In the Matter of the Necessity for the Hospitalization of LUCIANO G.
Appeal
from the Superior Court of the State of Alaska, No. 3
AN-17-00250 PR Third Judicial District, Anchorage, Erin B.
Marston, Judge.
Megan
R. Webb, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for Appellant.
David
T. Jones, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee State of
Alaska.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, JUSTICE.
I.
INTRODUCTION
A man
appeals the court order involuntarily committing him for
mental health treatment. He argues that the court erred in
making two findings: (1) that as a result of his mental
illness he posed a risk of harm to others and (2) that there
was no less restrictive alternative to committing him to the
Alaska Psychiatric Institute (API). He contends that his
conduct did not meet the statutory criteria of "likely
to cause serious harm" and that there was insufficient
evidence presented that there was no less restrictive
alternative for his treatment. Because the superior
court's findings were supported by clear and convincing
evidence and the superior court properly determined that the
man's conduct met the statutory criteria, we affirm the
commitment order.
II.
FACTS AND PROCEEDINGS
Anchorage
airport police took Luciano G.[1] into emergency custody and
transported him to the psychiatric emergency department at
Providence Alaska Medical Center for emergency detention and
evaluation.[2] Providence filed a petition for evaluation
the same day; the petition was granted and Luciano was
transported to API for evaluation. A few days later API staff
filed a petition to commit him to API for up to 30 days for
further treatment.[3]
At a
hearing to address API's petition, an airport police
officer testified that Luciano had come to her attention
after an airline employee had called to report a man was
acting "irate" at the ticketing counter. She said
Luciano had repeatedly refused to state his destination
before eventually naming Arizona, had instantly squared up
and balled his fists when she contacted him, and had
continued to clench his fists and tighten his shoulders even
after he had been handcuffed. The officer testified Luciano
had both carry-on bags and luggage to be checked located
about 500 feet away from where she first made contact with
him. She noted that one piece of the luggage was a gun case
with no visible lock, which concerned her because "to
fly with an airlines [sic] you have to have a locked, secured
case for weapons to go underneath the aircraft."
Officers took Luciano to their office. They took his luggage,
including the case, for safekeeping and performed an
inventory search. Inside the case were a rifle, two
revolvers, and another handgun. Three of the guns were
loaded. The officer testified: "One revolver had six
bullets inside and it was aligned with the chamber[, ]
[a]nother revolver had five bullets inside," and the
third handgun had a fully loaded magazine with a bullet in
the chamber. Luciano also had 120 rounds of ammunition and a
"load bearing vest"[4] in his other luggage.
Dr.
Anthony Blanford, a psychiatrist at API, was called as an
expert witness; he testified that he had spoken with Luciano
four or five times since Luciano's admission to API. He
testified that Luciano appeared to suffer from an unspecified
psychotic disorder. Dr. Blanford stated that people he had
interviewed described Luciano's recent behavior as very
odd, especially in the last month, and that Luciano said that
he had suffered a head injury as a result of a motor vehicle
accident in the last month. Dr. Blanford noted Luciano had
recently lost his job at the Veterans Administration (VA).
Dr.
Blanford testified Luciano had been unwilling to talk to him
about what happened at the airport other than to minimize the
event and state it was just a misunderstanding. Dr. Blanford
informed the court he had spoken to a person at the VA who
described Luciano as engaging in an intense intimidating
stare. Dr. Blanford testified Luciano had stared at him a
couple of times and that the stare was "quite
intimidating where [Luciano] would stop cooperating and then
just engage in a stare, without blinking." He testified
he interpreted Luciano's stare as a threat. Dr. Blanford
stated, "So when . .. [Luciano] started doing that[, ] I
actually asked him . .. what was he trying to do,
intimidate[?] And he would say, well, why are you feeling
scared, are you feeling frightened of me[?]" Dr.
Blanford opined that Luciano's behavior at the airport
reflected confused thinking and paranoia and that he would
expect someone with Luciano's military background to know
how to properly handle guns, including separating bullets
from weapons. Dr. Blanford testified Luciano had told him
that if he were released he wanted to go to Arizona to be
near family, but that Luciano had refused to sign releases of
information to enable API staff to confirm he could stay with
family members.
Dr.
Blanford stated that Luciano did not believe he had a mental
health problem. Dr. Blanford did not believe Luciano would
participate in outpatient treatment because Luciano
"believes he didn't really do anything wrong when he
arrived at the airport, and he didn't threaten
anybody." Dr. Blanford testified he expected
Luciano's symptoms would continue if not treated and that
his head injury might have made things worse. On
cross-examination Dr. Blanford conceded that Luciano had not
made any verbal threats and that Luciano's behavior
"at the worst, [had been] described as menacing, and
intense ... and not able to engage."
