Interim Report on Lewiston Shooting Pierces Sagadahoc S.O. Fog.

Mar 26, 2024

Independent Commission Report Pierces the Sagadahoc S.O. Fog.

A little over a week ago, on March 15, 2024, the Independent Commission to Investigate the Facts of the Tragedy in Lewiston (Commission) issued an “Initial interim report.” The report cuts through some of the fog blowing around law enforcement’s actions and inaction in the time before Robert Card’s October 25, 2023 killing spree. A piece in the March 24, 2024, Maine Sunday Telegram sums up the position of the Sagadahoc County Sheriff’s Office and Sgt. Aaron Skolfield this way:

The sheriff’s office has argued that Skolfield’s hands were tied when Card refused to answer his door for police after he threatened to shoot up his Saco Army Reserve base in September. Because Maine officers cannot get a warrant to take someone into protective custody without a crime being committed, Skolfield could not force the face-to-face interaction he needed to temporarily confiscate Card’s weapons under the state’s yellow flag law.

I’m not sure that the Sagadahoc S.O. is asserting that nobody can be taken into protective custody who has not committed a crime. That is simply not true. By statute, “If a law enforcement officer has probable cause to believe that a person may be mentally ill and that due to that condition the person poses a likelihood of serious harm” the officer may take that person into protective custody. But the Sagadahoc S.O. has repeatedly put it out there that Robert Card committed no crime before Skolfield attempted to contact him on September 16 and 17 of 2024, and that this somehow tied Skolfield’s hands. That suggests that Skolfield’s hands would not have been tied if Card had committed a crime.

That’s what I mean about the fog blowing around these events. Neither Sgt. Skolfield nor anyone else at the Sagadahoc S.O. can possibly believe that punching another person in the face in an angry outburst isn’t a Class D assault, or that threatening to “shoot up” an Army Reserve drill center, causing a close friend of the person making the threat to believe that the threatener is going to do a mass shooting, isn’t Class D terrorizing. And yet, the Sagadahoc S.O. has been happy to create and perpetuate the public perception that Skolfield’s hands were tied when he tried to deal with Card because Card had committed no crime.

What did Skolfield know on September 17, 2023 about Card’s criminal activity? Here’s how the Commission’s interim report puts it:

As of September 17, 2023, the SCSO had information that a member of its community with serious mental illness, had been hospitalized for two weeks related to that illness, had access to 10-15 firearms, had assaulted his friend days earlier, had threatened to shoot up the drill center in Saco and other places, and had threated to 'get' his superiors who were responsible for his hospitalization [emphasis added].

As I have pointed out previously, if Skolfield had sought and secured an arrest warrant for Card for assault and/or terrorizing, or had worked with other officers to do so, Card could have been arrested, and bail conditions could have been set barring him from possessing firearms. An arrest warrant allows police to bring about face-to-face contact with the subject of the warrant without needing to worry whether the person will come to the door willingly.

In that connection, the Commission’s interim report tells us:

The Commission further finds that 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.

In a footnote, the Commission further explains:

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.

But Skolfield never attempted to contact Hodgson, even though Hodgson was the person Card punched in the face and the person to whom Card made the threats. Skolfield has explained that he was powerless to pursue charges because nobody asked him to “press charges.” But as the Commission points out, Skolfield didn’t need anyone to “press charges” in order to pursue charges. And he couldn’t possibly have known whether Hodgson wanted to “press charges” because he never even attempted to speak to Hodgson.

To recap, Skolfield has claimed that his hands were tied because Card had committed no crime, which suggests that he could have done something if Card had committed a crime. Yet, Skolfield was told that Card had punched Hodgson in the face (assault) and had threatened to shoot up the Saco training center (terrorizing) a few days previously. In a tacit admission that he was aware that these actions constituted crimes, Skolfield has alternatively claimed there was nothing he could do about Card’s crimes because nobody wanted to “press charges,” even though Skolfield didn’t need anyone to “press charges” in order to investigate and pursue charges, and even though he never attempted to speak to the sole witness to the assault and terrorizing.

And then there’s the “yellow flag law” issue. The Commission faults Skolfield for claiming he could not have attempted to secure a civil order to remove Card’s firearms under Maine’s so-called “yellow flag law.” In Skolfield’s view, he could not attempt to invoke the yellow flag law without making face-to-face contact with Card and taking him into protective custody, which he couldn’t do because Card wouldn’t answer his door. Again, an arrest warrant would have allowed the police to cut to the chase. And apart from that, Skolfield made no attempt to gather information from Card’s friend, Hodgson, or from members of Card’s family as to where Card worked so police could attempt to contact him in a less perilous location than his home, where he was more likely to be holed-up with his abundant weapons cache.

