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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Necessity for the Hospitalization of Luciano G. (10/17/2019) sp-7415

In the Matter of the Necessity for the Hospitalization of Luciano G. (10/17/2019) sp-7415

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                           

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                             

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



In  the  Matter  of  the  Necessity                                    )  

for  the  Hospitalization  of                                          )     Supreme  Court  No.  S-16654  

                                                                       )  

                          

LUCIANO G.                                                                                                                               

                                                                       )     Superior Court No. 3AN-17-00250 PR  

                                                                       )  

                                                                                                  

                                                                       )     O P I N I O N  

                                                                       )  

                                                                                                                      

                                                                       )     No. 7415 - October 17, 2019  



                                                                                                                 

                                             

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                    

                      Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                         

                      Appearances:  Megan R. Webb, Assistant Public Defender,  

                                                                                                                   

                      and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                                           

                      Appellant.           David  T.  Jones,  Assistant  Attorney  General,  

                                                                                                              

                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                                          

                      for Appellee State of Alaska.  



                                                                                                             

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                            

                      and Carney, Justices.  



                                          

                      CARNEY, Justice.
  

                                                                    

                      STOWERS, Chief Justice, dissenting.
  



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  


----------------------- Page 2-----------------------

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             



                                                                                                                                 1  

                               Anchorage airport police took Luciano G.                                                                                                                      

                                                                                                                                    into emergency custody and  



                                                                                                                                                                                    

transported him to the psychiatric emergency department at Providence Alaska Medical  



                                                                                                                    2  

                                                                                                                                                                                              

Center  for  emergency  detention  and  evaluation.                                                                        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  



                                                                         3  

                                                                             

                                                   

to 30 days for further treatment. 



                                                                                                                                                                                              

                               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  



                1              A pseudonym has been used to protect the respondent's privacy.                                                                                       



               2  

                                                                                                                                                                                         

                               AS47.30.700-.725prescribethecircumstances and proceduresunderwhich  

                                                                                                                                                                        

a person may be taken into emergency protective custody for evaluation.  



               3               See AS 47.30.735.  Neither the petition for hospitalization for evaluation  

                                                                                                                                   

nor the 30-day commitment petition was admitted into evidence at the commitment  

                                                                                                                                                                         

hearings.                 Accordingly,  we do not consider  as  evidence factual assertions in  these  

                                                                                                                                                                                         

petitions that were not testified to at the commitment hearings.  See Paula E. v. State,  

                                                                                                                                                                                         

Dep't of Health & Soc. Servs., Office of Children's Servs ., 276 P.3d 422, 430 (Alaska  

                                                                                                                                                                                    

2012).  

                 



                                                                                                -2-                                                                                       7415
  


----------------------- Page 3-----------------------

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.                                                                                                                                             

                                                                                                                                                                                               4   in his other  

Luciano also had 120 rounds of ammunition and a "load bearing vest"                                                                                                                                



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. Blanfordtestified Luciano had been unwilling to talk to himabout 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  

                                                                                                                                                                                                                  



                  4  

                                                                                                                                                                                                                                     

                                   The officer testified that a "loadbearing vest" holds ammunition magazines.  



                                                                                                              -3-                                                                                                     7415  


----------------------- Page 4-----------------------

                                                                                                                            

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."  



                                                               -4-                                                         7415
  


----------------------- Page 5-----------------------

                                                                                                                                  

                     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 . . . classif[ied] . . .  



                                                             

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  



                                                                -5-                                                          7415
  


----------------------- Page 6-----------------------

                                                 

brother was not expecting him.  



                                                                                                                            

                    Oncross-examination Lucianoadmitted thathehadreceivedtraining 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  



                                                               -6-                                                         7415
  


----------------------- Page 7-----------------------

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  

                                           5    The order outlined the testimony regarding Luciano's aggressive  

traveling by plane.                                                                                                                                                         



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  

                                                                                                                                                                                            



               5              See  49 C.F.R.  1540.111 (2018).                           



               6  

                                                                                                                                                                                               

                              After the commitment hearing API filed a petition for court approval of  

                                                                        

administration of psychotropic medications.  It was granted following another hearing  

                                                                    

and is not part of this appeal.  



                                                                                               -7-                                                                                       7415
  


----------------------- Page 8-----------------------

                                                                                        7  

firm conviction that a mistake has been made.' "                                           "[W]hether factual findings comport                 



                                                                                                                                               8  

with the requirements of AS 47.30," is a question of law that we review de novo.                                                                  "[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  



                                                                                                                                           9  

                                                                                                                        

[respondent's] best interests and was the least intrusive available treatment." 



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  



                                                                                                                          10  

                                                                                                                                                      

ill and as a result is likely to cause harm to the respondent or others."                                                      Evidence is clear  



                                                                                                                                                           

and convincing if it produces "a firm belief or conviction about the existence of a fact to  



                      11  

                                                                                                                                                            

be proved."                We have characterized this standard as "evidence that is greater than a  



            7           In re Hospitalization of Jacob S.                             , 384 P.3d 758, 763-64 (Alaska 2016)                         



(quoting   Wetherhorn v. Alaska Psychiatric Inst                                      ., 156 P.3d 371, 375 (Alaska 2007)).                                 



            8	           Wetherhorn, 156 P.3d at 375.  

                                                                       



            9           In re Hospitalization of Lucy G., ___ P.3d ___, Op. No. 7407 at 19, 2019  

                                                                                                                                                     

WL 4383926, at *8 (Alaska Sept. 13, 2019) (citing Myers v. Alaska Psychiatric Inst.,  

                                                                                                                                                     

 138 P.3d 238, 250 (Alaska 2006); see also id. n.53 ("[T]hough the [best interests] answer  

                                                                                                                                                  

must be fully informed by medical advice received with appropriate deference, in the  

                                                                                                                                                        

final analysis the answer must take the form of a legal judgment that hinges not on  

                                                                                                                                                 

medical expertise but on constitutional principles aimed at protecting individual choice."  

