State v. T. L. B.

No. 678 September 25, 2024 225

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of T. L. B.,

a Person Alleged to have Mental Illness.

STATE OF OREGON,

Respondent,

v.

T. L. B.,

Appellant.

Douglas County Circuit Court

19CC06783; A176794

George William Ambrosini, Judge.

Submitted November 16, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Andrew D. Robinson, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jordan R. Silk, Assistant Attorney

General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Lagesen, Chief

Judge, and Kamins, Judge.

KAMINS, J.

Affirmed.

226 State v. T. L. B.

Cite as 335 Or App 225 (2024) 227

KAMINS, J.

Appellant challenges a judgment committing him

to the jurisdiction of the Psychiatric Security Review Board

(PSRB) for up to 24 months after finding that he is an

“extremely dangerous person” under ORS 426.701. Appellant

raises three assignments of error. First, he argues that the

trial court should have dismissed the commitment petition,

because ORS 426.701 and ORS 426.702 operate as a crimi-

nal prosecution and he was not afforded adequate state and

federal constitutional protections. Second, appellant argues

that the trial court erred by declining to rule on his motions

to suppress and controvert. Third, appellant argues that the

trial court erred by finding that he is an extremely danger-

ous person. We affirm.

For purposes of this appeal, the underlying facts

are largely not in dispute. Appellant experiences paranoid

ideations due to his delusional disorder. According to expert

testimony adduced at petitioner’s civil commitment hearing,

the “hallmark symptom” of that mental disorder is “a very

firmly held fixed idea that remains even in overwhelming

evidence to the contrary.” As a result of his delusions, appel-

lant believed that a local restaurant, and anyone who may

have frequented it, including appellant’s landlord and the

landlord’s housemate, were part of a broad conspiracy involv-

ing a prostitution and drug ring. And because of those delu-

sions, he killed his landlord and the landlord’s housemate.

After an evaluation, appellant was found unfit

for trial due to his mental disorder because he lacked the

capacity to understand the nature of the charges against

him. He believed that Oregon State Hospital personnel

and members of the trial court, including his legal team,

the trial judge, and the prosecutor, were all preventing him

from exposing the supposed criminal activity at that restau-

rant. Appellant’s mental disorder was resistant to medica-

tion, and despite multiple attempts, medical providers were

unable to restore his competency to stand trial.

The state then initiated a petition for civil commit-

ment pursuant to ORS 426.701—an “extremely dangerous

person” proceeding—which authorizes a court to commit

228 State v. T. L. B.

an individual to the jurisdiction of the PSRB.1 During the

14-day civil commitment hearing, appellant filed motions to

suppress and controvert, arguing that the extremely dan-

gerous person proceeding functioned as a criminal prose-

cution. Reasoning that the exclusionary rule does not apply

in a civil proceeding, the trial court did not “move forward”

with the motions.

Ultimately, the trial court determined that appel-

lant was extremely dangerous, because his mental disorder

was resistant to treatment, and his mental disorder caused

him “to present a serious danger of safety of other persons

by reason of an extreme risk that he will inflict grave or

potentially lethal physical injury on other persons in the

foreseeable future.” Thus, appellant was committed to the

jurisdiction of the PSRB.

In appellant’s first assignment, he contends that the

trial court erred in denying his motion to dismiss the civil

commitment petition because ORS 426.701 to ORS 426.702,

the statutes governing the extremely dangerous person pro-

ceeding, are unconstitutional. Appellant argues that, unlike

a civil commitment proceeding governed by ORS 426.005

to ORS 426.315, the extremely dangerous person proceed-

ing functions as a criminal prosecution without the neces-

sary federal and state constitutional protections.2 Whether

1

ORS 426.701(1)(a) provides that a person is “extremely dangerous” if an

individual:

“(A) Is at least 18 years of age;

“(B) Is exhibiting symptoms or behaviors of a qualifying mental disorder

substantially similar to those that preceded the act described in subsection

(3)(a)(C) of this section; and

“(C) Because of a qualifying mental disorder:

“(i) Presents a serious danger to the safety of other persons by reason of

an extreme risk that the person will inflict grave or potentially lethal physi-

cal injury on other persons; and

“(ii) Unless committed, will continue to represent an extreme risk to the

safety of other persons in the foreseeable future.”

2

Appellant also argues that the periodic recommitment procedure violates

due process; however, that argument is unpreserved. As appellant does not ask

for plain error review, we do not consider that argument on appeal. See State

v. McIntire, 328 Or App 328, 335, 537 P3d 608 (2023), rev den, 372 Or 26 (2024)

(explaining that ordinarily we “will not proceed to the question of plain error

unless an appellant has explicitly asked us to do so”) (internal quotation marks

omitted).