Dr.
Blanford also expressed concern that Luciano planned to
escape from API because he demonstrated "elopement
behavior," including asking to go outside frequently and
carrying all of his belongings around API in a bag. Dr.
Blanford described two incidents: Luciano attempted to
"pull the fire alarm" so that he might escape, and
he was observed in the gym attempting to "leap right up
on a wall about six to eight feet high." Dr. Blanford
believed that "[Luciano was capable] of trying to leap
the wall in the yard."
Luciano
testified that after his discharge from the U.S. Army in 2015
he primarily worked as a security guard before obtaining a
position at the VA as a medical support assistant. He
testified that he left his job at the VA because he wanted to
take a vacation. Luciano described the situation at the
airport as "just a misunderstanding between [himself]
and the airport clerk and the police." He conceded that
his interaction with the police was "not good" and
that he was frustrated by the police putting their hands on
him.
Luciano
testified that he was not aware of having any mental health
diagnoses, but that he did have an adjustment disorder he
"personally... classified]... as a [traumatic brain
injury]." He said he had suffered from too many head
injuries to count and that he had not had treatment for many
of those injuries. He described experiencing "[a] huge
flash of light" countless times as a result of his head
injuries and confirmed he had recently been in a motor
vehicle accident.
Luciano
stated he could see a doctor through the VA if he
"wanted" to and agreed he was willing to be
"evaluated" by the VA. But when asked whether he
would be willing to take medication if recommended "for
adjustment disorder, insomnia, some of the things [he was]
struggling with[, ]" he responded, "[P]ersonally
... I believe . .. I don't need it." When questioned
further by his lawyer, Luciano agreed that he was willing to
see a doctor. But he testified he did not want to be at API
and would prefer to see an outpatient provider.
Luciano
stated that he never intended to harm anyone with the guns he
had at the airport and that he did not at any point intend to
harm himself. He also stated that he had not had any desire
to harm anyone since he had been at API. He said if he were
released he would go to a doctor's appointment scheduled
for the next day and then he would want to get on a plane to
go home. Luciano stated that if he were able to travel to
Arizona, he would probably crash on his brother's couch,
but acknowledged that his brother was not expecting him.
On
cross-examination Luciano admitted that he had received
training about how to handle weapons while he was in the
Army, but he stated that this had been his first time
traveling at the airport as a civilian. He denied that his
guns were loaded at the airport. Luciano agreed he had tried
to stare down Dr. Blanford, but he could not remember asking
if the doctor felt scared and denied that he had tried to
stare down anyone else at API. He conceded that he had been
balling his fists and squaring off to the officers at the
airport, but said that he was not trying to send a message to
the officers.
The
magistrate found by clear and convincing evidence that
Luciano was suffering from a mental illness based upon Dr.
Blanford's testimony and the adjustment disorder
diagnosis from the VA, and that the mental illness finding
was corroborated by Luciano's current behavior and some
of his own testimony. The magistrate stated that it appeared
Luciano had suffered a "psychotic break."
The
magistrate then considered "how much of an inference can
be drawn from [Luciano's] showing up at the airport with
loaded, unlocked guns and behaving in the manner that he
did." She noted that she was particularly concerned by
Luciano's denial that the weapons were loaded and
believed that, given his military training and background, he
would know not to come to the airport with loaded weapons.
The magistrate stated that although she had not heard
testimony of verbal threats, both the police officer and Dr.
Blanford - professionals trained to assess these situations -
testified they found Luciano's nonverbal behavior
threatening. The magistrate found by clear and convincing
evidence that Luciano was likely to cause harm to others as
defined by the statute. This finding was, in part, based upon
Luciano's apparent inability to assess and remember what
was going on. The magistrate determined that there was no
less restrictive alternative to confinement because there did
not appear to be any place for Luciano to go and because she
did not believe that he would follow up on treatment if
released.
The
magistrate summarized the testimony of the police officer,
Dr. Blanford, and Luciano in a proposed 30-day commitment
order and emphasized the safety threat Luciano posed by
arriving at the airport with loaded weapons. The proposed
order noted that Luciano, by his own admission, was trained
in the use of weapons; the court did not find credible his
denial that the weapons were loaded, or that he had not known
it was impermissible to bring unlocked loaded weapons when
traveling by plane.[5] The order outlined the testimony regarding
Luciano's aggressive attitude. The magistrate gave
particular weight to testimony by Dr. Blanford and the
officer that they found Luciano's behavior threatening
because they "are professionals trained to assess
behavior."