                                                                                                                                                

(quoting Myers, 138 P.3d at 250)).  

                                                     



            10          AS 47.30.735(c).  

                                



            11          In re Hospitalization of Stephen O., 314 P.3d  1185, 1193 (Alaska 2013)  

                                                                                                                                                   

                                                                                                                                     (continued...)  



                                                                            -8-	                                                                    7415
  


----------------------- Page 9-----------------------

                                                                                                                                    12  

preponderance, but less than proof beyond areasonabledoubt."                                                                             Arespondentis                    "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                                                                               

                  13   We have previously stated, "The . . . finding, of 'danger to self or others,' is  

person."                                                                                                                                                                             



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  

                                                                                                                                                                           

                                                                                                                                                                15 The plain  

from the definition in the controlling statute in this case is the word "verbal."                                                                                             

                                                                                                                                             



              11             (...continued)  



                                                                                                                                   

(quoting In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000)).  



              12            Id.   (quoting  Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of                                                                              



Family & Youth Servs., 88 P.3d 527, 530 n.12 (Alaska 2004)).  

                                                                                                                      



              13            AS47.30.915(12)(B); E.P. v. Alaska PsychiatricInst.,205 P.3d 1101, 1110  

                                                                                                                                                                              

(Alaska 2009) ("In the end, even though the definitional language of AS 47.30.915(10)  

                                                                                                                                                          

(defining 'likely to cause serious harm') is not identical to the commitment language of  

                                                                                                                                                                                    

AS 47.30.735 (establishing commitment standard of 'likely to cause harm to [self] or  

                                                                                                                                                                                    

others'),  we  think  the  definitional  language  [is]  relevant  to  interpretation  of  the  

                                                                                                                                                                                 

commitment language." (first alteration in original)).  

                                                                                                                   



              14             Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 376 (Alaska 2007)).  

                                                                                                                                                                                          



              15            AS  47.30.915(12)(B)  (providing  that  risk  of  harm  to  others  must  be  

                                                                                                                                                                                  

                                                                                                                                                            (continued...)  



                                                                                         -9-                                                                                 7415
  


----------------------- Page 10-----------------------

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                                                               



            16  

                                                                                                                                   

words.          Further, Luciano has not pointed to any legislative intent or rule of construction  



                                                                 

to support his narrow interpretation.  



                                                                                                                                                 

                        In addition the commonusage of the word "threat" encompasses more than  



                                                                                                                                           

verbal threats.   The American Heritage Dictionary of the English Language defines  



                                                                                                                                               17  

                                                                                                                                                     

"threat" as "an expression of an intention to inflict pain, harm, or punishment."                                                                    It  



                                                                                                  18  

                                                                                                                                     

defines "threatening" as "making or implying threats."                                                 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  



            15          (...continued)  



                                                                                                                        

evidenced "by recent behavior causing, attempting, or threatening harm") (emphasis  

               

added).  



            16         Id.   While it is true that we do not look only to the plain meaning of a  

                                                                                                                                                      

statute when engaging in statutory interpretation, "[w]here a statute's meaning appears  

                                                                                                                                           

clear  and  unambiguous  .  .  .  the  party  asserting  a  different  meaning  bears  a  

                                                                                                                                                     

correspondingly heavy burden of demonstrating contrary legislative intent."  State v.  

                                                                                                                                                     

Fyfe, 370 P.3d 1092, 1095 (Alaska 2016) (alterations in original) (quoting  Univ. of  

                                                                                                                                         

Alaska v. Geistauts , 666 P.2d 424, 428 n.5 (Alaska 1983)).  

                                                                                                         



            17          Threat, A        MERICAN   HERITAGE  DICTIONARY OF THE                                     ENGLISH   LANGUAGE  



(5th ed. 2016).     



            18          Threatening,              AMERICAN              HERITAGE             DICTIONARY               OF      THE       ENGLISH  



LANGUAGE  (5th ed. 2016).                        



                                                                        -10-                                                                   7415
  


----------------------- Page 11-----------------------

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  

                                                        



             19          In re Hospitalization of Jacob S                           ., 384 P.3d 758, 765-66 (Alaska 2016).                                     



            20           The   Transportation   Security   Administration   website   states,   "You   may  



transport unloaded firearms in a locked hard-sided container as checked baggage only.  

                                                                                                                                                                   

Declare the firearm and/or ammunition to the airline when checking your bag at the  

                                                                                                                                                           

ticket counter.             The container must completely secure the firearm from being accessed.                                               

Locked cases that can be easily opened are not permitted."                                                          Transportation Security   

Administration,  TRANSPORTING   FIREARMS   AND   AMMUNITION,   https://www.tsa.gov/  

                               

travel/transporting-firearms-and-ammunition (last visited August 9, 2018);                                                                 see also            49  

C.F.R.   1540.111 (2017).          



            21           The dissent characterizes Luciano's behavior as "ultimately" at page 19, or  

                                                                                                                                                              

"essentially passive," at page 21, in contrast to the assessment of the superior court, and  

                                                                                                                                                          

                                                                                                                                        (continued...)  



                                                                            -11-                                                                       7415
  


----------------------- Page 12-----------------------

                      The superior court was entitled to consider and credit all of this testimony;                           



"[c]onflicting 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  

                                                                                                                                        



           21         (...continued)  



                                                                                                                                        

of the two professionals on whose assessments the magistrate explicitly relied. But both  

                                                                                                                                                 

the airport policeofficer's testimony and Luciano's own admissions establish that he was  

                                                                                                                                    

"balling [his] fists and squaring off against" an officer, conduct that goes beyond merely  

               

passive.  