As I have said before, I suspect that Skolfield was relieved not to have to press his attempts to contact Robert Card at his home on September 17, 2023. Skolfield took directions by phone that day from two Army reservists who were also police officers. Those officers, Mote and Reamer, downplayed Card’s dangerousness and created the impression for Skolfield that Hodgson, the person Card assaulted and to whom Card threatened to shoot up the Saco base, was not worthy of belief. It appears that Mote and Reamer wanted to keep things as un-damaging as possible for their mentally ill friend Robert Card. I hope we learn much more about that as the Commission’s work continues. Neither Skolfield, Mote, nor Reamer acted with malice, but their combined actions and failures to act, while understandable, were appallingly deficient.

Does the Commission’s Assessment that Skolfield Abdicated Law Enforcement Responsibility Amount to Scapegoating?

Was Skolfield’s September 17, 2023 decision not to pursue a “yellow flag” procedure or criminal charges against Card, instead leaving it to Card’s family to attempt to remove Card’s firearms, “an abdication of law enforcement’s responsibility” as the Commission states in its interim report? Some people have found the assessment harsh and unjustified. In a letter published in the March 24, 2024, Maine Sunday Telegram, Karen Mosher, of Manchester, expresses sympathy for Sgt. Skolfield and what she apparently views as his scapegoating by the Commission. Here is the final paragraph of her letter:

"National experts do not agree on the causes, prediction or prevention of mass shootings. It is unhelpful and unfair to believe a single deputy in a small, under-resourced department in Maine should carry the weight of our nation’s failure on his shoulders, however broad they may be."

My Current Working Theory of the Case.

I have a working theory of the case that at this point runs like this: When Sgt. Skolfield attempted to contact Robert Card on September 17, 2023, he realized he was in a dangerous situation, with the potential for an armed standoff or ambush by a heavily armed and mentally deranged Robert Card. Skolfield was therefore relieved when Card’s Army reserve associates, Mote and Reamer, who were also police officers, told Skolfield they only wanted to know that Card was alive at home, that there was no reason for Skolfield to push to do more. Skolfield was also happy to defer to their assessment that Hodgson (who was not a police officer) was not credible and tended to blow things out of proportion – in other words, that two fellow police officers who knew Card personally did not believe Card was a threat to “shoot up” any place if he was just left alone to settle down.

For their part, Mote and Reamer wanted to keep things as quiet as possible, to minimize damage to their friend, Robert Card. Reamer had spoken to Card by phone and was satisfied that Card was not headed down to Saco to shoot up the training facility. Both Mote and Reamer wanted to keep the situation in-house, among friends, where they could handle it their own way. They were more than happy that Skolfield was willing to call it good and move on to other matters once he determined that Card was home but would not answer his door. When Skolfield left Card’s property, and let the matter of Card’s threat to shoot places up go that day, all three were relieved.

Then, it all turned to crap on October 25. Suddenly, it turned out that Hodgson’s fear of Card doing a mass shooting was well-founded. That made Mote’s and Reamer’s September 17 communications with Skolfield look really bad. It looked as if Mote and Reamer didn’t really have a handle on the situation after all. Card’s threats to Hodgson were real, not idle. Hodgson was right. Mote and Reamer missed the chance to any take action that might have stopped Card from shooting all those people. And unless there was nothing more that Skolfield could have done – if there were things that he should have done but didn’t do – then Skolfield failed to do all that he could. That would be hard to let pass.

So, it was natural for Skolfield and the Sagadahoc S.O. to tell everyone that Skolfield did everything possible; that there was nothing more he could have done; that Card had not committed any crime when Skolfield attempted to contact him -- there was no chance to arrest him for a crime. What was Skolfield supposed to do, since Maine only has a yellow flag law that would have required him to take Card into protective custody for a psychological exam before a court could issue an order to confiscate Card’s firearms? How can you take someone into protective custody who refuses to come to the door and allow face-to-face contact? Skolfield did everything he could. He went above and beyond when he tried to get Card’s family involved in taking away Card’s guns. That also absolves Mote and Reamer. After all, they put Skolfield on the task, which led to Skolfield doing everything that could be done; above and beyond everything that could have been done, as a matter of fact.

The only problem with this narrative is that it’s not true. If you have a problem with the falsehoods, all is not fine with Skolfield, Mote and Reamer. But if you buy into the narrative that Skolfield and the Sagadahoc S.O. have put out there, the narrative is good for Skolfield, the S.O., Mote, and Reamer.

