State v. M. L.

                                      394

                Submitted August 31, reversed October 27, 2021


                     In the Matter of M. L.,
             a Person Alleged to have Mental Illness.
                      STATE OF OREGON,
                           Respondent,
                                v.
                              M. L.,
                            Appellant.
                  Marion County Circuit Court
                      20CC04744; A174535
                                   

    Appellant seeks reversal of a judgment involuntarily committing him to the
Oregon Health Authority for up to 180 days and an order prohibiting him from
purchasing or possessing firearms. On appeal, he argues that the evidence was
legally insufficient to prove that he suffered from a mental disorder that makes
him a “danger to self.” ORS 426.005(1)(f)(A). Held: The Court of Appeals concluded that the evidence in this case does not reflect the kind of particularized,
near-term threat that is required to justify appellant’s involuntary commitment
on the ground that he is a danger to himself. Thus, the evidence was legally
insufficient to support the trial court’s determination that appellant was a danger to self within the meaning of ORS 426.005(1)(f)(A).
    Reversed.



    Jennifer K. Gardiner, Judge pro tempore.
    Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    TOOKEY, J.
    Reversed.
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          TOOKEY, J.
         Appellant seeks reversal of a judgment involuntarily committing him to the Oregon Health Authority for
up to 180 days. He argues that the evidence was legally
insufficient to prove that he suffered from a mental disorder that makes him a “danger to self.” ORS 426.005(1)(f)(A);
ORS 426.130(1)(a)(C), (1)(a)(D), (2). For the reasons that follow, we agree with appellant and, accordingly, reverse.1
          Neither party has requested that we review this
matter de novo, and we conclude that this is not an “exceptional” case that warrants de novo review. See ORAP 5.40
(8)(C) (providing that the court will exercise its discretion to
review de novo “only in exceptional cases”). Accordingly, “we
view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable
to the trial court’s disposition and assess whether, when so
viewed, the record was legally sufficient to permit that outcome.” State v. L. D., 

, 

(2021) (internal quotation marks omitted). “Whether the
evidence is sufficient to support a determination that appellant is a danger to self is a question we review as a matter
of law.” 

 (internal quotation marks and brackets omitted).
        The relevant facts are undisputed. Appellant has
been diagnosed with bipolar disorder. The commitment
hearing in this case took place in August 2020, when appellant was in the midst of a “manic episode.” During such episodes, appellant is erratic and delusional, can be guarded
and paranoid, does not sleep much, and believes “very wild
ideas.”
          During the commitment hearing, the state presented evidence regarding two incidents upon which the
trial court ultimately based its ruling that appellant was
a danger to himself within the meaning of ORS 426.005
(1)(f)(A). Appellant’s brother witnessed both incidents, and
at the commitment hearing, he testified as to both.
    1
      Appellant also appeals an order prohibiting him from purchasing or possessing a firearm. Because that order is dependent upon the court’s determination that appellant is a danger to himself, and because we reverse that determination, we also reverse—without further discussion—the order prohibiting
appellant from purchasing or possessing a firearm.
396                                                State v. M. L.