           22         In re Hospitalization of Jacob S., 384 P.3d at 766.  We have repeatedly  

                                                                                                                              

emphasized:   "We defer to a superior court's credibility determinations, particularly  

                                                                                                                            

when they are based upon oral testimony." Id . at 769 n.36 (quoting Hannah B. v. State,  

                                                                                                                                      

Dep't of Health & Soc. Servs., Office of Children's Servs., 289 P.3d 924, 930 (Alaska  

                                                                                                                                  

2012)); see also In re Hospitalization of Tracy C., 249 P.3d 1085, 1089 (Alaska 2011);  

                                                                                                                                     

Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d  

                                                                                                                                        

264, 274 (Alaska 2011); Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 178 (Alaska  

                                                                                                                                   

2009).  



           23         See In re Hospitalization of Stephen O., 314 P.3d 1185, 1194 & n.26  

                                                                                                                                        

(Alaska  2013).              The  dissent  suggests  that  the  court  erred  by  relying  on  Luciano's  

                                                                                                                              

"ultimately passive," page 19, or "essentially passive," page 21, behavior, but as we have  

                                                                                                                                        

noted, Luciano's physical conduct and body language were not completely passive.  

                                                                                                                                                 

Furthermore, this was not the sole basis for the court's finding; the court also relied, as  

                                                                                                                                            

it was entitled  to  do,  on  its assessment of the officer's  and  Dr.  Blanford's - and  

                                                                                                                                         

Luciano's - credibility.  

                                           



                                                                    -12-                                                              7415
  


----------------------- Page 13-----------------------

                                                                                                                                                                                                                   24  

conviction or belief" that he posed a substantial risk of harm to himself or others.                                                                                                                                     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  



                                   25  

confinement.                                                                                                                                                                                                 

                                         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  

                                                                                                                                                                                            



                  24               Id.  at 1193 (quoting                                In re Johnstone                           , 2 P.3d 1226, 1234 (Alaska 2000)).                                         



                  25               In re Hospitalization of Mark V                                                     ., 375 P.3d 51, 58-59 (Alaska 2016).                                                              



                  26               AS 47.30.915(11).                                  



                                                                                                            -13-	                                                                                                     7415
  


----------------------- Page 14-----------------------

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                                                                                                               

                                                                                                             27   Whether his previous providers would  

Luciano's equivocal testimony that he 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  

                                                                                                                                                                                                            



                27              The    dissent    disagrees,    page    16,    but    we    defer  to  the    magistrate's  



determination of credibility.                                        In re Jacob S.                     , 384 P.3d at 769 n.36.                   



                28              273 P.3d 594, 602 (Alaska 2012).  

                                                                                                  



                29              Id.  

                                        



                                                                                                   -14-                                                                                            7415
  


----------------------- Page 15-----------------------

respondent's need for medication and his inability to follow an outpatient regimen                                                                                                                           



                                                                                                                                                                                                                         30  

supported the magistrate's finding that no less restrictive alternative was available.                                                                                                                                         



                                   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.  

                                                                                                                                                                



                  30               375 P.3d at 59-60.                                 



                  31               See In re Hospitalization of Tracy C.                                                           , 249 P.3d 1085, 1089 (Alaska 2011)                                              



("We'will grant especially great deference when the trial court's factual findings require                                                                                                                       

weighing the credibility of witnesses and conflicting oral testimony.' " (quoting Bigley  

                                                                                                                                                                                                                   

v.  Alaska Psychiatric Inst.                                         , 208 P.3d 168, 178 (Alaska 2009))).                                                               



                                                                                                            -15-                                                                                                      7415
  


----------------------- Page 16-----------------------

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 To  

                                                            

                           Cause Serious Harm."  



                                                                                                                                                                

                           Thefirst question is whether thesuperior court erred in finding that Luciano  



                                                                                                                                                                        

was likely to cause harm to others as a result of his mental illness.  Luciano argues that  



                                                                                                                                                                      

the evidentiary record does not support the superior court's finding, and that it was legal  



                                                                                                                                                      

error to interpret the statutory standard so broadly as to permit involuntary commitment  



                                                                    

based on the evidence before the court.  



                                                                                                                                                                         

                           As wehaverepeatedly emphasized,"[t]heUnited States SupremeCourthas  



                                                                                        

characterized involuntary commitment for a mental disorder as a 'massive curtailment  



              1            I also conclude that the magistrate judge and the superior court judge were                                                                



clearly erroneous in finding that Luciano's behavior implied that he was threatening                                                                    

harm as that term is used in the commitment statute.                                        



                                                                                    -16-	                                                                            7415
  


----------------------- Page 17-----------------------

                                                                                                                                                                     2  

of liberty' that cannot be accomplished without due process of law."                                                                                                    "The Supreme   



Court has therefore determined that before a person can be involuntarily committed, the                                                                                                               



court must find in addition to mental illness either: (1) that the person presents a danger                                                                                                 



to   self   or   others;   or   (2)   that   the   person  is   'helpless   to   avoid   the   hazards   of  

                                    3   The two requirements for commitment, which are reflected in Alaska's  

freedom . . . .' "                                                                                                                                                                      



involuntary commitment statute respectively as "likely to cause harm" and "gravely  

                                                                                                                                                                                        

disabled,"4 derive fromtwo independent state interests. As we explained in Rust v. State,  

                                                                                                                                                                                                



                                [a] person  who  presents  a  danger  to  others  is  committed  

                                                                                                                                                   

                               under the state's police power.  A person who requires care  

                                                                         

                                and treatment is committed through exercise of the state's  

                                                                                                                                                              

                               parens patriae power.  One who poses a danger to himself is  

                                                                                                                                                                          

                                committed under a combination of both powers.[5]  

                                                                                                                               



The Supreme Court has repeatedly emphasized that a person may not be committed for  

                                                                                                                                                                                                      



treatment against his will unless one of these state interests is sufficiently strong to  

                                                                                                                                                                                                        

outweigh the respondent's constitutional right to liberty.6  "The precise wording of these  

                                                                                                                                                                                                 



two additional requirements is left to the states, 'so long as they meet the constitutional  

                                                                                                                                                                             



                2               Wetherhorn v. Alaska Psychiatric Inst.                                                        , 156 P.3d 371, 375-76 (Alaska                              



2007) (first quoting                           Humphrey v. Cady                            , 405 U.S. 504, 509 (1972), then citing                                                  Addington  

v.  Texas, 441 U.S. 418, 425 (1979)),                                               overruled on other grounds by In re Hospitalization                                  

of Naomi B.                  , 435 P.3d 918 (Alaska 2019);                                          see also In re Hospitalization of Gabriel C.                                                           ,  

324 P.3d 835, 839 (Alaska 2014);                                                 Rust v. State                  , 582 P.2d 134, 139 (Alaska 1978).                                  



