Robert Card’s threat to commit a mass shooting concerned his friend and Army Reserve command enough to alert police. So why didn’t deputies charge Card with terrorizing?

That was the question a member of the commission investigating the Lewiston mass shooting pressed a Sagadahoc County Sheriff’s deputy to answer during a tense back and forth last week. And it was the question the deputy most struggled to answer.

Card said he had guns and was “going to shoot up the drill center at Saco and other places. He also said he was going to get ‘them,’” according to police documents.

To be guilty of terrorizing under Maine law, a person must communicate a threat of “violence dangerous to human life.” And, critically, the threat must be serious enough that either the potential victim or a third-party who hears the threat could have a “reasonable fear that the crime will be committed.”

The deputy offered the commission several reasons why it did not make sense to try to Card charge with terrorizing – but it remains unclear how seriously he considered the charge at the time. And if he pursued that charge, whether prosecutors would have signed off.

The department had long since stopped looking for Card by Oct. 25 when he killed 18 people and wounded 13 others in Lewiston in what became the deadliest mass shooting in Maine history and the worst in the nation in 2023.

Sagadahoc County Sheriff Joel Merry has said that his deputies could not have taken Card’s guns away before the shooting because he did not commit a crime until he walked into Just-In-Time Recreation and started firing. Without an arrest warrant, Sgt. Aaron Skolfield could not make Card open his door, deputies could not conduct a welfare check, and therefore police could not enact Maine’s yellow flag law.

The issue is a lot more complicated than that.

Some of Skolfield’s explanations hold water, experts say. Others don’t. But even if Sagadahoc deputies wanted to charge Card with terrorizing, prosecutors likely wouldn’t have supported it because of a recent U.S. Supreme Court decision that gutted several Maine laws, including the terrorizing statute. Legislators are now scrambling to fix it. 

COMPLICATING FACTORS

When pressed by commission member Toby Dilworth, Skolfield said there were several reasons why a terrorizing charge would have been difficult or ill-advised.

First, he said he didn’t know where Card was when he made the threats, except that he and his friend were apparently driving home from the casino in Oxford. If they were not in Sagadahoc County, Skolfield had no jurisdiction.

Natasha Irving, district attorney for Sagadahoc, Knox, Waldo and Lincoln counties, said jurisdictional rules are “cut and dry,” and charging someone in the incorrect jurisdiction can doom a prosecution. But there are workarounds; police can find out where a crime occurred and contact the agency in that jurisdiction – a step that Skolfield didn’t take.

That’s where the second explanation comes in. Skolfield said that neither the friend who Card made the threats to, nor anyone at the Army base ever showed an interest in pursuing a terrorizing charge.

“Someone would have had to say, ‘I want to make a complaint,’” Skolfield told the commission. “No one wanted to press charges.”

Skolfield’s body camera captured a phone call he had with Army Reserve Captain Jeremy Reamer on Sept. 16. Reamer can be heard asking the deputy just to check on Card and document the visit: “That’s kind of, from our end here, all we’re really looking for.”

Without a cooperative victim, cases can be hard to prosecute, Irving said. But in matters of public safety, that shouldn’t necessarily stop prosecutors from filing charges that could at least result in bail conditions like temporary prohibitions on possessing weapons.

“If we have probable cause and it’s a public safety issue, we’re there all day long,” she said.

By the letter of the law, Card’s threats are a textbook example of terrorizing, Irving said. But even if police had tried to charge him, those efforts likely would have been stymied by a U.S. Supreme Court case that some legal experts believe has nullified Maine’s terrorizing statute entirely.

RECKLESS THREATS

On the surface, Counterman v. Colorado appears to have little to do with Robert Card or Maine law. Bill Raymond Counterman was found guilty of violating Colorado’s stalking law after sending aggressive messages to a musician on Facebook.

“You’re not being good for human relations,” one of the messages said. “Die. Don’t need you.”

But Counterman argued that his messages were not truly threatening and should have been protected by the First Amendment. The Supreme Court sent the case back to the state, agreeing by a 7-2 margin that Colorado’s statute did not include language necessary to ensure only “true threats” could be prosecuted. They said prosecutors must prove that people accused of stalking made threats “recklessly” – meaning they understood that the statements they were making could be taken as threats.

Some say the ruling puts Maine’s laws – which also lack that language – at risk of being found unconstitutional.

Irving said Maine prosecutors should not take the chance; her team won’t be using the charge until the Legislature tweaks the statute. It’s unclear whether Sagadahoc deputies knew about the ruling in September when they learned about Card’s threats.

If Irving is right, Ed Folsom, a former Maine prosecutor and defense lawyer, said the decision could have created a perverse loophole in Maine that allows anyone to threaten mass shootings without breaking the law.

“If somebody can go out today and say they’re going to shoot up a Walmart, and you can’t arrest them, you can’t successfully prosecute them for it – that’s a problem,” he said. “A problem that somebody should be getting on and figuring out how to fix real quick.”

The Legislature’s Judiciary Committee is considering a bill to correct the terrorizing statute. But even if lawmakers resolve those issues, the question many asked in the wake of Lewiston will likely remain divisive: Should police have done more?

‘WE’RE LUCKY IT DOESN’T HAPPEN MORE’

Merry, the Sagadahoc sheriff, said Tuesday that in hindsight, he can “see the rationale” for finding a way to charge Card with a crime like terrorizing. But he reiterated that it is important to put Skolfield’s September visit into context.

“When we are asked to conduct welfare checks,” he wrote in an email, “charging individuals with crimes is not generally the first thing that comes to mind.”

Law enforcement officers have been trained to deescalate dangerous situations, especially those involving mental health, Merry has said.

It’s easy to say now, knowing Card’s threats became real, that Skolfield should have done more to find a way to confront him, Irving said. But if Skolfield had managed to find an excuse to kick Card’s door down, escalated the confrontation and ended up killing Card in a shootout, he would have rightly faced criticism, she said.

Skolfield in some ways went above and beyond by spending parts of two days looking for Card and recruiting Card’s family to help take his guns away, his supervisors have said.

“When I saw it was Sgt. Skolfield, I thought, ‘I bet you $1 million he did absolutely everything that was in his power to make people safe,’” Irving said. “I know it sounds so insensitive. But the volume of cases like this that we’re dealing with – this man committed these serious, horrific, unimaginable acts, but we’ve got 100 other people that we’re concerned are going to do that tomorrow.”

Folsom remains unconvinced.

It may be true, he said, that police are understaffed and regularly get calls about threatening behavior. But he argued serious threats cannot get lost in the fray. It may be difficult to find probable cause, but police must find a way to meet face-to-face with an individual they have reason to believe could commit mass violence.

“This isn’t just the ‘mental health’ and the ‘blah, blah, blah’ that you get all the time,” Folsom said. This is some guy who said that he was going to shoot up some specific place and also apparently gave his friend the impression he was going to commit a mass shooting.”

“All the time they don’t bother with stuff like that? Boy, we’re lucky it doesn’t happen more often.”

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