         First, prior to the commitment hearing in this case,
appellant had “covered himself” with “household chemicals,” including splashing or “dousing” himself with bleach,
because appellant believed that “the government is out to get
him and that they’re exposing him to radiation.” Appellant’s
brother testified that that incident made him concerned
for appellant’s safety because “you don’t know what kind
of allergic reaction you can have on the skin” from bleach,
and he did not know if appellant was going to “decide[ ] to
ingest” the bleach or other chemicals. Nevertheless, appellant’s brother testified that he did not see appellant “drink
or imbibe” any of the household chemicals.
        Second, prior to the commitment hearing in this
case, appellant decided to walk from his house in Saint
Paul, Oregon, to Portland, Oregon. During his testimony,
appellant’s brother explained:
   “[W]e live out in the country in Saint Paul and [appellant]
   decides to leave in the middle of the night just walking
   down the road because he believes he has some special
   things that he needs to do in Portland with all these protests that he’s involved, he believes he’s involved in them.
   Or he, he believes he can resolve them, the problem, all the
   problems that are going on with the protests.”
        Appellant’s brother further testified, regarding
appellant’s decision to walk to Portland, that appellant told
him:
   “[T]here’s a mission that needs to be executed and that
   [appellant] just needs to get to his destination to save people, to help people, to carry out a master plan.”
        Appellant’s brother also testified that appellant has
never harmed himself or threatened to harm himself, and
that appellant does not acknowledge that he has a mental
disorder.
        A psychiatrist who had treated appellant at the
hospital in Salem, Oregon, for the four days prior to the
commitment hearing testified that there was no record of
appellant engaging in suicidal behaviors or self-harm and
that, during appellant’s admission at the hospital in Salem,
appellant had refused medication on eight of the 10 occasions
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he had been scheduled to take it. Additionally, evidence was
presented that appellant was hospitalized for psychiatric
issues in 2017, and that, prior to that hospitalization, appellant was “picked up in somewhere in Beaverton[, Oregon,]
walking around the streets shoeless, blisters all over his
feet.”
          At the end of the commitment hearing, the trial
court determined that the state had met its burden of demonstrating that appellant was “dangerous to self” within the
meaning of ORS 426.005(1)(f)(A). The trial court explained
that appellant “is actively manic,” and that, when appellant
is manic, “he’s erratic, he makes poor decisions, he doesn’t
sleep, he rambles on regarding conspiracy theories, believes
in crazy things, [and] is delusional.” The trial court further
explained that appellant’s mania “leads him to make poor
decisions that put himself in danger,” and “specifically the
danger he puts himself in is splashing, dousing himself with
bleach.” The trial court noted that appellant’s brother “specifically remembered the bleach because it was concerning
enough to him in the way that [appellant] was pouring it on
his body that it could cause harm or damage to him,” and
that appellant’s brother “also described how [appellant] left
the home in the middle of the night to walk to Portland,
[which] put [appellant] in a position of harm as well.” As
a result, the trial court determined that “the current indicators and symptoms of [appellant’s] mental illness and
behaviors that he manifests during his mental illness …
do show that threatened harm to himself is likely to occur.”
        The trial court then issued a judgment committing
appellant to the Oregon Health Authority for a period not to
exceed 180 days, which appellant appeals.2
        Under Oregon law, a person may be involuntarily
committed if the person is determined to be a “person with
mental illness.” ORS 426.130(1)(a)(C). As pertinent to this
appeal, a “person with mental illness” includes someone
    2
      The trial court also determined that the state had not met its burden to
demonstrate that appellant was “dangerous to … others” within the meaning
of ORS 426.005(1)(f)(A) and that the state had not met its burden to demonstrate
that appellant was unable “to provide for basic personal needs that are necessary to avoid serious physical harm” within the meaning of ORS 426.005(1)(f)(B).
Those two determinations are not at issue on appeal.
398                                            State v. M. L.

who suffers from a “mental disorder” and, as a result of that
disorder, is “[d]angerous to self.” ORS 426.005(1)(f)(A). The
state bears the burden of proving the statutory requirement
of “dangerous to self” by “clear and convincing evidence.”
ORS 426.130(1)(a).
          Our cases “have uniformly imposed a rigorous
threshold with respect to what the state is required to show
to establish that an individual is dangerous to self … as
a matter of law.” State v. S. R. J., 

, 

 (2016) (internal quotation marks omitted). “Although
‘dangerous’ is a common term that, in ordinary usage, may
refer to a broad range of threats, the type of ‘danger’ necessary to justify an involuntary civil commitment is a narrow
range of serious and highly probable threats of harm.” 

 To
permit “commitment on the basis that a person is dangerous
to self, the clear and convincing evidence must partake of
a particularized, and highly probable, threat to the appellant’s safe survival, including a risk of substantial harm, in
the near future.” 

 (internal quotation marks and brackets
omitted). That is, the threatened harm to self “must involve
‘serious’ and ‘actual’ physical harm in the ‘near term.’ ” 

(quoting State v. B. B., 

, 

(2010)). “[T]he prospect of serious physical harm must be
based on more than apprehensions, speculations, and conjecture.” Id. at 750 (internal quotation marks omitted).
“Delusional or eccentric behavior—even behavior that may
be inherently risky—is not necessarily sufficient to warrant commitment.” Id. (internal quotation marks omitted).
“We impose those rigorous standards because of the serious
deprivation of liberty and social stigma that are attendant
to a civil commitment, and the fact that such a preventive
confinement is predicated on a prediction of future behavior.” Id. at 749 (internal quotation marks omitted).
         On appeal, appellant contends that “the record in
this case lacks clear and convincing evidence that due to a
mental disorder appellant presented a particularized and
highly probable threat of serious physical injury to himself
in the near term.” More specifically, appellant contends that
the “evidence presented at the appellant’s hearing was insufficient to prove that he was in danger of causing himself
substantial harm by pouring bleach on his skin.” Appellant
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also contends that there “was no evidence in the record that
the appellant had ever been injured while leaving the house
in the middle of the night or by walking down the road.”
         The state, for its part, contends that “clear and convincing evidence supported the trial court’s conclusion that
appellant was a person with a mental disorder who, because
of that mental disorder, was a danger to himself.” In the
state’s view, appellant “endangered his safety by pouring
bleach directly on his skin to clean off what he believed to be
radiation that the government placed on him” and that he
“endangered his safety when, in a manic state, he attempted
to walk at night approximately 30 miles to Portland believing that he could stop last summer’s civil unrest if he could
be physically present.”3
           Although “fact matching in these kinds of cases is
often of little utility because every involuntary mental commitment case must be decided on its individual facts under
the applicable standards,” State v. S. E., 