Cite as 335 Or App 225 (2024) 229

a statute is constitutional presents a question of law, State v.

Howard, 325 Or App 696, 701, 529 P3d 247, rev den, 371 Or

333 (2023), and for the reasons discussed below, we conclude

that ORS 426.701 to ORS 426.702 does not function as a

criminal proceeding.

Because appellant’s argument is based on a com-

parison of the civil commitment proceedings governed by

ORS 426.006 to ORS 426.415—which appellant appears to

acknowledge are constitutional—to the extremely dangerous

person proceedings, we briefly discuss both. Civil commit-

ment proceedings, governed by ORS 426.005 to ORS 426.415,

are designed to provide care for mentally ill persons as well

as to provide for the safety of the community. OAR 309-033-

0220. Under that civil commitment scheme, two persons, the

local health officer or a “magistrate or judge of a court of

a federally recognized Indian tribe located” in Oregon, may

initiate a civil commitment. ORS 426.070 (1)(a) to (c). A com-

mitment under that proceeding is for “an indefinite period

of time up to 180 days,” if the individual has not made the

requisite progress to be released. ORS 426.301(3)(c).

In contrast, ORS 426.701 and ORS 426.702, which

govern the extremely dangerous person proceeding, were

adopted to ensure that individuals who pose a risk of vio-

lence because of a mental illness that is resistant to treat-

ment would not be released to the community until the

symptoms of that mental illness had been ameliorated. See

OAR 859-200-0005 (explaining purpose of extremely dan-

gerous civil commitment program); Audio Recording Senate

Committee on Judiciary, SB 421, Apr 18, 2013, at 147:53

(statement of Sen Floyd Prozanski), https://olis.oregonlegis-

lature.gov/liz/2013R1/Measures/Overview/SB421 (accessed

Sept 11, 2024) (explaining purpose of statutes). Under those

statutes, a district attorney petitions the court to initiate an

“extremely dangerous person proceeding.” ORS 426.701(2)(a).

That proceeding is predicated on the fact that the individual

suffers from a qualifying mental disorder that is resistant to

treatment, and because of that mental disorder, the individ-

ual committed one of six criminal acts enumerated in ORS

426.701(3)(a)(C)(i) to (vi), which include, as relevant here,

causing the death of another person. See ORS 426.701(1)(a)(c)

230 State v. T. L. B.

to ORS 426.701(2)(a) (describing the extremely dangerous

person proceedings).

An initial commitment of an extremely dangerous

person is for a maximum of 24 months; if the individual

has not made the requisite progress to be released, then the

commitment is continued for an additional 24 months. ORS

426.702(3)(a). The PSRB must hold a hearing within six

months of that initial commitment to make placement deci-

sions and determine whether the person is eligible for condi-

tional release or discharge. ORS 426.701(6)(a). And, “[a]t any

time during the commitment to a state hospital, the super-

intendent of the state hospital may request to determine the

status of the person’s commitment under the jurisdiction of

the board.” ORS 426.701(7)(a). If “the board determines * * *

that the person no longer suffers from a qualifying men-

tal disorder that is resistant to treatment or is no longer

extremely dangerous, the board shall discharge the person.”

ORS 426.701(6)(d).

With those two civil commitment schemes in mind,

we address whether, as appellant asserts, ORS 426.701 to

ORS 426.702 operate as an unconstitutional criminal pro-

ceeding. Generally, commitment proceedings based on men-

tal incapacity are permissible “without turning * * * into

criminal cases, so long as the detention is for a non-punitive

purpose and ends with that purpose.” Brown v. Multnomah

County Dist. Ct., 280 Or 95, 103, 570 P2d 52 (1977). “It is

the punitive use of detention, not the detention as such, that

defines the criminal offense.” Id. Appellant contends that,

unlike a civil commitment proceeding under ORS 426.005

to ORS 426.415, an extremely dangerous person proceed-

ing serves a punitive purpose because the commitment peri-

ods are longer, require that a dangerous person present an

“extreme risk,” and are initiated by the district attorney.

ORS 426.701(1) - (2)(a). We disagree and conclude, for the

reasons discussed below, that the extremely dangerous per-

son proceeding does not function as a criminal proceeding.

