May 15—To reach a suicide prevention hotline, call 888-568-1112 or 800-273-TALK (8255), or visit www.suicidepreventionlifeline.org
When his brother-in-law talked about taking his own life this past winter, Brian Dunnigan took him seriously. He knew that Shaun Simmons owned a Sig Sauer 9 mm handgun, even though he had never seen it, and he knew that his brother-in-law was drinking heavily.
On Feb. 21 around 3 p.m., Dunnigan, 61, called the Wells Police Department hoping to get officers to use Maine's "red flag" law, which the Legislature approved in 2019, to confiscate Simmons' weapon. Dunnigan claims officers refused to act on his request.
At about 3:30 p.m. on March 14, Simmons, 57, shot his mother's 71-year-old boyfriend in the chest and then turned the gun on himself, according to police, in the Wells home he shared with her. William Ness of Wells survived but is still in a rehabilitation facility, not yet well enough to return home, according to Dunnigan.
Dunnigan believes the tragedy could have been avoided if police officers used Maine's red flag law to confiscate Simmons' gun. But the law requires that there be an imminent threat of danger, which limits what steps police can take when they are told that someone who owns a firearm has previously talked about harming themselves.
Wells police Capt. Kevin Chabot confirmed that prior to the shooting, Dunnigan called the department to ask about Maine's red flag law and spoke with a police officer. Chabot released a transcript this week of the 911 call but not the notes from the officer's conversation with Dunnigan.
According to the transcript, Dunnigan told the dispatcher that Simmons frequently threatened to commit suicide but, when the dispatcher asked if the threat was "happening right now," Dunnigan told him it was not.
"There was not an imminent threat, so we could not take action," Chabot said Monday. "What happened with Mr. Simmons was regrettable and we wish we could have changed what happened but we can only act within the letter of the law."
Police and prosecutors have used the law 17 times since it took effect on July 1, 2020, taking people in crisis into protective custody to start the process of determining whether "whether the person presents a likelihood of foreseeable harm" and whether their weapons should be confiscated in an effort to reduce that harm, according to the statute.
When the bill was being considered in the Legislature, it frequently was referred to as a "yellow flag" law to differentiate it from states where red flag laws allow family and friends to petition a judge directly to seize dangerous weapons. Maine's law does not allow family and friends to directly petition a judge to have someone's firearms confiscated.
"We wanted to put people in the path of care in that moment of crisis before there was an escalation of behavior," said state Sen. Lisa Keim, R-Dixfield, who sponsored Maine's bill with then-Sen. Mike Carpenter, D-Houlton.
Maine's law also says that officers must have probable cause to take action, according to Maine State Police Lt. Michael Johnston, who has trained troopers and law enforcement officers on using the law.
"When formulating probable cause, the law enforcement officer may rely upon information provided by a third-party informant if the officer confirms that the informant has reason to believe, based upon the informant's recent personal observations of or conversations with a person, that the person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons," the state law says.
In Maine, if police establish that someone poses an imminent threat of harm to themselves or others, the new law permits police and prosecutors to seek a judge's permission to confiscate that person's guns — as long as a medical professional has agreed that the person "presents a likelihood of foreseeable harm." The law also allows a judge to bar those people from purchasing guns for a year. Defendants may petition a judge to return weapons that have been seized when the ban expires.
In the 17 cases in Maine since last summer in which a person has been taken into protective custody, more than a dozen involved threats of suicide while the rest involved possible delusional behavior and threats to other people. Some involved standoffs with police, firing a gun at or near other people, or actively displaying a weapon in a suicide threat.
The most recent use of the law occurred in Wells on March 25, barely two weeks after Simmons shot Ness and himself. In the more recent situation, Wells police sought to bar a man from possessing firearms after he shot himself in the chest and told police, "I'm just tired of living," according to the attorney general's office.
This past winter, after Dunnigan's brother-in-law threatened to kill himself, Dunnigan said he considered trying to get him involuntarily committed to a psychiatric hospital under Maine's medical "blue paper" process, but felt it would be too cumbersome and, ultimately, unsuccessful.
After reading Maine's "red flag" statute, he hoped it could help prevent his brother-in-law from harming himself. Dunnigan even considered taking the gun away himself, he said, but was told by police that he could face legal consequences if he did. Dunnigan has an excessive force lawsuit against the York County Jail pending in U.S. District Court in Portland, alleging that a corrections officer used a stun gun on him 57 times while he was incarcerated in February 2018 on a disorderly conduct charge that was later dropped.
After the shooting, Dunnigan reached out through his state senator to the Maine attorney general's office but was told by Brian MacMaster, an investigator in that office, that whether to use the red flag law or not was a decision left to local police.
Maine's red flag law is a less expansive version of similar laws that have been enacted in at least 20 states and Washington, D.C. Many of them have been adopted as a policy response to the 2018 school shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
In Indiana, a red flag law there failed to prevent a mass shooting last month when a 19-year-old man shot and killed eight people at a FedEx facility in Indianapolis before killing himself.
The FBI had questioned the shooter, Brandon Scott Hole, last year after his mother called police to say her son might commit "suicide by cop." Officers seized a pump-action shotgun from Hole's home after responding to the call, but the prosecutor there did not take the case to a judge to prevent Hole from purchasing the weapons he used in last month's rampage.
In spite of that incident, the law has been effective in reducing suicides in Indiana, according to a University of Indianapolis study. Researchers there found that there was a 7.5 percent decrease in firearm-related suicides in the decade after the law's passage in 2005. In Indianapolis alone, more than 400 people were subject to the law from 2006 to 2013, the study said.
Changes to red flag laws in Maine, Indiana, Florida, California, Connecticut and other states could become a federal matter. A week before the FedEx shooting, President Joe Biden asked Congress for a national red flag law similar to one introduced two years ago that later died in Congress.
The bill would allow states to apply for grants to enact and implement red flag laws. That could be helpful in Maine, where law enforcement officials and prosecutors have said that using the law is time-consuming and resource-intensive, and where police have said the process of consulting a medical provider remotely to evaluate someone's mental state isn't set up yet.