Why Killer Robert Card Was Allowed to Keep his Guns

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(TNS) – Before Robert R. Card II killed 18 people in Lewiston, the U.S. Army deemed him to be such a risk that it forbade him from having weapons, handling ammunition, or participating in shooting drills while on military duty. But the Army’s safeguards did not carry over to the civilian world as the military was not required to invoke state laws that exist to protect the public.

What’s more, those state laws didn’t require people who knew about Card’s erratic behavior to act or had gaps that gave them so much discretion that Card continued to own guns — despite his delusions, paranoia and threats against other people and an Army Reserve facility in Saco — in the months before the mass shooting.

The Bangor Daily News discussed New York, Maine and federal law with lawyers who said that if statutes were written in slightly different ways or if institutions had opted to take more steps than were required of them, it is possible that police could have confiscated Card’s personal guns before he opened fire at a bowling alley and bar on Oct. 25, killing many within seconds.

In sharing their observations of missed opportunities to intervene, the lawyers pointed to potential areas of focus for policymakers.

“The tools that people in Maine have were inadequate,” said Josh Horwitz, the co-director of the Johns Hopkins Bloomberg School of Public Health’s Center for Gun Violence Solutions. “That’s by design. That was because of choices people made, and those people made the wrong choices, that’s clear.”

New York’s red flag law

Card spent about two weeks in a New York psychiatric hospital in the summer at the behest of the Army Reserve, but it appears no New York police or medical professionals triggered the state’s so-called red flag law — one of the strictest gun laws in the nation — to quickly petition a court to remove his personal weapons and prevent him from buying more.

While some lawyers were unsure whether New York’s law would have applied to Card, who lived in Maine and was only in New York temporarily, New York does in fact have a process in place to confiscate the guns of out-of-staters who pose a risk to others, Horwitz said. If the reservists who saw Card’s mental decline in the summer worried about his access to his personal guns, it’s not clear whether they knew about this possibility.

The military could have played a greater role. But New York law also does not give the military authority to start the red flag process itself, even when it deems its soldiers too risky to carry military guns and even when those soldiers are reservists who spend most of their time in their home state, not working for the military.

“If the military is saying, ‘Look, you’re too dangerous to have a weapon on base,’ maybe that should be some type of temporary prohibition. But right now it’s not,” Horwitz said.

The Army could have asked police or a district attorney in New York to start the court process to potentially take Card’s personal weapons on a temporary basis. But it appears it did not.

The Army did not answer a question about whether it has a practice of alerting police to jumpstart the process of confiscating soldiers’ personal weapons in states where red flag laws exist.

Under the red flag law, police and district attorneys in New York are required to petition for what is called an extreme risk protection order when they have credible information that someone is likely to cause serious harm.

“It’s a very, very effective tool for a police officer just to go immediately and take steps to prevent what could be a tragedy,” said Randy Zelin, a criminal defense lawyer in New York and an adjunct professor of law at Cornell Law School. “He’s in New York. He’s subject to New York law.”

If a judge had issued an extreme risk protection order, Card would have been prohibited from possessing guns and required to turn over his private firearms, even if those guns were in Maine, not New York, Horwitz said. New York law enforcement officers are even trained how to file an application for an order against someone from out of state.

Card had traveled to Camp Smith in New York on July 15 for the annual training of his Army Reserve unit, according to documents provided to Maine’s congressional delegation. Soldiers are not employed by the Army Reserve full time but can be called up to respond to conflicts and must be ready for combat.

After Card began acting erratically — falsely believing other soldiers were calling him a pedophile, shoving a friend and locking himself in his room, according to police reports — the Reserve brought him to see a psychologist at Keller Army Community Hospital at West Point who decided he needed further treatment.

He then went to a civilian psychiatric hospital, Four Winds, in Katonah, New York. The Army’s documents show it knew he was there on July 17 until he returned home to Maine on Aug. 3.

The Army itself could not have taken away Card’s personal guns, even though it took his military weapons. That’s because the military is expressly prohibited from confiscating soldiers’ guns off base.

The lack of authority stems from 2010 federal legislation that prohibited the U.S. Department of Defense and all military branches from “infringing on the individual right” of soldiers to legally obtain and possess private firearms.

In 2013, the law was amended to allow commanders and health care providers to ask soldiers questions about their personal guns if there are “reasonable grounds” to believe they are at risk of suicide or harming others. But the military cannot order soldiers to turn over their guns if the weapons are kept off military property.

Lt. Col. Ruth Castro, an Army spokesperson, said command may address a soldier’s concerning behavior by making a referral for a mental health evaluation, imposing military protective orders or reporting to military police or a local law enforcement agency.

Castro declined to say whether the military told local Maine police that it had prohibited Card from using military firearms, citing an ongoing Army investigation.

New York’s SAFE Act

In addition to its red flag law, New York has another law that could have provided some protection to Mainers: A state law requires mental health professionals to report patients they believe are likely to cause “serious harm to self or others” to a national database that prevents them from passing the background checks needed to buy guns from licensed dealers.

Given that federal law requires only a narrow list of people to be referred to the database, including those involuntarily committed by a judge, the SAFE Act, signed by then- New York Gov. Andrew Cuomo in 2013, was intended to prevent more people who threatened violence from purchasing a gun.

“The whole point of this new reporting requirement was to make it so that reporting could occur, even if someone was voluntarily committed, where there wouldn’t necessarily be a court order,” said Heather Cucolo, a professor at New York Law School.

