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Kierstead v. City of South Portland

Superior Court of Maine, Cumberland

March 24, 2014



Hon. Roland A. Cole, Justice, Superior Court.

This matter is before the court on Plaintiff John Kierstead's Rule 80B appeal of the decision of the Chief of Police for the City of South Portland, Edward Googins, to deny Kierstead's renewal application for a concealed firearms permit. This court held a hearing on this matter on January 28, 2014.

Factual Background:

On November 29, 2010, Kierstead was the perpetrator of an alleged assault at the Asia Restaurant in South Portland. (R. 20-22.) The victim of the alleged assault was at a table in the Asia Restaurant eating his food while also talking on his cell phone. (R. 21-22.) Kierstead was sitting a couple of tables over and got up to talk to the victim. (R. 21.) The victim stated that Kierstead yelled at him to shut up and Kierstead picked up the victim's water glass and dumped it over the victim's head. (R. 21-22.) According to the victim, after he alerted Kierstead that he was planning on calling the police, Kierstead also knocked the victim's cell phone out of the victim's hand. (R. 21-22.) Kierstead left the restaurant with his wife, but his wife subsequently returned to the restaurant to apologize and tell the victim that Kierstead was having a diabetic episode. (R. 21-22.)

When interviewed by the police officer, Kierstead contended that the victim was swearing on his phone and swore at Kierstead when he told the victim to be quiet. (R. 21.) Kierstead admitted to dumping the water on the victim. (R. 21.) Kierstead attributed his actions to a diabetic episode, and the police officer agreed: " I feel that John was having a diabetic episode and that was the reason for the incident. He was spoken to and the case was cleared exceptionally." (R. 21.)

On June 13, 2012, Kierstead applied to renew his concealed weapons permit. (R. 6-18.) Sgt. Steven Webster wrote to Kierstead on November 1, 2012 stating in part:

Permits for concealed weapons are governed by 25 M.R.S.A. § 2003. As a result of our investigation, which will be documented below, your application for Permit to Carry Concealed Firearms has been denied.
In November 2010 you were involved in an alleged assault at a local restaurant. While no charges were filed, your actions lead me to deny your application at this time .

(R. 3 (emphasis in the original).) The letter informed Kierstead that within 30 days of the letter, and after he spoke with Sgt. Webster, he could ask for an administrative review with the Chief of Police. (R. 3.)

On April 3, 2013, Kierstead emailed Chief Googins requesting a hearing regarding the concealed weapons permit. (R. 2.) On Tuesday, April 9th, Chief Googins and Kierstead met, and on Monday, April 15th Chief Googins emailed Kierstead stating " After meeting with you on Tuesday and going over the case file again, I am not going to be re-issuing you a concealed weapons permit. I truly hope you understand this decision which is based on the incident at the Asia Restaurant on November 29, 2010." (R. 1-2.)

Included in the record are also several protection from harassment complaints filed by Kierstead's neighbors in May of 2009 against Kierstead and his wife, Lorna. (R. 23-58.) Kierstead has objected to the consideration of these reports. The supplemented record includes docket sheets showing that the protection from harassment complaints against Kierstead were dismissed in June of 2009. (R. 67-72.) There are also several documents dating back to 2003 and 2004: a complaint from Kierstead's neighbor and CAD operations reports from 2003, and a commendation certificate from 2004. (R. 59, 61-66, 73.)[1]

Standard of Review:

When reviewing an 80B appeal of a concealed firearms permit denial, the court must determine whether the police chief's decision " constitutes an abuse of discretion or is otherwise unlawful. '[We] . . . must affirm the decision of the administrative agency, unless that decision was unlawful, arbitrary, capricious or unreasonable....'" Hider v. Chief of Police, City of Portland , 628 A.2d 158, 161 (Me. 1993) (quoting Driscoll v. Gheewala , 441 A.2d 1023, 1026 (Me. 1982) (alterations in the original)). See also Sager v. Town of Bowdoinham , 2004 ME 40, ¶ 11, 845 A.2d 567 (finding that when a party challenges a decision left to the discretion of a state or local decisionmaker that party " has the burden of demonstrating that the decisionmaker abused its discretion in reaching the decision under appeal.")

To demonstrate an abuse of discretion an appellant must show " that the decisionmaker exceeded the bounds of the reasonable choices available to it, considering the facts and circumstances of the particular case and the governing law." Sager , 2004 ME 40, ¶ 11, 845 A.2d 567. Merely showing that based on the facts a decisionmaker could have made different decisions, which the appellant or the court might have found preferable, is inadequate. Id. The Law Court has held that when ...

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