In the wake of the Lewiston mass shooting last week, legal experts are questioning whether the gunman’s threats and erratic behavior in the preceding months should have resulted in his arrest.
As more details emerge about Robert R. Card II’s past, some criminal justice observers said they believe his actions were enough to not only invoke Maine’s yellow flag law, which might have prevented him from having guns, but that police may have had probable cause to arrest him.
Their observations add to the growing list of questions about what law enforcement officers or the Army Reserve, where Card was a member, could have done to address the warning signs that Card was a credible threat to public safety before he committed the worst mass shooting in Maine’s modern history.
“There are so many red flags in this case. I haven’t seen anything quite like this since Nidal Malik Hasan shot up Fort Hood in 2009,” said Joshua Filler, a lawyer and consultant who runs Filler Security Strategies Inc. in Falmouth, helping law enforcement agencies prevent and respond to mass shootings and other attacks.
Hasan was sentenced to death for killing 13 people and wounding 32 others in Texas.
In recent months, a soldier who knew Card predicted that he would commit a mass shooting. When the soldier’s concerns were passed on to the Sagadahoc County Sheriff’s Office in September, Kelvin Mote, an Ellsworth police officer and a fellow reservist, added his own, saying Card was a capable marksman and requesting that the sheriff’s office check on Card at his home in Bowdoin.
Card had been hearing voices, Mote wrote in a letter recently released by the sheriff’s office. Card had also shoved a friend in the reserves, incorrectly believing the friend was calling him a pedophile. Mote and others helped hospitalize Card in New York in July.
“During the four hours I was with Card he never spoke, just stared through me without blinking,” Mote wrote.
About two months later, a soldier, referred to only as “Hodgson,” told Mote that Card had assaulted him, Mote wrote to the sheriff’s office, though it wasn’t clear where this happened.
“They were driving home from the casino when Card started talking about people calling him a pedophile again. When Hodgson told him to knock it off because he was going to get into trouble talking about shooting up places and people, Card punched him. Hodgson was able to get out of the car and made his own way home. According to Hodgson, Card said he has guns and is going to shoot up the drill center at Saco and other places,” Mote wrote to the sheriff’s office.
Both the Saco police and battalion commander, who also works as a police officer in New Hampshire, knew about Card’s threat against the Army Reserve center in Saco, Mote said. Saco Police Chief Jack Clements did not respond to a phone call from the Bangor Daily News.
Card also said he was going to get “them,” referring to the commander and Mote, since they had gotten him committed and were “the reason he can’t buy guns anymore because of the commitment,” Mote wrote.
While it’s possible that police determined Card was not making serious threats, it appears that police officers had probable cause to arrest Card for assault or terrorizing, and they had probable cause to take him into protective custody, Filler said.
Police can take people into protective custody when they believe their mental illness presents a likelihood of serious harm to themselves or others.
Police also could have handed over the threat against the Saco center to the FBI and the Joint Terrorism Task Force for them to investigate, Filler said.
“Why wasn’t he arrested or at the very least placed under surveillance? It may come down to exactly what he said, who he said it to,” Filler said. “But that’s why you need the independent investigation.”
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On Wednesday, Gov. Janet Mills announced she will form a commission to investigate the circumstances that led to the mass shooting that killed 18 people and injured another 13 at Just-In-Time Recreation bowling alley and Schemengees Bar and Grille on Oct. 25.
Card’s family had also brought their concerns about Card’s anger and paranoia to police, who relied on the family to take Card’s guns.
“It does not look like this was taken lightly by anyone involved. My argument that our system and process is convoluted and unclear seems to be part of the problem here. In hindsight, it seems like he should have been taken into protective custody,” said Michael Rocque, an associate professor of sociology at Bates College in Lewiston and an expert on criminology.
It’s possible Card could have been charged with assault for punching someone, but there was not enough information in the reports released by the sheriff’s office to establish probable cause for an arrest, said Zachary Smith, a Bangor defense attorney.
“A follow-up investigation by a law enforcement officer would have to get details from the person who said he was punched by Robert Card, specifying a date and a town or city,” Smith said.
What’s more, an assault charge often leads to a summons, which wouldn’t put someone in jail. To make it an arrestable offense, police must reasonably believe the person may harm others unless immediately arrested, Smith said. Following an arrest, the bail process can prohibit a defendant from possessing guns.
In addition, Smith is not convinced that police had enough information to arrest Card for the threats he made against the Reserve center in Saco.
“I’m not persuaded there was probable cause to charge criminal threatening because that offense requires putting someone ‘in fear of imminent bodily injury,’ and what was described in this report sounded far too vague to place anyone in fear of imminent bodily injury,” Smith said.
Some might say that Card should have been charged with terrorizing for threatening the Saco facility, Smith said, but the U.S. Supreme Court’s opinion in Counterman v. Colorado in June has created uncertainty around how the charge can now be applied. The court found there are limits on laws that make it a crime to threaten people.
“The problem is that Maine’s terrorizing statute most likely is unconstitutional,” Smith said.
Remembering the victims
Natasha Irving, the district attorney for Knox, Waldo, Lincoln and Sagadahoc counties, agreed.
“Basically, what was in those reports was not prosecutable. I don’t believe that any reasonable legal arguments can be made that an arrest should have been made under these facts and under the current law.”
Violence is a public health crisis, she continued, and it is naive to believe Maine can police its way out of danger.
“I want to emphasize the fact that members of law enforcement are responding to individuals with serious mental illness and access to firearms all day every day,” she said. “We need a public healthcare and mental healthcare system if we want to achieve a modicum of safety in this state and in our nation.”
Mote and Androscoggin County Deputy Matthew Noyes, both members of the same Army Reserve unit as Card, did not respond to multiple requests for an interview.
Topsham Police Officer Gabrielle Mathieu, and Sagadahoc County Sheriff’s deputies Chad Carleton and Aaron Skolfield, who handled reports from family members and the Army Reserve about Card, did not respond to requests for comment.
BDN writers Marie Weidmayer and Sawyer Loftus contributed to this report.