                3               Wetherhorn, 156 P.3d at 376 (firstciting O'Connor v. Donaldson, 422 U.S.  

                                                                                                                                                                                                   

563, 575 (1975), and quoting id. at 574 n.9).  

                                                                                               



                4               AS 47.30.735(c); see AS 47.30.915(9), (12) (definitions).  

                                                                                                                                          



                5               582 P.2d 134, 139 n.16 (emphasis in original); see also Addington, 441  

                                                                                                                                                                                                    

U.S. at 426.  

                  



                6               See O'Connor, 422 U.S. at 575-76; Addington , 441 U.S. at 426-27.  

                                                                                                                                                                             



                                                                                                  -17-                                                                                           7415
  


----------------------- Page 18-----------------------

                                        7 

minimum.'   "     Accordingly,   although   this   case   concerns   a   question   of   statutory  



interpretation, the correct interpretation of the statute necessarily includes an analysis of                                                                                                                                                         



its constitutional limits.                        



                                       Luciano's commitment was based solely on a theory that he was a danger                                                                                                                         



to others.                   As such, the State's                                       parens patriae                               power is not implicated in this case.                                                                     The  



question before us is whether, on the evidence presented, the State could constitutionally                                                                                                                     



invoke its police power to confine Luciano against his will by relying on the statutory                                                                                                                                           



standard of "likely to cause harm to others."                                                             



                                       A respondent is "likely to cause harm" for the purpose of AS 47.30.730 if                                                                                                                                        



he "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,                                                                                                                                              

                                                                                                                                                                                                               8        There  is  no  

physical   abuse,   or  substantial   property   damage   to   another   person."                                                                                                                                                                  



indication in the record that Luciano ever caused harm or attempted to harm anyone.  

                                                                                                                                                                                                                                                               



Thus, the key question is whether, under a clear and convincing evidence standard,  

                                                                                                                                                                                                                                



Luciano's  behavior  was  "threatening  harm"  to  an  extent  that  would  evidence  a  

                                                                                                                                                                                                                                                       



substantial risk of harm to others.  

                                                                              



                                       Thecourt points tothefollowing as evidencethat Luciano was "threatening  

                                                                                                                                                                                                                        



harm":  Luciano lost or left his job at the VA after a period of "behaving erratically"; he  

                                                                                                                                                                                                                                                     



"acted irately at the airport"; his behavior in interactions with airport and API staff were  

                                                                                                                                                                                                                                              



viewed as "threatening" and "menacing"; and he had weapons in his luggage that were  

                                                                                                                                                                                                                                              



                    7                   Wetherhorn, 156 P.3d at 376 (quoting                                                                           Addington , 441 U.S. at 431).                                         



                    8  

                                                                                                                                                                                                                                            

                                       AS 47.30.915(12)(B); see E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101,  

                                         

 1110 (Alaska 2009).  



                                                                                                                        -18-                                                                                                                 7415
  


----------------------- Page 19-----------------------

                                                                                          9  

loaded and not locked away as TSA regulations require.                                       



                                                                                                                        

                     The court focuses narrowly on the issue whether the phrase "threatening  

                                                                                                                   10   In doing so,  

                                                                                                                                       

                                                                                                        

harm," as it is used in AS 47.30.915(12)(B), is limited to verbal threats. 



the court overlooks the fact that Luciano made no threats at all, verbal or otherwise.  

                                                                                                                                             



During cross-examination, Dr. Blanford was asked whether Luciano had "made any  

                                                                                                                                     



threats to anyone [at API]."  Dr. Blanford appears to have understood the question as  

                                                                                                                                        



referring to verbal threats, answering, "No, he has not made any verbal threats . . . ." But  

                                                                                                                                      



Dr. Blanford also continued, explaining that "at the worst, [Luciano is] described as  

                                                                                                                                        



menacing and intense," "not able to engage," and "[v]ery guarded."  (Emphasis added.)  

                                                                                                                                             



Further, Dr. Blanford testified that he was not aware of Luciano making "threats to  

                                                                                                                                        



others or indications of desire to harm himself." The court also appears to find a "threat"  

                                                                                                                               

                                                                                             11  But although Dr. Blanford  

in Luciano's tendency to clench his fists and stare at people.                                                                

                                                                                   



testified that he interpreted this as a threat, Luciano's behavior was ultimately passive.  

                                                                                                                                             



                      Citing the American Heritage dictionary, the court defines a "threat" as "an  

                                                                                                                                      

expression of an intention to inflict pain, harm, or punishment."12  I find no indication  

                            



           9         Opinion  at  10.   I  note  that  it  was  most  certainly  unwise  for  Luciano  to  enter  



the   unsecured   (i.e.,   non-sterile)   airport   area   carrying   his   unlocked   rifle   case   that  

contained  an  unloaded  rifle,  two  loaded  revolvers,  and  another  loaded  handgun.   But  he  

violated   no   TSA   regulation.    It   is   not   until   the   passenger   presents   himself   for TSA  

inspection  of  his  person  and  accessible  property  before  he  enters  a  sterile  area  that  he  is  

prohibited  from  having  a  weapon  on  or  about  his  person.   See  49  C.F.R.    1540.111(a),  

(c) (2019). There is no evidence in the record that Luciano presented himself for TSA  

                    

inspection.  