The question turns on whether the extremely dan-

gerous person procedure set forth in ORS 426.701 authorizes

detainment for a “punitive purpose,” or rather, “employs

compulsory confinement in looking after persons suffering

Cite as 335 Or App 225 (2024) 231

from mental incapacity.” Brown, 280 Or at 103. As discussed

above, the purpose of the extremely dangerous person pro-

ceeding is to provide mental health treatment and the con-

finement ends when that purpose—to ensure that an indi-

vidual’s mental health symptoms have been ameliorated

such that they do not pose a danger to themselves or the

general public—ends. Although the extremely dangerous

person proceeding employs longer commitment periods than

the civil commitment proceeding governed by ORS 426.005

to ORS 426.415, appellant has identified no source for the

conclusion that the length of commitment is for a punitive

purpose; rather, it appears that those presumptively longer

periods enable an individual with a mental illness that is

resistant to treatment to receive the necessary medical care.

Audio Recording, Senate Committee on Judiciary, SB 421,

Apr 18, 2013, at 1:47:53 (comments of Sen Floyd Prozanski),

https://olis.oregonlegislature.gov/liz/2013R1/Measures/

Overview/SB421, (accessed Sept 11, 2024) (noting that

extremely dangerous person proceeding is the “appropriate

way * * * [to] ensure that people will have the best oppor-

tunity to receive the treatment they might need, and also

not be a danger to themselves or others”). That non-puni-

tive rationale mirrors the ORS 426.005 to ORS 426.415 civil

commitment procedure. And ORS 426.701 requires that an

individual be discharged when the commitment criteria no

longer exist, confirming the nonpunitive purpose. See ORS

426.701(6)(c) (explaining that a commitment will end when

the individual “can be controlled in the community with

proper care, medication, supervision, and treatment”); see

also ORS 426.701(6)(d) (explaining that if “the board deter-

mines * * * that the person no longer suffers from a qualify-

ing mental disorder that is resistant to treatment or is no

longer extremely dangerous, the board shall discharge the

person”).

Although appellant acknowledges that the civil com-

mitment proceedings under ORS 426.005 to ORS 426.415 are

“predicated on the person’s dangerousness,” he argues that

the “extreme risk” requirement of ORS 426.701(1)(a)(C)(i) and

(ii) “suggests an incapacitating purpose” that is unmoored

from “the prospect of treatment.” However, the extreme risk

requirement requires that an individual pose an extreme

232 State v. T. L. B.

risk of serious danger to the physical safety of others because

of their treatment-resistant mental disorder. ORS 426.701

(1)(C)(i), (ii). And as explained above, an individual must be

released from commitment when the symptoms of the mental

disorder are alleviated, expressly tethering successful treat-

ment to release. Similarly, appellant argues that the fact that

a district attorney initiates the proceeding indicates a puni-

tive purpose. However, district attorneys represent the state

in civil commitment proceedings under ORS 426.100 to ORS

426.415 and initiate or prosecute many civil matters that do

not implicate criminal sanctions. See e.g., ORS 35.560(1) (not-

ing that a district attorney “shall [c]ommence and prosecute”

condemnation actions in their judicial district). Like ORS

426.005 to ORS 416.415’s civil commitment proceedings, we

conclude that the extremely dangerous person proceeding is

not punitive in nature, and, therefore, is not a criminal pro-

ceeding that requires the full panoply of constitutional pro-

tections afforded to a criminal defendant. For the same rea-

son, we conclude that ORS 426.701 does not violate the United

States Constitution. Addington v. Texas, 441 US 418, 428, 99

S Ct 1804, 60 L Ed 2d 323 (1979) (explaining that “a civil com-

mitment proceeding can in no sense be equated to a criminal

proceeding” because commitment “is not exercised in a puni-

tive sense”).

In his second assignment of error, appellant con-

tends that the trial court erred by declining to hear his

motions to suppress and controvert. The state responds that

that argument is unpreserved, because, beyond asserting

that the proceedings are criminal in nature, appellant made

no argument below that the exclusionary rules apply to civil

commitment proceedings. However, appellant’s argument

on appeal is exactly that—that the exclusionary rule is

applicable because the proceeding is analogous to a crim-

inal proceeding—an argument the trial court addressed

and rejected.3 Citing the same cases and raising the same

3

The trial court explained:

“[T]his is not a situation where the Court would be holding a Motion to

Suppress in this civil commitment hearing. This is not a criminal prosecu-

tion. * * * [T]he alleged mentally ill person is [not] facing incarceration and

that type of sanction. It’s commitment, among other things that’s sought, it

includes treatment at the State Hospital.”

