you ever been adjudicated as a mental defective OR have you ever been committed to a mental institution?”
Of course, Card’s belief that his July stay at Four Winds was an involuntary commitment could have been mistaken. But, according to the ABC News story, Card did let others know that he believed he was no longer allowed to buy firearms because of that stay. And 18 U.S.C. section 922(g)(4) doesn’t just bar a person from buying a firearm after an involuntary commitment. It also bars a person from possessing any firearm or ammunition that the person already owns or might otherwise come to possess.
Maybe it was just the fact that the gun store turned Card down for a silencer based on his answer to the form that caused Card to believe he could no longer purchase firearms. Maybe he didn’t believe that he was barred from possessing firearms he already owned. But, according to an AP News story, a fellow Army reservist wrote a letter to a Sagadahoc County Sheriff’s deputy sometime before September 15, telling the deputy that Card in fact believed he was barred from purchasing firearms because of his stay at Four Winds. The letter writer told the deputy that Card believed that the writer was the reason that “[Card] can’t buy guns anymore because of the commitment.” And, the author of the letter informed the deputy that Card had threatened to shoot up the Army Reserve Center in Saco. That sure looks like reason to probe the nature of Card’s commitment, to explore the possibility of a terrorizing charge with accompanying arrest and seizure of firearms, and to explore a felony charge of possession of a firearm by a prohibited person with accompanying arrest and seizure of firearms.
After Card’s mass-murder, the ATF released a statement saying that there was nothing in Card’s record that would have prevented him from purchasing a firearm. But is that because Card was not in fact prohibited from purchasing or possessing firearms, or is it only because the fact that Card was prohibited from purchasing or possession them didn’t make it into the ATF’s records?
Back in November of 2017, Devin Patrick Kelley went to a church in Sutherland Springs, Texas, and shot 26 people to death. Kelley had previously been discharged less than honorably (though not quite dishonorably) from the U.S. Air Force. He had also escaped from a mental health facility and been convicted of domestic violence assault involving his wife and stepson. A dishonorable military discharge causes a person to be barred from possessing and purchasing firearms under 18 U.S.C. section 922(g)(6). As we have seen, an involuntary commitment results in a bar under section 922(g)(4). A conviction of domestic violence assault results in a bar under section 922(g)(9). The last one – the domestic violence conviction – was a clear disqualifier for Kelly, barring him from possessing firearms or ammunition evermore. But because the Air Force failed to report the domestic violence conviction to the FBI, the disqualifier never made it into the record that would have disabled him from purchasing a firearm. Kelly bought a firearm and used it to commit the mass-murder (see here). Was there a similar communication failure in Card’s case?
As for Kelley’s escape from a mental health facility, I don’t find any reporting as to whether he was there on an involuntary commitment or not. But early news on Kelly’s mass-murder spree reported that he had received a dishonorable military discharge. As it turned out, he actually received another form of discharge, not honorable but not quite dishonorable, that didn’t bar him from buying a firearm under section 922(g)(6). In the wake of the initial confusion and finger-pointing at the military regarding the discharge, the military reported a batch of 4,000 dishonorable discharges to the FBI in the 3 months following Kelley’s murder spree that they had not previously reported (story here). In other words, there were at least 4,000 dishonorably discharged people barred from possessing or purchasing firearms whose records did not reflect it until frantic butt-covering kicked into gear.
In Robert Card’s case, we really ought to know whether his stay at the Four Winds facility this past July was an involuntary commitment or not. If it was involuntary, the difference between yellow and red flag laws doesn’t matter here. And if Card’s hospital stay wasn’t an involuntary commitment, or if it was an involuntary commitment but an exception applied that caused Card not to be barred under section 922(g)(4), we should know the particulars of why. For exactly what reason was a guy who was hospitalized for 2 weeks after expressing delusions and shoving a fellow reservist, who continued to be delusional and who expressed homicidal ideation fairly continuously thereafter until he murdered 18 people, not barred from possessing firearms under section 922(g)? The answers might point to a problem much larger and more immediate than the possible shortcomings of Maine’s yellow flag law.
