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One Year After Lewiston, What Might Help Prevent a Repeat?

One Year After Lewiston, What Might Help Prevent a Repeat?

Posted by Ed Folsom, October 24, 2024

As the one-year mark approaches since Robert Card murdered 18 people and wounded 13 others on October 25, 2023, in Lewiston, what have we learned that might help prevent a repeat?

We learned that Card’s stay in a New York Psychiatric hospital in July and August of 2023 did not legally bar him from possessing firearms.

The Independent Commission to Investigate the Facts of the Tragedy in Lewiston determined that Card was not prohibited by federal law from possessing firearms because of his stay at New York’s Four Winds psychiatric facility from July 16, 2023 to August 3, 2023. If Card had been involuntarily committed to the facility, he would have been prohibited from possession a firearm, and authorities would have dropped the ball by failing to enforce the prohibition against him well before October 25, 2023.

As discussed here, the military has, in the past, failed to report disqualifying information about service members to civilian authorities. In 2017, Devin Patrick Kelley shot 26 people to death at a church in Sutherland, Texas. Kelley was convicted of domestic violence while in the U.S. Air Force — a conviction that disqualified him from possessing firearms. The Air Force failed to communicate Kelley’s conviction to civilian authorities, which allowed Kelley to purchase the gun he used to commit his murders.

Robert Card was turned down for the purchase of a silencer at a Maine gun shop on August 5, 2024, when he checked the “yes” box on the federal firearms form indicating he had been involuntarily committed to a mental institution. This raised the question of whether Card had in fact been involuntarily committed. The Independent Commission determined that Card “had not been ‘committed’ as defined under federal law.” Card was mistaken about his status when he checked the box on the federal form. He was not legally barred from possessing firearms on October 25, 2023.

We learned that Maine’s so-called “yellow flag” law, itself, was not the problem.

Maine’s “yellow flag” law, enacted in 2020, allows a law enforcement officer to initiate a proceeding for an order that bars a person from possessing firearms based on a finding that the person poses a substantial risk of serious physical harm to self or others. In early September of this year, Governor Mills was reporting that in the slightly more than 10 months since Card’s mass murders, Maine police agencies had used the yellow flag law 15 times more frequently than they used it in the entire 3 years leading up to October 25, 2023. During Maine’s most recent legislative session, the Legislature tweaked the law to make it easier to use. But that isn’t the reason the law has been used so much more frequently in the past 10 months.

At the end of November 2023 – about a month after Card’s shootings — ABC News reported that Maine police had already used the yellow flag law 36 times after October 25, 2023. That was more times than the law was used during each of the years 2020, 2021 and 2022 (The story says 36 times is more than the statute was used in 2020-2021 “combined,” but this is not accurate). In the wake of Card’s crimes, police agencies immediately began encouraging and training officers to use a law that had largely lain dormant to that point. In other words, the chief problem with the yellow flag law was not so much the difficulty of using it but the lack of motivation to use it.

Maine prosecutors realized that Maine’s terrorizing statute, which makes it a crime to threaten to kill other people, was constitutionally defective and required a statutory fix to be enforceable.

Maine prosecutors discovered that there was a constitutional defect in Maine’s terrorizing statute that made it unenforceable (as discussed here). The defect was made evident on June 27, 2023, when the U.S. Supreme Court issued its decision in Counterman v. Colorado. In Counterman, the Supreme Court declared that the U.S. Constitution requires the government to prove a particular state of mind element when prosecuting a “true threat” case, — that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. Maine’s terrorizing statute did not require proof of this state of mind, so the statute needed to be fixed.

For as long as the constitutional defect continued to exist, Maine prosecutors were unable to successfully prosecute a terrorizing charge based on credible threats to, say, shoot up an Army Reserve base, or to shoot up a school or any other place. The Legislature enacted a bill to remedy the constitutional defect that went into effect on March 6, 2024. This left Maine’s terrorizing statute constitutionally defective for slightly more than 8 months after Counterman was handed down. Now, it is once again possible to successfully prosecute a person for terrorizing and to set bail conditions that include the surrender of weapons when the person credibly threatens to kill a bunch of people, whatever particular phraseology the person might have chosen to communicate the threat.

But in a case like Robert Card’s, would police now arrest the perpetrator on a terrorizing charge for threatening to shoot up an Army Reserve base, or on an assault charge for punching his friend in the face? Would police make the effort, the next time, to try to speak to the person who was punched in the face and who heard the threat? Or would they once again be inclined to view the behavior primarily as a mental health issue?

