Some Small Progress on an Element of Truth in re Robert Card.

Reports on law enforcement’s dealings with Robert Card in the months before his murder spree have consistently stated that Card committed no crimes at that point. Even yesterday, the following passage appeared in a story in the Portland Press Herald:

“Members of the [Sagadahoc County] sheriff’s office last week defended their response to reports they had received prior to the shooting about Card’s mental health. They said their options for responding were limited, since Card hadn’t committed a crime at the time and they said they were unable to take him into protective custody.” (my emphasis added).

This has been the Sheriff’s Office’s position all along:  When SCSO Sgt. Aaron Skolfield attempted to contact Card in September of 2023, Card had not committed any crime. I have taken issue with this since the beginning (see here and here) because before Skolfield attempted to speak to Card, Skolfield received a copy of a statement written by Ellsworth Police Officer (and Army reservist) Kelvin Mote. Mote wrote that an Army reserve staff sergeant, last name Hodgson, had reported to Mote that Robert Card had recently punched Hodgson in the face and told Hodgson that he, “has guns and is going to shoot up the drill center at Saco and other places.” Mote’s written statement was accompanied by text messages from Hodgson to Mote, in which Hodgson told Mote, “I believe he’s going to snap and do a mass shooting.”

In other words, Skolfield received a statement from Ellsworth officer Mote that Robert Card committed assault against Hodgson and committed terrorizing by communicating to Hodgson a threat to commit a crime of violence dangerous to human life. The natural and probable consequence of the threat was that Hodson reasonably feared Card would do it. In what sense is it honest to say that Robert Card committed no crime before Skolfield attempted to find him?

Unless Skolfield investigated the matter and determined that Card really didn’t make the threat, he could not possibly know that Card did not commit terrorizing. And because Skolfield did no such investigation and made no such determination, it isn’t honest to say that Card committed no crime before Skolfield attempted to contact him.

In fact, Skolfield now apparently acknowledges that Card made the threat to Hodgson.  In a story in yesterday’s Portland Press Herald, “Why didn’t Sagadahoc deputies charge Lewiston gunman with terrorizing?”, reporter John Terhune explores the question that the headline asks. I happen to be quoted in the piece because Terhune contacted me after somehow seeing my blog posts on the topic.

According the story, Skolfield faced questioning last week from Toby Dilworth, a member of the commission investigating the Card matter.  Dilworth asked Skolfield whether he had considered pursuing Card’s arrest for terrorizing. Skolfield told Dilworth that he didn’t know where Card was located when he made the threat, so the threat might not have been made in Skolfield’s jurisdiction, Sagadahoc County. Skolfield also testified, “Someone would have to say, ‘I want to make a complaint’…No one wanted to press charges.”

Now we are finally getting somewhere.

It looks like the Sagadahoc County Sheriff’s Office has been moved off its original “Robert Card didn’t commit any crime” to something more like, “Alright, Card might have committed terrorizing by threatening a mass shooting, but we didn’t know if he did it in our jurisdiction, and nobody told us they wanted to press charges.” But, it’s very likely that the reason the Sagadahoc S.O. didn’t know where Card committed the terrorizing is because they simply didn’t ask. The “Independent Third-Party Review” of events, commissioned by the Sagadahoc County Sheriff’s Office, lays out the timeline in significant detail. It mentions no effort by Skolfield or anyone else in the Sheriff’s Office to call or otherwise contact the person to whom Card actually communicated the threat, Hodgson.

As for nobody asking to press charges, there is a reason why criminal cases are styled as “State of Maine v. ___.” They are not civil cases. As a very high percentage of alleged victims in domestic violence cases can tell you, the State doesn’t need you to “press charges” in order to drag you along with their prosecution. Terhune reports that he spoke to Sagadahoc D.A. Natasha Irving, who confirmed this for him. Terhune also writes: “By the letter of the law, Card’s threats are a textbook example of terrorizing, Irving said.” A textbook example of terrorizing, then… So much for any notion that Card’s threat was somehow too unspecific or vague to constitute terrorizing.

As many times as you have read in news stories that there was little the Sagadahoc County Sheriff’s Office could do about Robert Card in September of 2023 because Card had committed no crime, the last part is simply not true. Robert Card committed terrorizing. The nature of his terrorizing was to threaten mass murder by use of a firearm. That is and always has been the truth of the matter. So, why the attempt to deceive?

