In re J.

276 A.3d 510

2022 ME 34

IN RE Weapons Restriction of J.

Docket: Cum-21-413

Supreme Judicial Court of Maine.

Argued: May 9, 2022

Decided: June 21, 2022

Lawrence C. Winger, Esq. (orally), Portland, for appellant J.

Jonathan Sahrbeck, District Attorney, and Carlos Diaz, Asst. Dist. Atty. (orally), Cumberland County District Attorney's Office, Portland, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.^*

JABAR, J.

[¶1] J. appeals from a judgment entered by the District Court (Portland, Kelly, J. ) extending a weapons restriction placed on J. because J. presents a likelihood of foreseeable harm. On appeal, J. argues that Maine's weapons restriction statute, a Yellow Flag law,¹ 34-B M.R.S. § 3862-A (2022), is unconstitutional because it conflicts with article I, section 16 of the Maine Constitution ; Maine's weapons restriction statute is unconstitutionally void for vagueness; the court's decision to extend the initial weapons restriction order was not supported by clear and convincing evidence; the court erred by failing to make factual findings in its order extending the weapons restriction; and there was prosecutorial misconduct. We affirm.

I. BACKGROUND

[¶2] We draw the following facts from the evidence presented at trial, viewed in the light most favorable to the trial court's judgment. See State v. Sasso , 2016 ME 95, ¶ 2, 143 A.3d 124.

[¶3] On the night of September 8, 2021, J. was intoxicated and upset because he was going to euthanize his dog the next morning, he had recently learned his mother was going to move in with his financially abusive brother, and his niece had just died of a drug overdose. He came out of his bedroom in an agitated state carrying a handgun and told his girlfriend that he needed to go outside for a few minutes. After J.’s girlfriend took the handgun away from him, J. came out of his bedroom with another handgun, which she also took from him. J.’s girlfriend could not calm him down, so she called 9-1-1. J.’s girlfriend was "afraid that he was either going to hurt himself or [that he] might damage something." She was also afraid that J. was going to kill himself.

[¶4] During the nearly twenty-minute 9-1-1 call,² J. repeatedly tried to get back into his bedroom to retrieve more firearms but was blocked by his girlfriend. He ranted that he was going to kill any police officers who came to his home. When the dispatcher asked whether J. had any more guns J. apparently overheard the question³ and replied "Many ... Many." J. also grabbed two kitchen knives: a fifteen- to sixteen-inch-long serrated bread knife and a meat knife. While the dispatcher remained on the phone with J.’s girlfriend, J. made numerous threatening statements, including, "If you come to my house, I will fucking kill you"; "I will fucking kill the first cop that shows up here! Let's do this! J.’s ready!"; and, "The first fucking cop to come to my house is a dead motherfucker."

[¶5] J. left the house while his girlfriend continued to speak to the dispatcher. When several sheriff's deputies arrived at the home, J. was standing in the driveway armed with two knives. The deputies approached and repeatedly asked him to drop the knives. J. did not drop the knives and began slowly walking down the driveway toward the deputies. The deputies shot J. with two less-than-lethal rounds, but these had limited effect; a third shot, to his groin, finally caused him to drop the knives, and the deputies were able to take him into custody.

[¶6] During the time that officers took him into custody, J. remained agitated and continued to threaten the police. When asked what he intended to do with the guns, J. said "take care of business," added that it was not the deputy's business, and stated that, if J. wanted to shoot himself, he could. He calmed down on the way to Maine Medical Center but became agitated again when he arrived, threatening to kill his girlfriend.

[¶7] While J. was in protective custody,⁴ 34-B M.R.S. §§ 3862, 3862-A(1)(J), (2) (2022), a doctor assessed him for approximately six hours, describing him as "possibly mildly intoxicated" and "very belligerent towards the law enforcement officers and the medical staff." Based on this assessment, reports from the sheriff's deputies,⁵ and medical records indicating that he had previously been belligerent toward medical staff, the doctor completed a written assessment that stated that J. was "a mentally ill person within the meaning of 34-B M.R.S. § 3801(5)" and that he "pose[d] a likelihood of foreseeable harm within the meaning of 34-B M.R.S. § 3862-A." See 34-B M.R.S. § 3862-A(2)(B).