We know that the police in Card’s case made no effort to pursue his arrest on criminal charges. We also know that the Independent commission found in its Interim Report

[T]hat law enforcement had more than sufficient information to pursue criminal assault charges against Mr. Card. Further investigation would have determined in which county the charge should have been brought. Had they done so, an arrest warrant could have been secured and Mr. Card could have been taken into custody. The prosecutor could then have requested bail conditions that prohibited Mr. Card’s ownership or possession of firearms.

Sgt. Hodgson had reported being assaulted by Mr. Card in September and had also reported Mr. Card’s comments about ‘shooting up the Armory.’ An interview of Sgt. Hodgson would have revealed where this occurred and then where the charges should have been brought.

For some reason, though, these conclusions did not appear in the Independent Commission’s final report which emphasized the police failure to use the civil process afforded by Maine’s yellow flag law. This is true even though the factual findings in the final report leave no doubt that Card was in fact reported to have punched his friend, Hodgson, in the face and to have specifically threatened to “shoot up” the Saco Army Reserve Center. Here are the pertinent factual findings from the Timeline section of the final report:

09/13/2023 02:04 Hodgson called Reamer to report that Card assaulted him after leaving the Oxford Casino, that Card had guns, and was going to “shoot up” the Saco AR facility. Reamer took no action and did not report this conversation to anyone else in the AR. Later that day, Hodgson told Reed about the assault.

09/15/2023 02:30 Hodgson sent text messages to Reamer and Mote reporting that Card assaulted him after leaving the casino, that Card had guns, and was going to “shoot up” the Saco AR facility.

09/15/2023 Hodgson spoke to Reamer and also Mote to report that Card assaulted him after leaving the casino, that Card had guns, and was going to “shoot up” the Saco AR facility. Reamer reviewed the situation with Lt. Col. Vazquez and Sergeant Major Tlumac. Card’s commanders decided to ask local law enforcement to do a “well-being” check on Card.

09/15/2023 14:38 Sagadahoc County Sgt. Aaron Skolfield conferred with Bagley, who provided a summary of longstanding concerns about Card’s mental health, including the confrontation between Card and Hodgson the night of 9/13-9/14/2023, Card’s threat to “shoot up” the Saco AR facility, and Card’s hospital commitment for two weeks earlier in the summer. Bagley  requested that the Sheriff’s Office conduct a “welfare check” on Card, who was hearing voices calling him a pedophile. Bagley said he would email Skolfield a document prepared by Mote regarding concerns about Card’s behavior and the need for a mental health evaluation to determine if Card was dangerous to himself or others. Mote’s report summarized the relevant events for use as the basis for a yellow flag petition and requested that the SCSO conduct a well-being check “to gauge his mental health and determine if he is a threat to himself and/or others.”

Hodgson’s text to Mote was also attached:

Change the passcode to the unit gate and be armed if sfc card does arrive. Please. I believe he is messed up in the head. And threaten the unit other and other places. I love to death but do not know how to help him and he refuses to get help or continue help. I’m afraid he’s going to fuck up his life from hearing things he thinks he heard. When I dropped him off, he was concerned his weapons were still in the car. I believe they were at the unit. And no one searched his vehicle on federal property. And yes he still has all his weapons. I’m not there I’m at my own place. I believe he is going to snap and do a mass shooting.

So, why did the Independent Commission de-emphasize the criminal aspect of Card’s behavior in September of 2023 in its final report, and instead focus on Card’s mental health issues and on the civil, yellow flag process? When a mentally ill person credibly threatens deadly violence or commits criminally violent acts against others, is it wise to prioritize a focus on the person’s mental health, or should law enforcement’s primary focus be on the criminality of the behavior and the immediate risk to public safety?

The Frontline (PBS)/Maine Sunday Telegram story on Maine’s Progressive Treatment Program as it relates to Robert Card.

Maine has had a so-called Progressive Treatment Program (PTP) statute in effect for more than 20 years. The current version has been in effect for 14 years. This statute allows people to be forced to receive community-based mental health treatment if they are assessed as dangerous, suffering from persistent mental illness, and unlikely to voluntarily follow a treatment plan. According to an October 20, 2024 Maine Sunday Telegram story, written in collaboration with Frontline (PBS) and Maine Public, the PTP process, when used, has almost exclusively been initiated by mental health professionals, even though the statute allows law enforcement officers to initiate it. Most police officers are not even aware that it exists.