           10        Opinion at 10.  

                                        



           11        Opinion at 3, 11.  

                                            



           12        Opinion at 10 (quoting Threat, AMERICAN  HERITAGE  DICTIONARY  OF  THE  

                                                                        

ENGLISH  LANGUAGE  (5th  ed.  2016)).  



                                                                  -19-                                                             7415
  


----------------------- Page 20-----------------------

in the record of Luciano expressing or even suggesting an intent to inflict pain, harm, or                                                                                                                                                 



punishment on anyone.                                              I also find nothing in the record that would materially dispute       



Luciano's testimony that he had no intent or desire to harm anyone, either during or after                                                                                                                                          



the incident at the airport.                        



                                     I do not believe the involuntary commitment statute can be interpreted so                                                                                                                            



broadly as to encompass Luciano's behavior in this case.                                                                                                                In   Wetherhorn v. Alaska                            



Psychiatric   Institute,   we   explained   that   the   "danger   to   self   or   others"   standard   "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."                                                                                              13  



                                     In  Kansas   v.   Hendricks,   the   Supreme   Court   explained   that   it   is  

                                                                                                                                                                                                                                         



constitutionally permissible for a state "in narrow circumstances [to] provide[] for the  

                                                                                                                                                                                                                                        



forcible civil detainment of people who are unable to control their behavior and who  

                                                                                                                                                                                                                                    

thereby pose a danger to the public health and safety."14  The Court's analysis in that case  

                                                                                                                                                                                                                                     



indicated that a permissible commitment statute is one that "narrows the class of persons  

                                                                                                                                                                                                                           

eligible for confinement to those who are unable to control their dangerousness."15  

                                                                                                                                                                                     

                                     The Ninth Circuit's opinion in Suzuki v. Yuen16 is also relevant here. In that  

                                                                                                                                                                                                                                      



case, the Ninth Circuit concluded that portions of Hawaii's involuntary commitment  

                                                                                                                                                                                                            

 statute were unconstitutional.17  In language similar to Alaska's statute, Hawaii's statute  

                                                                                                                                                                                                                              



authorized involuntary hospitalization for a person who "is mentally ill" and who "is  

                                                                                                                                                                                                                                        



                   13                 156 P.3d 371, 376 (Alaska 2007) (emphasis added).
                                                                         



                   14                521 U.S. 346, 357 (1997) (emphasis added).
                                                            



                   15
               Id. at 358, 364 (emphasis added).  

                                                                                                             



                   16                617 F.2d 173 (1980), aff'g in part Suzuki v. Alba, 438 F. Supp. 1106 (D.  

                                                                                                                                                                                                                                       

Haw. 1977).  

                 



                   17                Id. at 174.  

                                                     



                                                                                                                   -20-                                                                                                           7415
  


----------------------- Page 21-----------------------

                                                                18  

dangerous to himself or others."                                     The district court had held that the constitutional                    



standard for involuntary commitment "is that which requires a finding of imminent and                                                                           



substantial danger as evidenced by a recent overt act, attempt or threat," and had struck                                                                  

                                                                                                                              19    The Ninth Circuit  

down the statute because it was "ambiguous" as to this standard.                                                                                         



affirmed the district court's ruling, adding that "it is unconstitutional to commit one who  

                                                                                                                                                               



                                                                      20  

does not pose an imminent danger." 

                                                     



                          In this case, it is clear from the record that Luciano never committed or  

                                                                                                                                                                   



attempted an act to cause harm to others, and he did not make any threats - that is, any  

                                                                                                                                                                



expressions of an intent or desire to cause imminent harm.  And there is no indication in  

                                                                                                                                                                   



the record that Luciano was unable to control his behavior to prevent himself fromacting  

                                                                                                                                                            



violently.             On  the  contrary,  Luciano's  conduct  was  essentially  passive:                                                               he  was  

                                                                                                                                                              



withdrawn and "very guarded," and when forced to interact with airport and API staff  

                                                                                                

he was not "unable to control [his] behavior,"21 but merely tensed up, clenched his fists,  

                                                                                                                                                              

                     22   Luciano's behavior was concededly unusual, and it is understandable that  

and stared.                                                                                                                                                     

         



his behavior would be cause for concern to those who interacted with him.  I do not  

                                                                                                                                                                 



dispute that it was appropriate for airport police to take Luciano into emergency custody  

                                                                                                                                                        



for evaluation, but I disagree that there was clear and convincing evidence to support  

                                                                                                                                                        



             18          Id.  at   175  n.2  (quoting  Haw.  Rev.  Stat.    334-60(b)(1)  (1976)).  



             19          Id.  at   178  (quoting  Suzuki  v.  Alba ,  438  F.  Supp.  at   1110).  



             20          Id.  (emphasis  added).  



             21          Kansas  v.  Hendricks,  521  U.S.  346,  357  (1997).  



             22           If  the  reader  travels  frequently  on  commercial  airlines  in  the  United  States,  



I  hazard  a  guess  the  reader  has  observed  passengers  standing  in  line  for  TSA  screening  

or  going  through  the  TSA  screening  process  tensed  up,  clenching  their  fists,  and  staring.   

While   such   behavior   may   result   in   additional   TSA   screening,   it   does   not   warrant  

involuntary  commitment  in  a  state  mental  institution.  