And there’s a ready-made audience for the narrative that Skolfield and the Sagadahoc S.O. have put out there. It’s an audience comprised of people who have insisted since Maine’s yellow flag procedure was enacted into law that it is insufficient, that Maine was foolish not to enact a “red flag law.” Unlike Maine’s yellow flag law, a red flag law would allow a person to get a court order to confiscate another person’s firearms without the need for police to first take the other person into protective custody for a psychological examination.

Almost immediately after Card committed his mass murder, this group began shouting: “We told you so! The yellow flag law is sad a joke! Maine needs a red flag law!” Case in point: There was Skolfield, stymied by Card’s simple refusal to answer his front door – a dedicated officer doing everything that could possibly be done, stymied because a bunch of gun nuts somehow bamboozled the Maine Legislature into giving the police inadequate tools for the job.

Just watch the news and read the papers; Maine’s press corps is very much in with this crowd. And in this, we have symbiosis between the all-too-human self-preservation and butt-covering interests of the Sagadahoc S.O., Skolfield, Mote, and Reamer, and the political interests of the red flag crowd, including much of the press. Which is why the press has been slow to call B.S. on the narrative that Card committed no crimes; that Skolfield went above and beyond; and that the problem lies with too few and inadequate existing laws to address gun violence.

What is the Value of the Commission’s Interim Report?

The Commission does not share in this symbiosis of personal and political interests. The Commission’s assigned task is to determine the facts. Three of the commissioners are former judges. One of the three former judges was once the District Attorney in the prosecutorial district that includes Sagadahoc County.

Judges don’t have a lot of patience with witnesses who make obviously and demonstrably untrue statements in matters under their jurisdiction. The Commission’s interim report points out the facts that dispel Skolfield’s untrue statements, and it tells us that the Commission is unanimous in its assessment. People ought to give credence to what the Commission has said here.

Returning to Karen Mosher’s letter, we are a long way from Sgt. Skolfield carrying the weight of the nation’s failure to predict or prevent mass shootings on his broad shoulders, whatever that might look like.

I have nothing against Sgt. Skolfield. He might be the greatest sheriff’s deputy that Sagadahoc County or the State of Maine has ever seen. And the Commission’s interim report is quick to point out that Card might have committed his mass murder spree even if his guns had been removed from his house. But there was more that Skolfield could have done to pursue a yellow flag procedure and to pursue Card’s arrest for the crimes he committed. That’s the truth. Assertions to the contrary are not true. Facts matter. Truth matters, regardless of personal and political interests.

Now, in case there are others in the law enforcement community who didn’t know it before, because of the commission’s interim report, they now know that punching another person in the face is a crime, that credibly threatening to commit a mass shooting is a crime, that probable cause is to be determined by the collective knowledge of all involved police officers, that it isn’t necessary for anyone to request that criminal charges be “pressed” in order for police to investigate and pursue criminal charges, and that failing to talk to the sole witness to a reported crime, or to family members who might help police locate the potential subject of a yellow flag procedure at a place other than the person’s home, does not constitute doing everything that can be done to pursue the person’s arrest or to pursue a yellow flag procedure.

There is value in that.

Related Note on the Current State of Maine’s Terrorizing Statute.

The enforceability of Maine’s terrorizing statute has been in question because of the U.S. Supreme Court’s June 27, 2023 opinion in Counterman v. Colorado. Until recently, Maine’s terrorizing statute did not require the state to prove that a defendant was at all aware of how his statements might be perceived by the person to whom they were communicated or to the person threatened by them. Instead, if a person communicated a threat to commit a crime of violence, dangerous to human life, either against the person to whom the threat was communicated or another person, the communication constituted terrorizing as long as the natural and probable consequence of the threat was to place the person to whom it was communicated or the threatened person in reasonable fear the crime would be committed.

Counterman v. Colorado held that, because of first amendment concerns, in any prosecution involving “true threats,” the state must prove that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The Counterman ruling threw the enforceability of Maine’s terrorizing statute into question (although when Robert Card committed his terrorizing offense in September of 2023, very few prosecutors and few, if any, police officers yet realized that the Counterman case created a constitutional question regarding enforcement of Maine’s terrorizing statute, and there is no indication that Counterman issues played any role in Skolfield’s failure to investigate or pursue Card’s arrest for terrorizing).

By emergency legislation that took effect on March 6, 2024, the Legislature amended Maine’s terrorizing statute. It now requires the defendant to at least have the state of mind of “recklessly” (conscious disregard of risk) regarding the threat. It also expressly requires that the defendant must have consciously disregarded a substantial risk that the natural and probable consequence of the threat is to place the person to whom it is communicated or the person threatened in reasonable fear that the crime will be committed.

In other words, if someone today credibly threatens to shoot up a school, for instance, there will be no constitutional infirmity in prosecuting the person under Maine’s revised terrorizing statute.