At least now we should be able to move on to the next, and real, question: Why was nothing done about Card’s crime of terrorizing? I suspect that the reason grows out of something many of us are familiar with. Everything we do tends to fall into patterns, routines, for us. It’s the alternative to constant chaos. Then one day something comes at us from an odd angle. It looks like it fits a familiar pattern, but then we suddenly realize it doesn’t. Sometimes we realize it in time to take evasive action, but sometimes we don’t until it’s too late and the damage is done.

Remember the James Pak case, from 2012, in Biddeford? Police responded to a complaint from a tenant about a dispute with Pak, his landlord. The tenant reported that he and Pak were arguing over the parking situation in the driveway during a snowstorm when Pak threatened to shoot him. The responding officer spoke to the tenant and then spoke to Pak. Pak was highly agitated. He admitted that he had threatened to shoot the tenant and said that the officer was going to read about him in the paper, that there was going to be a bloody mess.

The officer warned Pak that his threat was criminal, then warned Pak to stay away from the tenant before leaving Pak’s residence. The officer returned to the tenant’s apartment, told the tenant and his co-tenants (girlfriend and mother) what he’d told Pak, told the tenants to avoid Pak, then left the scene. Within minutes, Pak walked over to the apartment and shot the complainant and his girlfriend to death, wounding the complainant’s mother.

In that case, the officer knew that Pak had committed a crime by threatening the tenant. Pak admitted the threat. But the officer chose to ignore the crime in favor of treating the matter as a civil, landlord-tenant dispute and washing his hands of it. The officer placed the matter into his civil, landlord/tenant silo, not into his criminal/public safety silo.

I doubt that the officer in Pak ever had a situation take that direction before. He probably felt a little sorry for the old guy, and didn’t want to arrest him and haul him out of his home during a snowstorm, between Christmas and the new year. But Pak didn’t fit the pattern of landlord-tenant disputes and people shooting their mouths off that the officer had dealt with previously. Pak was a highly agitated killer.

In Card’s case, Skolfield knew that Card reportedly committed terrorizing. But he focused on the matter as a mental health issue instead of dealing with it as terrorizing involving a threat to commit mass murder. He put it into his mental health silo, not his criminal/public safety silo. But between the two, it belonged in the criminal/public safety silo.

I bet Skolfield never dealt with a case before that involved someone threatening to commit mass murder who, within weeks afterward, shot 18 people to death and wounded 13 others. This one didn’t fit the mental-health-silo pattern, where someone reports a person with a mental health issue to the police and the police deal with it strictly as a matter of the person’s mental health. But when someone threatens to commit mass murder, maybe the police should be more concerned about the potential risk to public safety than the threatener’s mental health.

There is no way to achieve 100% accuracy in predicting who is and who isn’t going to commit mass murder after threatening it. That makes it necessary to decide where to set the public safety bias – in the direction more likely to produce false negatives or in the direction more likely to produce false positives? And it raises the question of how far in either direction the bias needle should be set. In this calculation, the magnitude of the public threat ought to make a difference. The potential for false positives, and more of them, must be considered more tolerable when the potential threat is on the scale of mass murder.

As I have blogged previously, as a matter of policy, the bias needle has been set heavily to the false-positive side for domestic violence offenses. Maybe it’s time to make a similar political decision and require police to emphasize the potential threat to public safety over the mental health of the threatener in circumstances when the threat is mass murder.

As a final point, I’m glad to see John Terhune’s PPH story place another issue that I have previously blogged about into public awareness. If Maine’s terrorizing statute is unconstitutional under the U.S. Supreme Court’s Counterman v. Colorado case, we have a serious problem on our hands. Yet Terhune’s story represents the first time I have seen a peep about it in the news. In the story, we find out that Sagadahoc County D.A. Natasha Irving is one of Maine’s D.A.’s who thinks that Counterman does make Maine’s terrorizing statute unconstitutional. As a result, she will not enforce the statute until the Maine Legislature fixes it.

Wow, people! How many more months should we allow to pass with police and D.A.’s refusing to enforce Maine’s law against threatening to kill people, including threatening to commit mass murder, unless the threat is to commit the homicide(s) imminently as required for criminal threatening?  Should we kind of hang back, nonchalantly, and wait until the problem manifests in another event that we read about in the news; another real bloody mess?