                                                                               -21-                                                                          7415
  


----------------------- Page 22-----------------------

 involuntarily committing him for up to 30 days at a psychiatric institute.                                                                                                                                  



                                      "Loss   of   liberty   calls   for   a   showing   that   the   individual   suffers  from  

                                                                                                                                                                                                        23  I believe that  

 something more serious than is demonstrated by idiosyncratic behavior."                                                                                                                                                                



 interpreting Alaska's involuntary commitment statute so broadly as to allow a finding  

                                                                                                                                                                                                                            



 on the facts of this case that Luciano was "likely to cause harm to . . . others" raises  

                                                                                                                                                                                                                                 



 serious questions about the statute's constitutionality as applied to him.   The State  

                                                                                                                                                                                                                                   



 certainly  "has  authority  under  its  police  power  to  protect  the  community  from  the  

                                                                                                                                                                                                                                        

 dangerous tendencies of [those] who are mentally ill,"24  but in order to exercise this  

                                                                                                                                                                                                                                       



power and confine Luciano against his will, I would hold that the State was required to  

                                                                                                                                                                                                                                             



 show that Luciano had "demonstrated the affirmative ability or inclination to inflict harm  

                                                                                                                                                                                                                                    

to . . . another person."25   In this case, the State's showing was not sufficient under a clear  

                                                                                                                                                                                                                                   



 and convincing evidence standard to satisfy this requirement.  

                                                                                                                                        



                   23                Addington v. Texas , 441 U.S. 418, 427 (1979).                                                                                       As the Supreme Court in  



Addington  explained:  



                                      At one time or another every person exhibits some abnormal                                                                                   

                                      behavior which might be perceived by some as symptomatic                                                                           

                                      of a mental or emotional disorder, but which is in fact within                                                                                       

                                      a range of conduct that is generally acceptable.                                                                                      Obviously,  

                                      such behavior is no basis for compelled treatment and surely                                                                                          

                                      none for confinement.                                           However, there is the possible risk                                                         

                                      that a factfinder might decide to commit an individual based                                                                                           

                                      solely on a few isolated instances of unusual conduct.                                                                        



Id.  at 426-27.   



                   24                Id. at 426.  

                                                      



                   25                 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 376 (Alaska 2007),  

                                                                                                                                                                                                                                

 overruled on other grounds by In re Hospitalization of Naomi B., 435 P.3d 918 (Alaska  

                                                                                                                                                                                                                            

 2019).  



                                                                                                                    -22-                                                                                                            7415
  


----------------------- Page 23-----------------------

                                 My   interpretation   of   the   "likely   to  cause   serious   harm"   standard   is  



consistent withhowthat aspect                                               ofAlaska's involuntary commitment statutehastypically                                                                



been applied.  Our jurisprudence in this area is not well-developed; indeed, we appear   



to have heard only four cases involving a commitment order based on a danger to                                                                                                                                 

                 26  one of which we affirmed, while the other three were dismissed as moot.  But  

others,                                                                                                                                                                                                     



in allfour cases, therespondents' conduct was substantially moreserious than Luciano's.  

                                                                                                                                                                                            



                                 In In re Jacob S. the respondent was hospitalized after he stopped taking  

                                                                                                                  



his  medication  and  his  domestic  partner  grew concerned  that  he  was  experiencing  

                                                                                                                                                                                     

paranoid delusions and acting violently toward their neighbor.27                                                                                                 At a hearing before a  

                                                                                                                                                                                                                   



magistrate judge, both the partner and the neighbor testified about Jacob's behavior:  

                                                                                                                                                                                         



                                 Jacob's neighbor testified that Jacob had filed a restraining  

                                                                                                                                                         

                                 order against her in November 2014 alleging that she was  

                                                                                                                                                                           

                                 stalking him, had broken into his house, and had been tasing  

                                                                                                                                                                      

                                 him with a "stop gun." The neighbor also testified to her  

                                                                                                                                                                            

                                 suspicion that Jacob had thrown a rock through her window  

                                                                                                                                                                 

                                 and  attempted  to  set  fire  to  her  house  with  a  "Molotov  

                                                                                                                                                            

                                 cocktail" on two separate occasions the previous month.  

                                                                                                                                                           



                                                  Jacob's partner testified that she recognized several  

                                                                                                                                                                   

                                 bottles from the "Molotov cocktail" incident as having come  

                                                                                                                                                                        

                                 from their house. She also testified that Jacob had been doing  

                                                                                                                                                                       

                                 "strange things" and then did not remember what he had  

                                                                                                                                                                           

                                 done,  for  example  connecting  an  electric  welder  to  their  

                                                                                                                                                                        

                                 house's back door. He had unplugged the telephone then  

                                                                                                                                                                         



                 26              Several other cases have involved commitment orders based on a danger   



to self theory.                     See, e.g.             ,  In re Hospitalization of Daniel G.                                                 , 320 P.3d 262, 265 (Alaska                       

2014);  In re Hospitalization of Joan K.                                                      , 273 P.3d 594, 599 (Alaska 2012);                                                   E.P. v. Alaska     

Psychiatric Inst.                       , 205 P.3d 1101, 1104-06 (Alaska 2009). Because that theory implicates                                                                               

not only the State's police power but also its                                                               parens patriae                       power, the relevant balance                      

of interests is different in those cases.                                                             And the State did not argue to the superior                                                

court - and does not argue now - that Luciano's illness posed any threat to himself.                                                                                                             



                 27              384 P.3d 758, 762 (Alaska 2016).  