Luciano
filed objections to the magistrate's proposed written
findings the next day and requested a de novo hearing before
the superior court. A few days later the superior court held
an emergency hearing on Luciano's objections to the
proposed 30-day commitment order.[6] The next day the court
signed the 30-day commitment order, adopting the
magistrate's proposed written findings.
Luciano
appeals.
III.
STANDARD OF REVIEW
"
'Factual findings in involuntary commitment . . .
proceedings are reviewed for clear error,' and we reverse
those findings only if we have a 'definite and firm
conviction that a mistake has been made.'
"[7] "[W]hether factual findings comport
with the requirements of AS 47.30," is a question of law
that we review de novo.[8] "[W]e will review de novo the
superior court's decisions and use our independent
judgment to determine whether, based on the underlying
factual findings made by the superior court there was clear
and convincing evidence that involuntary [commitment] was in
[respondent's] best interests and was the least intrusive
available treatment."[9]
IV.
DISCUSSION
A.
The Superior Court Did Not Err In Finding By Clear And
Convincing Evidence That Luciano Was Likely To Harm Others As
A Result Of His Mental Illness.
Following
a hearing, a court "may commit the respondent to a
treatment facility ... if it finds, by clear and convincing
evidence, that the respondent is mentally ill and as a result
is likely to cause harm to the respondent or
others."[10] Evidence is clear and convincing if it
produces "a firm belief or conviction about the
existence of a fact to be proved."[11] We have
characterized this standard as "evidence that is greater
than a preponderance, but less than proof beyond a reasonable
doubt."[12] A respondent is "likely to cause
harm" if the respondent "poses a substantial risk
of harm to others as manifested by recent behavior causing,
attempting, or threatening harm, and is likely in the near
future to cause physical injury, physical abuse, or
substantial property damage to another
person."[13] We have previously stated, "The ...
finding, of'danger to self or others,' is concerned
with active forms of harm, where the respondent has
demonstrated the affirmative ability or inclination to
inflict harm to self or another person."[14]
Luciano
argues that because he had not assaulted or attempted to
assault anyone and had not verbally threatened anyone, the
evidence was not sufficient to support a finding that he was
likely to cause harm to himself or others. He focuses on the
fact that there was no evidence that he made any verbal
threats.
Luciano
cites no legal authority to support his argument that we
should narrowly interpret "threatening harm" to
mean only verbal threats. Noticeably absent from the
definition in the controlling statute in this case is the
word "verbal."[15] The plain language of the statute
does not foreclose the superior court from considering and
drawing inferences from nonverbal conduct seen as threatening
rather than from just words.[16] Further, Luciano has not
pointed to any legislative intent or rule of construction to
support his narrow interpretation.
In
addition the common usage of the word "threat"
encompasses more than verbal threats. The American Heritage
Dictionary of the English Language defines "threat"
as "an expression of an intention to inflict pain, harm,
or punishment."[17] It defines "threatening" as
"making or implying threats."[18] Neither of
these definitions requires that the expression be verbal for
conduct to be considered a threat or threatening.
Luciano
also challenges the inference that the superior court drew
from the evidence presented at the commitment hearing. To
address his challenge would require us to disturb the
court's factual findings, and we will not disturb the
superior court's factual findings unless we are left with
a definite and firm conviction a mistake has been
made.[19] It appears that the magistrate largely
credited the testimony of the officer and Dr. Blanford over
Luciano's testimony, and the superior court endorsed the
magistrate's factual determinations in adopting the
proposed commitment order.
Testimony
revealed that Luciano had been behaving erratically leading
up to his leaving or being fired from the VA, that he acted
irately at the airport with both the ticket agent and the
officer, and that he had loaded weapons in a gun case with no
visible lock. The magistrate did not believe a former soldier
like Luciano would be unaware of how to appropriately secure
his weapons as required by regulation for air travel,
[20]
and noted her concern that he continued to insist that the
guns had not been loaded. Based in part on this determination
she also found it was not credible that Luciano, who had
arrived at the airport unticketed, carrying these unsecured
and loaded weapons, and refusing to provide a destination,
was there for the benign purpose of travel. Both the officer
and Dr. Blanford testified that they believed Luciano's
behavior was threatening, and the officer characterized his
actions of tightening his shoulders, balling his fists, and
squaring up to her as "pre-assault indicators." Dr.