Sagadahoc County Sheriff’s Department Sgt. Aaron Skolfield, who abandoned his attempts to contact Card regarding Card’s reported threat against the Saco Army Reserve Center in September of 2023, was not aware that the process existed. But, by its terms, the PTP statute might have been used to force Robert Card to receive mental health treatment after his release from New York’s Four Winds mental health facility, when Card refused to comply with his treatment plan.

The Sunday Telegram story deals in part with arguments raised against using the PTP statute. After all, the process involves having the government force people to receive mental health treatment that they do not want. Here’s how one advocate for the rights of the mentally ill put things:

“We knew the narrative was going to be ‘crazy person off their meds,” and not one of the many other root causes of violence including widespread access to guns, said Carlene Mahaffey, a member of Maine’s Intentional Peer Support Advisory Committee and advocate for the rights of patients with serious mental illnesses. “That’s not what we’re talking about here. We’re talking about realizing the reality that forced treatment, a majority of time, doesn’t work.”

The story also contains these passages:

[S]keptics say there’s little evidence that involuntary treatment programs improve public safety.

A 2018 analysis published by the FBI found that only 25% of active shooters in the U.S. between 2000 and 2013 had been diagnosed with a mental illness, and only three of the 63 shooters studied had been diagnosed with a psychotic disorder.

Given that the vast majority of patients with serious mental illnesses never become violent, advocates say they should have the right to decide whether to follow the advice of their doctors, just like smokers or others with unhealthy habits.

In this view, because the vast majority of people with mental illness don’t become violent — and more particularly don’t commit mass shootings — it unjustifiably infringes the individual freedoms of mentally ill people to order masses of them to accept unwanted treatment to guard against the possibility that a very small number might commit violence, including mass shootings. But this is a matter for public policy makers and for the courts that determine whether policy makers have gone too far and have violated the constitution. It is not a matter that a cop on the beat should be concerned with when faced with a mentally ill person threatening violence. In that concrete instance, the cop’s number one, and possibly only, concern should be ensuring the public’s safety.

Is the Progressive Treatment Program a tool at the disposal of a police officer faced with a mentally ill person, off his meds, who is threatening to shoot up the town? Not unless the cop is at least aware of the PTP. But even if the cop is aware of it, there are other tools that are much more immediately available to address such emergent public safety threats than a process designed to force a mentally ill person to take prescribed medications — specifically, an arrest for terrorizing and/or the pursuit of a yellow flag procedure for seizure of the person’s weapons.

In the longer run, the officer might choose to augment an arrest or a yellow flag procedure with a PTP process that forces outpatient compliance with mental health treatment. But things get a little murky there.

When a mentally ill person commits a crime that threatens violence against the public, why shouldn’t the police focus be on the criminality of the behavior first and foremost?

As a matter of immediate public safety, isn’t it better for police officers to first view criminal threats and violent acts committed by the mentally ill as criminal threats to the public safety rather than as mental health issues? Whenever police officers fail to address criminal threats to the public safety primarily as crimes, and instead address them primarily as matters of mental illness, they risk being pulled down public policy rabbit holes, placing public safety at needless risk – Very few mentally ill people are violent! Stop stigmatizing mental illness by associating it with violence! we are repeatedly told.

People who are mentally ill tend to evoke sympathy because of their mentally illness. They evoke sympathy from police officers just as they evoke sympathy from everyone else, maybe more so because police officers often deal with family members who convey the torture of the person’s condition to them. No police officer is eager to drag a mentally ill person into the criminal justice system. But how much should we allow the reluctance of police to drag a mentally ill person into the criminal justice system to undermine public safety, when the mentally ill person threatens public safety in a criminal way?

In the Sunday Telegram’s PTP story, District Attorney Natasha Irving commented on what she views as Maine’s failing mental health system. Irving’s prosecutorial district includes Sagadahoc County, where Sagadahoc County S.O.’s Sgt. Skolfield attempted and then abandoned his attempts to contact Robert Card in September of 2023, after Card threatened to shoot up the Saco Army Reserve Center. Here’s how the story reports some of what Irving had to say:

Natasha Irving says she regularly sees the consequences of a failing mental health system as the district attorney of several Maine counties, including Sagadahoc, where Card lived. This spring, she publicly criticized a Rockport hospital after doctors discharged a 23-year-old woman who had threatened to kill a family member with a gun and a screwdriver.

To Irving’s team, it seemed clear that the woman belonged in a hospital, not jail. But when doctors declined to pursue a court order to commit her, Irving felt that she had no choice but to arrest her for domestic assault and terrorizing just to protect the community.