Officials have said that Card’s name was not in the database. That means he was legally allowed to purchase firearms in the weeks before the mass shooting and that the mental health professionals who oversaw his care in a psychiatric hospital likely did not report him.

The Bureau of Alcohol, Tobacco, Firearms and Explosives said Card legally purchased guns “recently” but did not answer follow-up questions about when and where.

It is possible that the medical professionals who cared for Card did not view him as a safety risk under the SAFE Act. His medical information is confidential, and most people with mental illness are not violent, Cucolo said. Plus there remains a high bar to take away people’s legal guns.

“There has to be this imminent danger to self or others that is justified, recognized, concretely demonstrated,” Cucolo said.

It’s unclear whether Card was involuntarily committed, which would have prohibited him from buying or having a firearm under federal law. The Boston Globe has cited an unnamed hospital official as saying that Card was involuntarily committed, but Cucolo said it is unlikely that there was a judge’s order to commit him based on the timeline and emergency nature of his hospitalization.

Maine Department of Public Safety Commissioner Michael Sauschuck has said police have no information that Card was involuntarily committed. The Army also said it was unaware of anything in Card’s history that would have required Card to be referred to the national background check system.

Maine’s “yellow flag” law

Compared with New York, Maine’s so-called yellow flag law does not require police to start the process to temporarily remove someone’s weapons who they believe to be dangerous. And when they do start the yellow flag process, they must take more steps than are required of police in New York.

The deputies of the Sagadahoc County Sheriff’s Office, which serves Card’s hometown of Bowdoin, hypothetically could have but did not invoke the law.

“Our law is more discretionary. It allows an officer to pursue an order to confiscate the guns of a person in a mental health crisis, like Card was experiencing, but it does not mandate it,” said Christopher Uphouse with the law firm Eaton Peabody, who also represents the BDN.

Maine’s yellow flag law also imposes two burdensome requirements on police: to take someone into custody and to get that person a mental health evaluation, Horwitz said. That would have been difficult to do if Card didn’t want to talk to the police.

On Sept. 15, Army Reserve 1st Sgt. Kelvin Mote, who is also an Ellsworth police officer, asked the Sagadahoc County Sheriff’s Office to conduct a welfare check on Card after a fellow reservist had texted him a warning. The soldier, only identified as “Sgt. Hodsgon,” warned Mote that Card had threatened to shoot up the Saco Reserve center and pleaded with Mote to put security measures in place.

Sagadahoc County Deputy Aaron Skolfield went to Card’s address twice to check on him — once on Sept. 15 when Card wasn’t home and then again on Sept. 16.

On that day, Card “could be heard moving around inside the trailer but would not answer the door,” according to Skolfield’s report. So after speaking with Card’s Reserve commander, Skolfield made the decision to leave, having never contacted Card.

Instead, the following day, Skolfield reached Card’s brother who told the deputy that Card no longer had firearms in his home but could still access them at his parents’ house, according to Skolfield’s report. The deputy did not initiate Maine’s yellow flag law, instead leaving it to Card’s family to sort out.

Sagadahoc County Sheriff Joel Merry did not respond to a request for an interview with the BDN, but, in a statement released on Oct. 30, Merry said his office “acted appropriately” in deciding to leave Card alone. In an interview with the Portland Press Herald, Merry pointed to a lack of manpower, in addition to inadequacies with Maine’s yellow flag law that made it impossible for his deputy to use.

Horwitz agreed that Maine’s law is inadequate. Requiring a mental health evaluation before applying to temporarily confiscate someone’s guns makes police ask why someone might be making a threat instead of eliminating the threat first, he said.

Maine officers can only take someone into protective custody to start the yellow flag process when they have probable cause to believe that the person is mentally ill and, because of the condition, poses a likelihood of “serious harm.” They must then immediately arrange for the person to be examined by a medical practitioner.

“Here the person was clearly avoiding being taken in, avoiding interaction with law enforcement, but was able to have firearms,” Horwitz said. “In that situation, having a red flag law would be so helpful because you can prevent the further acquisition of firearms as well as have the legal basis to interact with someone and remove firearms.”

He and his team at Johns Hopkins created a model red flag policy, similar to a domestic violence protection order, that doesn’t consider someone’s mental health.

Similar to New York law, the model policy gives certain people, such as law enforcement, the authority to directly petition a judge who can decide whether to issue a temporary order barring someone from purchasing or possessing firearms. Then, at a full hearing later, the judge can hear more about the circumstances leading up to the threat, including someone’s mental health diagnoses and any treatment, to inform the decision to take someone’s weapons away for a set period of time, Horwitz said.

“We’re asking the judge to use their best judgment on whether this person is dangerous and not to opine on the cause. It might be a bad relationship breakup; it might be a job loss; it might be both of those combined with excess alcohol use,” Horwitz said. “That’s not mental illness. That’s just someone getting upset and pissed off.”

Horwitz said Maine’s yellow flag law places a burden on police to recognize when someone likely has a mental health condition, and it does not permit them to ask a judge to take away someone’s guns unless a condition exists, even if that person is a public safety threat.

“Maine law enforcement was at this guy’s house. They didn’t have the tools they needed. It’s great to talk about the systems,” he said. “But when push comes to shove, I want policymakers in Maine to understand that they can fix some of this.”