                                                                                                     



                                                                                                      -23-                                                                                               7415
  


----------------------- Page 24-----------------------

                          denied doing so. He layered towels, cardboard, newspaper,                                        

                          and pillows over the house's windows and couch to protect   

                          himself from the neighbor's "tasing."                                      [28]  



On appeal, we concluded that the evidence supported a finding that Jacob was a danger  

                                                                                                                                                              



to others.  We focused in particular on Jacob's involvement "with both the rock and  

                                                                                                                                                                    



'Molotov cocktail' incidents" and his delusions about his neighbor "manifesting in  

                                                                                                                                                                       



actions like 'setting dangerous booby traps, taking preemptive activities, or going to  

                                                                                                                                                                        

extreme measures to ensure security.' "29  

                                                                             



                          In In re Reid K., the respondent, who had been diagnosed with paranoid  

                                                                                                                                                          



schizophrenia ten years earlier, experienced "delusions and severe command auditory  

                                                                                                                                                           



hallucinations in the form of seven different voices that often instruct him to harm and  

                                                                                                                                                                     

kill other people, including members of his family and his home village."30   In 2012, the  

                                                                                                                                                                      



year before the events leading to Reid's commitment, Reid tried to kill his brother with  

                                                                                                                                                                   

a sword.31            By August 2013 Reid's hallucinations "had intensified and were telling him  

                                                                                                                                                                    



to carry out a mass murder, beginning with his family and continuing to each of the 400  

                                                                                                                                                                    

residents of his  village."32                            Reid  obtained  a firearm specifically  for  the purpose of  

                                                                                                                                                                       



carrying out this killing, but his plan was thwarted because the store Reid visited to buy  

                                                                                                                                                                    

ammunition did not have the correct type of bullets in stock.33                                                                     At the commitment  

                                                                                                                                                  



hearing, one of Reid's psychiatrists testified "that the only reason Reid did not carry out  

                                                                                                                                                                     



             28           Id.  



             29           Id.  at 766.   



             30            357 P.3d 776, 777 (Alaska 2015).                      



             31           Id.  



             32           Id.  at 778.   



             33           Id.  



                                                                                  -24-                                                                           7415
  


----------------------- Page 25-----------------------

                                                                                                                                 34  

the planned village killings was because Reid did not have the bullets."                                                             The trial court     



found  Reid   to be a danger                         to   others and ordered                     him involuntarily committed; we                          



dismissed Reid's subsequent appeal as moot because his period of commitment had                                                                          

expired.35  



                         In  In  re  Dakota  K.,  another  appeal  that  was  dismissed  as  moot,  the  

                                                                                                                                            



respondent was committed on the basis that he was "likely to cause harm to others" after  

                                                                                                                                                        

subjecting his father to a "reign of terror."36                                    Over a span of approximately one month,  

                                                                                                                                                   



Dakota had on several occasions "rammed the door [to his father's apartment] with a  

                                                                                                                                                              



heavy metal tool or a cart," had threatened his father with a wrench, had "removed the  

                                                                                                                                                          



key from [his father's] mobility scooter, leaving him immobilized," and had repeatedly  

                                                                                                                                             



sent text messages to his father "asking [him] whether he wanted to die and saying that  

                                                                                                                                                         

                                                      37    While at API for an evaluation, Dakota continued to  

[he] did not deserve to live."                                                                                                                              

                                             



behave aggressively:  he "threatened to 'shove soap down a staff member's throat' and  

                                                                                                                                                         



warned another that he would cause 'a blood bath on this unit' if he did not receive his  

                                                                                                                                                           

medication."38  



                         In  In  re  Mark  V.,  which  was  also  dismissed  as  moot  on  appeal,  the  

                                                                                                                                                         



respondent was committed involuntarily on a finding that he was likely to cause serious  

                                                                                                                                                   

harm to others.39               The superior court "relied on the evidence of Mark's recent behavior,  

                                                                                                                                               



            34          Id.  at 779.
   



            35  

                                    

                        Id. at 779-80.
  



            36  

                                                                                       

                         354 P.3d 1068, 1069-70 (Alaska 2015).
  



            37          Id.
  



            38          Id. at 1070.  

                                    



            39  

                                                                                                                                                   

                        In re Hospitalization of Mark V., 324 P.3d 840, 842-43 (Alaska 2014),  

                                                                                                                                       (continued...)  



                                                                            -25-                                                                      7415
  


----------------------- Page 26-----------------------

including   evidence   that   he   threatened   a   physician,   [and]   punched   a   [hospital]   staff  

member."40  



                    The  common  thread  in  all  four  of  these  cases  -  although  the  three  

                                                                                                                         



dismissed as moot are of course not binding precedent - is that the respondent in each  

                                                                                                                          



case either actively engaged in conduct that actually caused harm, planned or attempted  

                                                                                                                  



to cause harm, or expressed a clear intent to cause harm. In other words, the respondents  

                                                                                                               



in  those  cases  "demonstrated  the  affirmative  ability  or  inclination  to  inflict  harm  

                                                                                                                        

to . . . another person."41           By contrast, Luciano did not harm anyone, did not attempt to  

                                                                                                                              



harm anyone, and did not make any threats - verbal or otherwise.  His behavior may  



have been concerning to those interacting with him, but it did not rise to a level that  

                                                                                                                           



would justify the State's exercise of its police power to confine him against his will.  

                                                                                                                       



          B.	       The Superior Court Did Not Give Due Consideration To Potential  

                                                                                                                  

                    Less-Restrictive Alternatives To Involuntary Commitment.  

                                                                                            



                    Luciano also argues that the superior court erred in determining that no less  

                                                                                                                            



restrictive facility was available that would adequately  serve the State's  interest in  

                                                                                                                             



protecting Luciano and the public.  The involuntary commitment statutes require that a  

                                                                                                                               



commitment petition "allege that the evaluation staff has considered but has not found  

                                                                                                                        



that there are any less restrictive alternatives available that would adequately protect the  

                                                                                                                            



          39        (...continued)  



                                                                                                                     

overruled on other grounds by In re Hospitalization of Naomi B., 435 P.3d 918 (Alaska  

2019).  



          40        Id. at 843.  

                             



          41        Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 376 (Alaska 2007),  

                                                                                                                       

overruled on other grounds by In re Hospitalization of Naomi B., 435 P.3d 918 (Alaska  

                                                                                                                     

2019).  