Blanford testified that the menacing behavior continued at
API.[21]
The
superior court was entitled to consider and credit all of
this testimony; "[conflicting evidence is generally
insufficient to overturn a fact finding, and we will not
reweigh evidence if the record supports the court's
finding."[22] Our task on appeal is rather to
determine whether the superior court's findings, so long
as they are not clearly erroneous, are sufficient when taken
together to establish by clear and convincing evidence that
Luciano was likely to cause harm to himself or others as a
result of his mental illness.[23] We conclude that in this case
they are: Luciano's arrival at the airport with unsecured
and loaded firearms and his repeated refusal to name a
destination, coupled with his physically aggressive body
language, are enough to generate "a firm conviction or
belief that he posed a substantial risk of harm to himself or
others.[24] We therefore conclude that the superior
court's finding that Luciano was likely to harm himself
or others because of his mental illness was supported by
clear and convincing evidence.
B.
The Superior Court Did Not Err In Finding By Clear And
Convincing Evidence That There Was No Less Restrictive
Alternative To Confinement.
Luciano
also appeals the superior court's finding that there was
no less restrictive alternative to confinement at API. He
argues that the evidence was insufficient to show what
alternatives to confinement were considered and by whom, or
why a less restrictive alternative was not viable.
The
petitioner in an involuntary commitment proceeding must prove
by clear and convincing evidence that there is no less
restrictive alternative to confinement.[25] The term
"least restrictive alternative" means that the
treatment facilities and conditions "are no more harsh,
hazardous, or intrusive than necessary to achieve the
treatment objectives of the patient" and "involve
no restrictions on physical movement nor supervised residence
or inpatient care except as reasonably necessary for the
administration of treatment or the protection of the patient
or others from physical injury."[26]
The
superior court in this case found that no less restrictive
alternative existed because Luciano did not appear to have
anywhere to stay and was unlikely to follow up with treatment
if not committed. The evidence in this case supports these
findings: Luciano himself testified that he had no place to
live, and Dr. Blanford stated that API staff were unable to
verify that he would be able to stay with family due to his
refusal to provide a release of information. Although Luciano
argues that Dr. Blanford's failure to contact his
treatment providers at the VA should preclude the court from
finding that there was not a less restrictive alternative,
the court clearly credited Dr. Blanford's testimony that
Luciano was unlikely to seek treatment if released over
Luciano's equivocal testimony that he
would.[27] Whether his previous providers would
have been willing to help him did not matter if Luciano would
not seek their help. And Dr. Blanford testified he did not
believe Luciano would participate in outpatient treatment.
Dr. Blanford further testified that he believed Luciano's
symptoms would continue if not treated. Dr. Blanford was also
concerned that Luciano continually tried to leave API.
We have
previously affirmed a superior court's finding that there
was no less restrictive alternative based upon similar
evidence. In In re Hospitalization of Joan K. we
affirmed the superior court's finding that living with
family was not a viable less restrictive alternative for a
respondent because family members were not able to watch her
24 hours a day and because the respondent changed her mind
rapidly about what she would or would not do if
released.[28] We emphasized that the record showed
that she "lacked perspective regarding her bipolar
disorder" and that she denied having a mental illness or
needing treatment.[29] In In re Hospitalization of Mark
V. we similarly affirmed the superior court's less
restrictive alternative finding where the record showed that
a respondent's need for medication and his inability to
follow an outpatient regimen supported the magistrate's
finding that no less restrictive alternative was
available.[30]
To
disturb the court's finding that there was no less
restrictive alternative available for Luciano's treatment
would require us to reweigh conflicting evidence, which we
will not do as it is the province of the trial court to weigh
testimony and make credibility determinations.[31] The record
supports the superior court's underlying factual findings
that Luciano lacked a place to live and would not seek
treatment unless committed; these findings are sufficient to
establish by clear and convincing evidence that no less
restrictive alternative to commitment at API existed.
V.
CONCLUSION
We
AFFIRM the superior court's commitment order.
STOWERS, Chief Justice, dissenting.
I.
INTRODUCTION
The
superior court ordered Luciano G.'s involuntary
commitment to the Alaska Psychiatric Institute (API) because
he brought unlocked and loaded weapons to the airport and
because airport and API personnel viewed Luciano's
behavior as threatening. The court did so on the theory that
this showed Luciano to be a danger to others. By affirming
this order today, I believe this court dangerously broadens
Alaska's involuntary commitment statute, giving short
shrift to Luciano's constitutionally protected liberty
interests.[1] Finally, I conclude the superior court
failed to adequately consider less restrictive alternatives
to commitment at API. I therefore respectfully dissent from
the court's opinion.
II.
DISCUSSION
A.
Luciano's Behavior Did Not Meet The Legal Standard Of
"Likely ...