Cite as 335 Or App 225 (2024) 233

arguments, appellant renews the argument on appeal. The

state’s preservation argument is not well-taken.

Whether the remedy of suppression of Article 1, sec-

tion 9’s, protection against unreasonable search and seizure

applies in a civil commitment proceeding is a question of

law.4 T. M. M. v. Lake Oswego School Dist., 198 Or App 572,

579, 108 P3d 1211 (2005).

The remedy of suppression of evidence obtained

from an unlawful search or seizure is available in criminal

proceedings. ORS 133.673. Like other safeguards afforded

to criminal defendants, the remedy of the suppression of evi-

dence seized in violation of Article I, section 9, may extend

to situations analogous to a criminal proceeding such that

a “petitioner’s liberty interest is sufficiently analogous to

the liberty interest at stake in traditional criminal prose-

cutions.” State ex rel Juv. Dept. v. Rogers, 314 Or 114, 120,

836 P2d 127 (1992) (extending exclusionary rule to juvenile

probation revocation proceedings). As explained above, the

hallmark distinction of a criminal proceeding justifying

application of those procedural safeguards is whether the

proceeding is punitive in nature. See, e.g., id. (citing State

v. Donovan, 305 Or 332, 335, 751 P2d 1109 (1988) (noting

that a “probation revocation proceeding invokes the crim-

inal sanctions pending against the defendant” to justify

extending the exclusionary rule to juvenile probation revo-

cation); see also State ex rel Dept. of Human Services v. W. L.

P., 345 Or 657, 665, 202 P3d 167 (2009) (recognizing that the

Oregon Supreme Court has extended the exclusionary rule

beyond criminal proceedings only to the “analogous setting”

of juvenile probation revocations). And, as we concluded

above, the extremely dangerous person proceeding is not

sufficiently analogous to a criminal prosecution to import

the safeguards afforded to criminal defendants, including

the right to suppress evidence.

4

Article I, section 9, of the Oregon Constitution provides:

“No law shall violate the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search, or seizure; and no

warrant shall issue but upon probable cause, supported by oath, or affirma-

tion, and particularly describing the place to be searched, and the person or

thing to be seized.”

234 State v. T. L. B.

Next, appellant argues that the federal exclusion-

ary rule, “a judicially created remedy designed to safeguard

Fourth Amendment rights,” should apply to the extremely

dangerous person proceeding. United States v. Calandra, 414

US 338, 348, 94 S Ct 613, 38 L Ed 2d 561 (1974). Appellant

contends that that rule applies, because “the benefits of

exclusion outweigh the costs,” an argument to which the

state does not respond.

When determining the applicability of the federal

exclusionary rule beyond criminal proceedings, courts

must “weigh the likely social benefits of excluding unlaw-

fully seized evidence”—specifically, the deterrent effect on

unlawful police conduct—”against the likely costs.” W. L. P.,

345 Or at 667 (internal quotation marks omitted). And the

Oregon Supreme Court has not extended the rule beyond

criminal and quasi-criminal proceedings. Id. at 668; see

also State Forester v. Umpqua River Nav., 258 Or 10, 14,

15-16, 478 P2d 631 (1970) (declining to extend federal exclu-

sionary rule to civil case brought by government because

it only applies in criminal and quasi-criminal cases where

the “object, like a criminal proceeding, is to penalize for the

commission of an offense against the law” (internal quota-

tion marks omitted)).

The federal exclusionary rule does not extend to

Oregon’s extremely dangerous person proceedings. As the

Oregon Supreme Court has already determined, extending

the federal exclusionary rule to law enforcement seizures in

non-criminal proceedings offers little additional deterrent.

W. L. P., 345 Or at 668 (“[T]he search here was conducted by

local law enforcement officials investigating potential crimi-

nal activity. If it was improperly seized, the evidence will be

excluded in any criminal proceedings” and thus extending

the exclusionary rule “would provide little, if any, additional

deterrence.”). That minimal deterrence is outweighed by

the benefit of preserving the safety and well-being of the

individual and the general public. See id. at 669 (concluding

that the federal exclusionary rule does not apply to juvenile

dependency proceedings after “[w]eighing the substantial

social cost of ignoring children’s safety against the minimal

additional deterrence”). In sum, we conclude that neither the

Cite as 335 Or App 225 (2024) 235

state nor federal exclusionary rules apply to the extremely

dangerous person proceeding.