[¶8] On September 9, 2021, a deputy applied to the court for an "endorsement" of the doctor's assessment pursuant to section 3862-A(3) authorizing law enforcement to notify J. that he was required to surrender his weapons and was prohibited from possessing any weapons. Attached to the application was a statement of probable cause and the written assessment by the doctor, as required by the statute. The court (Woodman, J. ) endorsed the application, thereby prohibiting J. from possessing dangerous weapons pending a judicial hearing. See id. § 3862-A(1)(C), (4)(A). On September 10, 2021, the State filed a petition to extend the restriction for a period of up to one year, and a hearing was scheduled for September 22, 2021. See id. § 3862-A(6)(A).

[¶9] During the hearing, which is governed by 34-B M.R.S. § 3862-A(6), the court (Kelly, J. ) heard testimony from J.’s girlfriend, one of the deputies who took J. into custody, the evaluating doctor, and J. J. was represented by counsel. See id. § 3862-A(6)(A). In his testimony, J. admitted the events of the night. He testified that his dog had since been euthanized, that he would never hurt his girlfriend or the police, and that this was his first interaction with the police since the 1990s. However, he also testified that he had neither stopped drinking nor sought mental health treatment and that the issues surrounding his brother and mother were still ongoing. He testified that the lesson he learned the night of September 8, 2021, was "[n]ever call 9-1-1."

[¶10] The court entered a written order on September 22, 2021, extending the restriction to September 22, 2022. The court used a form order and selected the box indicating that "pursuant to 34-B M.R.S. § 3862-A(6)(D), the Court finds that there is clear and convincing evidence to continue or extend the initial weapons restriction order." Although the form order provided a space for the court to describe the evidence upon which the decision was based, the court left this portion of the form blank. Neither party requested additional findings under M.R. Civ. P. 52(a). As required by statute, the court also scheduled a hearing for August 3, 2022, forty-five days before the expiration of the order, to determine whether the order would be extended further.⁶ See 34-B M.R.S. § 3862-A(6)(D)(3). J. timely appealed. See 14 M.R.S. § 1901 (2022) ; M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶11] J. raises five claims on appeal: (1) section 3862-A violates article I, section 16 of the Maine Constitution ; (2) section 3862-A is unconstitutionally vague; (3) the extension of the weapons restriction was not supported by clear and convincing evidence; (4) the court erred by failing to make factual findings when it extended the weapons restriction; and (5) during closing arguments, the prosecutor committed misconduct.

A. Constitutionality under the Maine Constitution

1. Article I, Section 16

[¶12] We review questions of constitutional interpretation de novo. State v. Reeves , 2022 ME 10, ¶ 42, 268 A.3d 281. The party "challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality[,] since all acts of the Legislature are presumed constitutional." Bouchard v. Dep't of Pub. Safety , 2015 ME 50, ¶ 8, 115 A.3d 92 (quotations marks omitted). When making a facial challenge to a statute, the party "must demonstrate that ‘no set of circumstances exists under which the [statute] would be valid.’ " Guardianship of Chamberlain , 2015 ME 76, ¶ 10, 118 A.3d 229 (quoting United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). To prevail against the presumption of constitutionality, "the party challenging the statute must demonstrate convincingly that the statute and the Constitution conflict." Bouchard , 2015 ME 50, ¶ 8, 115 A.3d 92 (alterations and quotation marks omitted). Finally, "all reasonable doubts must be resolved in favor of the constitutionality of the statute." Id. (quotation marks omitted).

[¶13] Article I, section 16 of the Maine Constitution provides, "Every citizen has a right to keep and bear arms and this right shall never be questioned." This section was amended in 1987, when the people of Maine voted to remove "for the common defense" from the original provision. See State v. Brown , 571 A.2d 816, 816 (Me. 1990). This was done "with the apparent intent of establishing for every citizen the individual right to bear arms, as opposed to the collective right to bear arms for the common defense." Id.

[¶14] We have previously held that this section of the Maine Constitution does not give an absolute right to bear arms. Id. at 817-18. Further, article I, section 16, like the rest of the Maine Constitution, is subject to article IV, part 3, section 1 of the Maine Constitution, which grants the Legislature "full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to this Constitution, nor to that of the United States." Me. Const. art. IV, pt. 3, § 1 ; accord Brown , 571 A.2d at 820. It is "settled law" that article IV, part 3, section 1 gives the State " ‘police power’ to pass general regulatory laws promoting the public health, welfare, safety, and morality." Brown , 571 A.2d at 820. However, the regulation of constitutional rights through the...