                                                             -26-	                                                       7415
  


----------------------- Page 27-----------------------

                                              42  

respondent or others."                             In  In re Mark V.                  we held that a corresponding finding that no                                           



less restrictive alternative is available is a constitutional prerequisite to involuntary                                                                 

                                                                                                                                                                     43    We  

commitment and "critical to the protection of the respondent's liberty interests."                                                                                         



also explained that "[t]his is not a secondary concern, nor is it . . . something to be  

                                                                                                                                                                             

considered only after the court has decided that the respondent should be committed."44  

                                                                                                                                                      



                            In this case, Luciano expressed a clear preference for treatment at the VA  

                                                                                                                                                                           



over hospitalization at API. Luciano already had a history of treatment at the VA, where  

                                                                                                                                                                      



he had previously been evaluated and diagnosed with adjustment disorder.  It is clear  

                                                                                                                                                                        



from the record that Dr. Blanford and other API staff members were aware of Luciano's  

                                                                                                                                                              



existing relationship with the VA.  But Dr. Blanford's testimony revealed that API's  

                                                                                                                                                                      



evaluation of Luciano did not include reviewing his mental health records from the VA,  

                                                                                                                                                                          



and it did not include speaking to Luciano's medical providers at the VA about his  

                                                                                                                                                                            



mental health history, what his treatment had been, or what treatment options might be  

                                                                                                                                                                              



available  to  Luciano  at  the  VA  as  an  alternative  to  involuntary  commitment  at  a  

                                                                                                                                                                               



psychiatric facility.  

                                           



                            Themagistratejudge's findingsontherecord donot addresswhattreatment  

                                                                                                                                                                



options might have been available to Luciano at the VA or whether alternative treatment  

                                                                                                                                                               



options would be effective.  Rather, the magistrate judge focused entirely on Luciano's  

                                                                                                                                                              



likelihood of complying with outpatient treatment, asserting that when asked "whether  

                                                                                                                                                                



he would be willing to go to treatment, [Luciano] . . . distinguished between whether he  

                                                                                                                                                                              



was willing to go  and  whether he would go."   On that basis, the magistrate judge  

                                                                                                                                                                      



concluded that "it doesn't sound like [Luciano] was necessarily going to follow up with  

                                                                                                                                                                          



              42           AS 47.30.730(a)(2).   



              43            375 P.3d 51, 58-59 (Alaska 2016).                         



              44           Id.  



                                                                                     -27-                                                                               7415
  


----------------------- Page 28-----------------------

psychiatric   out-patient   treatment."     But   the   magistrate   judge   misstated   Luciano's  



testimony.    Luciano unambiguously testified that he was willing to "seek treatment                                                                                                                                                    



through the VA" and that he was "willing to be evaluated by the VA."                                                                                                                                                         When asked   



whether he was "willing to take medication if [the VA] recommended medication,"                                                                                                                                               



Luciano answered that he did not believe he needed medication, but he again reaffirmed                                                                                                                                                



that he "would go see a doctor," and that if released from API he would be attending a                                                                                                                                                                            



doctor's appointment at the VA the very next day.                                                                                          



                                         The State had the burden to prove,                                                                      by clear and convincing evidence                                                                      , that   



therewereno                              less restrictivealternatives                                                   availablethatwould adequately                                                                  protectLuciano   

                                            45   Luciano's testimony that he did not believe he needed medication does  

and the public.                                                                                                                                                                                                                                         



raise some questions about whether he would be medication compliant, but this alone  

                                                                                                                                                                                                                                                     



was not sufficient to meet the burden of proof.  I reiterate that "a mentally ill person's  

                                                        



belief that [he] is not mentally ill cannot be the measure by which a court finds that there  

                                                                                                                                                                                                                                                       

                                                                                                          46  Furthermore, "it is illogical and insufficient for a  

are no less restrictive alternatives."                                                                                                                                                                             

                                                                  



doctor to opine that there are no less restrictive alternatives when the doctor has done  

                                                                                                                                                                                                                                                       

nothing to evaluate any less restrictive alternatives."47                                                                                                                     "Under these circumstances,  

                                                                                                                                                                                                                        



where the testifying doctor[] utterly failed to make any effort to contact [Luciano's] prior  

                                                                                                                                                                                                                                                       



treating physician . . . to explore less restrictive alternatives, I believe the doctor['s]  

                                                                                                                                                                                                                                       



                    45                  Id. ;  see also Bigley v. Alaska Psychiatric Inst.                                                                                        , 208 P.3d 168, 185 (Alaska                                 



2009) (holding in the involuntary medication context that "the court was                                                                                                                                                          required  to  

evaluate whether [the respondent's] proposed alternative                                                                                                                 would be feasible and effective                                    

in promoting the same compelling state interests that justified API's proposed treatment"                                                                                                                                             

(emphasis added)).   



                    46                  In  re  Hospitalization  of  Joan  K.,  273  P.3d  594,  606  (Alaska  2012)  

                                                                                                                                                                                                                                                  

(Stowers, J., dissenting).  

                                       



                    47                  Id. (emphasis in original).  

                                                                                           



                                                                                                                             -28-                                                                                                                      7415
  


----------------------- Page 29-----------------------

conclusory opinions are insufficient under any standard of proof to support the superior                                                                   

court's finding that no less restrictive option was available."                                                        48  



III.         CONCLUSION  



                                                                                                                                                      

                          I conclude that the evidence on record was insufficient under a clear and  



                                                                                                                                                               

convincing evidence standard to support a finding that Luciano was a danger to others  



                                                                                                                                                                 

and subject to involuntary commitment. Additionally, I conclude that the superior court  



                                                                                                                                                    

clearly erred in failing to give due consideration to potential alternatives to involuntary  



                                                                                                                         

commitment.  For these reasons, I would reverse and vacate the superior court's order  



                                                                                                                                                              

involuntarily committing Luciano for mental health treatment, and I respectfully dissent  



                                  

from the court's opinion.  



             48           Id. at 607.  

                                                



                                                                                 -29-                                                                                  7415  

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