In his final assignment of error, appellant con-

tends that the trial court erred in concluding that he is an

extremely dangerous person. Appellant concedes that the

evidence showed that he “presented a heightened risk of

future violence because of his mental disorder.” However, he

argues that ORS 426.701 does not define “extreme risk” and

that the state’s witness, a psychologist who specializes in

risk assessment, “acknowledged that risk instrumentation is

not a particularly robust science.” Thus, according to appel-

lant, the evidence does not show that his risk of violence was

“extreme”; he only had a “heightened risk of future violence”

and “nothing beyond that.” The state responds that the

evidence demonstrates that “future harm is highly likely,”

which is an “extreme risk.” We agree with the state that the

evidence in this case meets the statutory requirement.

In determining whether the record was sufficient

to find by clear and convincing evidence that appellant

qualified as an extremely dangerous person, 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. T. W. W., 289 Or App 724, 726, 410 P3d 1032 (2018) (inter-

nal quotation marks omitted). To the extent that appellant’s

argument presents a question of statutory interpretation,

we review such inquiries for legal error. State v. Bernhardt,

277 Or App 868, 872, 376 P3d 316, rev den, 277 Or 868 (2016).

ORS 426.701(1)(a)(C) provides, in part, that a per-

son is extremely dangerous if the person:

“(i) Presents a serious danger to the safety of other

persons by reason of an extreme risk that the person will

inflict grave or potentially lethal physical injury on other

persons; and

“(ii) Unless committed, will continue to represent an

extreme risk to the safety of other persons in the foreseeable

future.”

(Emphases added.)

236 State v. T. L. B.

“Extreme risk” is not defined in ORS chapter 426.

In those instances, “we generally assume that the legisla-

ture intended to use the term in a manner consistent with

its plain, natural, and ordinary meaning, and we often

consult dictionaries for guidance in determining what the

legislature would have understood a term to mean.” Kinzua

Resources v. DEQ, 366 Or 674, 681, 468 P3d 410 (2020)

(internal quotation marks omitted). We also “consider the

context of the statutory provision at issue, which includes

other provisions of the same statute or other related stat-

utes.” Bert Brundige, LLC v. Dept. of Rev., 368 Or 1, 4, 485

P3d 269 (2021) (internal quotation marks omitted).

“Extreme” generally means “existing in a very

high degree.” Webster’s Third New Int’l Dictionary 807

(unabridged ed 2002). Applying that definition—a definition

with which appellant does not quibble—requires a court to

determine that, because of an individual’s mental disorder,

they present a very high degree of risk of inflicting “grave or

potentially lethal physical injury” and continue to represent

a very high degree of risk “to the safety of other persons in

the foreseeable future.” ORS 426.701(1)(a)(C)(i), (ii).

The statutory context supports that construction.

ORS 426.005 to ORS 426.415, the related civil commitment

scheme discussed above, provides that a “person with mental

illness” includes a “person who, because of mental disorder,

is * * * [d]angerous to self or others.” ORS 426.005(1)(f)(A).

To justify committing someone based on the risk of violence,

a trial court must find “that actual future violence is highly

likely.” State v. C. L., 313 Or App 539, 542, 495 P3d 748

(2021); see, e.g., State v. C. J., 322 Or App 760, 764, 522 P3d

540 (2022) (explaining that appellant “locat[ing] and phys-

ically go[ing] to the journalist’s home, armed with a maul

and pepper spray * * * in the context of appellant’s increas-

ing symptoms of depression and PTSD, and her reluctance

to take prescribed” medications was “clear evidence that

appellant was highly like to engage in future violence”).

Thus, within that context, an “extreme risk” deter-

mination does not require the scientific certainty argued by

appellant; rather, it requires a finding that, because of appel-

lant’s mental health disorder, the risk of future physical

Cite as 335 Or App 225 (2024) 237

harm exists in a very high degree. As noted above, appellant

does not dispute that the “evidence showed that appellant

presented a heightened risk of future violence because of his

mental disorder.” Appellant shot and killed two individuals

because of his mental disorder, using the “quietest home-

made” silencer the state’s expert had observed. Additionally,

appellant lacks insight into his illness which remains resis-

tant to treatment. That evidence was sufficient to permit

the determination that the risk of future harm exists in a

very high degree.

In sum, the evidentiary record was legally sufficient

to establish that, because of appellant’s mental disorder, he

continues to present an “extreme risk” that he “will inflict

grave or potentially lethal physical injury to other persons”

and “will continue to represent an extreme risk to the safety

of other persons in the foreseeable future.” ORS 426.701

(1)(a)(C)(i), (ii).

Affirmed.