According to Irving, the case is just one example of a pattern she regularly sees: people with mental illnesses put themselves or others in serious danger or otherwise cause problems in the community, get picked up by police and brought to the hospital, receive immediate stabilizing treatment, then walk out and begin the cycle again.

Only when they succeed in hurting someone can law enforcement intervene. That outcome fails the public and the patient, Irving said.

First, law enforcement does not have to wait until someone gets hurt to intervene if the person has committed a terrorizing offense. When the person makes threats that constitute terrorizing, law enforcement can intervene by arresting the person before someone actually gets hurt. So why wouldn’t they?

In the case Irving describes, she obviously saw the matter primarily as one of mental health, not of criminal justice. Her initial response shows sympathy toward the woman and her mental illness. The 23-year-old woman needed help for her mental illness, not to be locked up in jail. Only when doctors refused to hold the woman involuntarily for psychiatric treatment did Irving reluctantly choose to have police arrest her for domestic assault and terrorizing “just to protect the community.” Just to protect the community, that’s all.

Irving got involved in the matter very early on. Police seldom call the D.A. to consult on whether they should arrest someone or not. Here, the officer took the woman to a hospital and tried to have her held for inpatient treatment. Irving was informed of the matter early enough in the process to either issue a complaint for domestic violence assault and terrorizing, leading to issuance of an arrest warrant, or to direct an officer to conduct a warrantless arrest when the woman was released from the hospital.

Police agencies operate under a policy dictating that when there is probable cause to believe a domestic violence assault has been committed, the perpetrator must be arrested, period. Here, that did not happen until Irving decided she had no choice but to have the woman arrested to protect the public.

Would Irving eventually have charged the woman with domestic violence assault and terrorizing if the hospital had kept the woman for inpatient care? If so, would Irving have had the woman arrested on those charges upon her release from the hospital, or would she merely have had the woman summonsed? What if Irving had decided not to charge the woman, and soon after the woman was released from the hospital, she picked up a gun or a knife and shot or stabbed a few people to death?

If Irving’s first impulse had been to have the 23-year-old woman arrested for the domestic violence crimes, the woman could have been released on bail with conditions to comply with mental health treatment, not to possess any firearms or other dangerous weapons, and to submit to searches and chemical tests to determine whether she was complying. Conditions like that run interference with a person’s ability to commit further acts of violence and address mental illness concerns.

But out of sympathy and compassion, Irving’s first impulse was to attribute the woman’s criminal conduct to mental illness and to respond to it with a mental health focus. That can be dangerous. It was definitely dangerous in Robert Card’s case.

At least Irving had the 23-year-old woman arrested for domestic violence assault and terrorizing when the inpatient treatment plan fell through. In Card’s case, the entire law enforcement focus remained on his mental health, to the extent that the police never even attempted to speak to Card’s assault victim/witness to Card’s terrorizing. Police failed to conduct any investigation that might have led to Card’s arrest and the imposition of bail conditions requiring mental health treatment and the surrender of his weapons.

In domestic violence cases, such as the one involving the 23-year-old woman, police act under a mandatory arrest policy, put in place by policy-makers who chose to remove police discretion in domestic violence matters. Although very few people who are charged with domestic violence assault ever commit murder, the powers that be have decided that everyone as to whom probable cause exists for an arrest must be arrested, in part because domestic violence murders make up a significant percentage of all the murders that are committed in Maine.

Maybe the policy makers should consider tightening up law enforcement’s discretion to focus on mental health rather than the criminal component when mentally ill people threaten the public with criminal violence. And just because police arrest a person, and then the D.A. brings charges and bail conditions are set, doesn’t mean that the D.A. is then required to pursue a conviction. For instance, D.A.’s can enter into deferred disposition agreements that allow defendants to earn a dismissal by staying out of trouble and following conditions such as compliance with mental health treatment. Mental health concerns for those defendants who are both violent and mentally ill can still be addressed.

So why does law enforcement sometimes continue to prioritize mental health concerns over the public danger presented by people who threaten to commit, or do commit violent crimes and who happen to be mentally ill? Is that a formula for the next big avoidable disaster?

It appears that before October 25, 2023, quite a few people felt sympathy toward Robert Card and his mental illness. It even looks like some of them who are police officers shielded Card from legal trouble while Card was acting out and threatening criminal violence. After October 25, 2023, there are very few people whose sympathies are with Robert Card.

Is there something to be learned from that?