,

 (2021) (internal quotation marks and brackets
omitted), “our decisions addressing putative ‘danger to self’
commitments based on ‘harm’s way’ concerns highlight the
proper application of the [applicable] legal principles,” State
v. T. Y., 

, 

 (2017) (some internal
quotation marks omitted). In prior cases we have concluded,
for example, that “evidence that the appellant, who suffered
from delusions, had ‘poor judgment,’ and had a tendency
to ‘travel aimlessly’ and to ‘walk into people’s homes’ was
insufficient to establish the requisite danger to self,” B. B.,

 (quoting State v. Olsen, 

, 

 (2006)); that “the facts that appellant
lacked self-control, had lost a significant amount of weight,

    3
       On appeal, in arguing that the trial court did not err in determining that
appellant was a danger to self within the meaning of ORS 426.005(1)(f)(A), the
state also points out that a “grand jury indicted appellant for unlawful use of a
weapon and resisting arrest” and that the trial court took judicial notice of that
indictment. It is true that appellant was so indicted and that the trial court took
judicial notice of that indictment. But the trial court did not rely on the allegations in the indictment in determining that appellant was a danger to self within
the meaning of ORS 426.005(1)(f)(A). Further, “an indictment is not evidence of
guilt.” State v. Miller, 

, 

 (1981), rev den, 

 (1982). Consequently, the fact of appellant’s grand jury indictment is not
material to our analysis.
400                                              State v. M. L.

and had repeatedly hit her head against a Plexiglass divider
separating the front and back seats in a police car, was insufficient to sustain a commitment based on danger to self,”
B. B., 

 (citing State v. Powell, 

, 

 (2001)); and that “evidence was insufficient
to support a commitment based on danger to self where the
appellant was confused and disorganized, ‘had a pattern
of unpredictably and impulsively running away when the
voices she hears tell her that she or her child is in some kind
of danger,’ had, on at least three occasions, run away ‘apparently guided by her command hallucinations,’ and suffered
cuts, abrasions, and swelling to her face,” T. Y., 

-26 (quoting B. B., 

).

         In light of those legal principles, in this case, viewed
in the light most favorable to the trial court’s ruling, we conclude that the evidence was legally insufficient to support
involuntary commitment on the basis that appellant was a
danger to self within the meaning of ORS 426.005(1)(f)(A).
The evidence in this case clearly establishes that appellant
suffers from bipolar disorder; that he refuses medication for
his condition; that, on one occasion, he put bleach and other
household chemicals on his body due to a concern about the
government exposing him to radiation; and that he left his
home in Saint Paul one night to attempt to walk to Portland.
It also establishes that—years prior—appellant was discovered in Beaverton walking around, shoeless, with blisters
on his feet.

         But, on this record, we cannot say that appellant’s
conduct establishes a “ ‘highly probable,’ threat to appellant’s safe survival, including a risk of substantial harm, in
the near future.’ ” B. B., 

 (internal citation
omitted). The record does not reflect that harm occurred to
appellant as a result of his conduct with regard to the bleach
and other household chemicals. The record is also devoid
of evidence regarding where on his body appellant put the
bleach and other household chemicals (other than that he did
not drink or imbibe such chemicals), and devoid of evidence
regarding how long he was exposed to such chemicals. And,
importantly, there is an absence of evidence from which the
trial court could infer that appellant was likely to repeat
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his conduct with regard to the bleach and other household
chemicals, and that if he did repeat that conduct, it would or
could result in “serious and actual physical harm.” S. R. J.,

 (internal quotation marks omitted).
         Further, appellant’s conduct of deciding to walk to
Portland on a “mission” to “carry out” a “master plan” is,
understandably, a cause for concern for appellant’s family—
particularly in light of the prior incident when appellant
was “picked up” in Beaverton with blisters on his feet. But
as noted above, delusional behavior, even behavior that may
be inherently risky, is not necessarily sufficient to warrant
involuntary commitment. On this record, the risk of harm
to appellant from attempting to walk to Portland—even
assuming such conduct were to occur again—is not the sort
of “particularized” and “highly probable” threat sufficient
to establish that appellant was a danger to self within the
meaning of ORS 426.005(1)(f)(A). S. R. J., 

(internal quotation marks omitted).
         In sum, the evidence in this case does not reflect the
kind of “particularized, near-term threat that is required to
justify appellant’s involuntary commitment on the ground
that he is a danger to himself.” Olsen, 

.
Accordingly, we reverse.
        Reversed.