MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	21

Docket: Han-17-273

Submitted

On	Briefs: November	29,	2017

Decided: February	6,	2018

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

BETTY	L.	FRENCH

HJELM,	J.

[¶1]		Betty	L.	French appeals	from	a	judgment	convicting	her of hindering	

apprehension (Class	 D),	 17-A	 M.R.S.	 §	 753(1-B)(A)(3)	 (2017),	 obstructing	

government administration (Class	D),	17-A	M.R.S.	§	751(1)	(2017),	and	refusing	

to	submit	to	arrest (Class	D),	17-A	M.R.S.	§	751-B(1)(B)	(2017), entered	by	the	

court (Hancock	County,	R.	Murray,	J.)	after a	jury	trial.		French	argues	that	the	

court’s instructions	to	the	jury	on	the	justification	of	defense	of	premises,	see	

17-A	M.R.S.	§	104	(2017),	were	incorrect.		Because	a	citizen	is	not	justified	in	

using	 nondeadly	 force	 against	 a	 law	 enforcement	 officer	 for	 the	 purpose	 of	

defending	one’s	premises,	see	17-A M.R.S.	§ 108(1-A)	(2017),	French was	not	

entitled	to	that	instruction, and we	affirm the	judgment.
2

I.		BACKGROUND

[¶2]	 	 The	 evidence,	 viewed	 in	 the	 light	 most	 favorable	 to	 the	 State,	

entitled	the	jury	to	find the	following	facts	beyond	a	reasonable	doubt.		See	State	

v.	Lajoie,	2017	ME	8,	¶	2,	154	A.3d	132.

[¶3]		On	March	18,	2016,	Maine	State	Trooper	Jacob	Ferland	arrived	at	

French’s	 residence	 in	 Verona to	 execute	 a search	 warrant	 as	 part	 of	 an	

investigation	into thefts	in	which	French’s	stepson was	a	suspect.		During	the

search of	the	residence,	Ferland	found	personal	property	bearing the	stepson’s

name.		 Ferland	informed	French	and	her	husband	that	if	the	stepson did	not	

turn	himself	in,	Ferland	would	apply	for an	arrest	warrant. Later,	Ferland did	

that and	obtained	an	arrest	warrant for the	stepson.	

[¶4]		Just	more	than	a	week	later,	on	March	27,	2016,	Ferland,	in	uniform	

and	driving	a	marked	police	vehicle,	returned	to	French’s	residence.		On	arrival,	

Ferland knocked	 on	 the	 door, thereby	 pushing	 the	 door	 open	 completely,	

announced	 his	 presence, and	 stepped	 into	 the	 kitchen.	 	 Ferland	 informed	

French	and	her	husband that	he	now	had	 the arrest	warrant for	the stepson.

After French’s	husband went	upstairs	to	get	the	stepson,	French told Ferland	to	

leave the	 house.	 	 Ferland	 stepped	 outside the	 residence to	 call	 an	 assistant	

district attorney,	but when	he	tried	to	reenter the	house the	door	was	locked.		
3

Ferland	announced that	he	would	break	down	the	door if	he	were	not	permitted	

to	enter.		

[¶5]		Shortly	thereafter,	the	stepson exited	the	house	and was	taken	into	

custody	by	another	officer.		Ferland then informed	French that	he was	arresting	

her for	hindering	apprehension,	but	as	he	walked	towards	her,	French backed	

into	the	house	and	put	her	hands	in	her	sweatshirt	pocket.		Ferland followed	

her	into	 the	house, pulled	French’s hands out, and	attempted	 to	place	her	in	

handcuffs.		French pulled away	from	Ferland,	retreating	into the	kitchen where

the	 two	 became	 engaged in	 a	 physical	 struggle that	 lasted	 roughly	 eight

minutes, with occasional	 intervention	 by French’s	 husband	 and	 daughter in	

support	of	French, until	Ferland	ultimately	was	able to	handcuff French.

1		

[¶6]		French,	her	husband,	and	her	daughter were	charged	with	various	

offenses	 as	 a	 result	 of	 the	 incident. For	 her	 part,	 French was	 charged	 with	

hindering	apprehension,	obstructing	government	administration,	and	refusing	

to	submit	to arrest.		She	pleaded not	guilty	to	each	charge,	and	in	March	2017,	

the	court	held	a	one-day	jury	trial	encompassing	all	charges	against	each	of	the	

three	defendants.	

 1 Using	a	cell	phone,	another	family	member	recorded	much	of	the struggle	between	Ferland	and	

French.		At	trial,	the	recording was	admitted	in	evidence	and played	for	the	jury.	
4

[¶7]		Without	objection	from	any	party,	in	its	instructions	that	pertained	

to	the	charges	against	French,	the	court	instructed	the	jury	on	the	justifications	

of	 self-defense	and	defense	 of	a	 third	person, and	defense	 of	premises.2 The	

jury3 found	French guilty	of	all	three	charges.4 The	court	later	sentenced	her to

concurrent	 jail	 terms of	 three	 days	 for	 refusing	 to	 submit	 to	 arrest	 and

forty-eight	 hours	on each	 charge	 of	hindering	 apprehension	 and	 obstructing	

government	 administration.	 	 French timely	 appealed.	 	 See	 15	 M.R.S.	 §	 2115	

(2017);	M.R.	App. P.	2(a), (b)(2)(A)	(Tower	2016).5

II.		DISCUSSION

[¶8]	 	 French	 argues that	 the	 court’s	 instructions	 to	 the	 jury	 on	 the	

justification	of	defense	of	premises	were	deficient	because	the	court	failed	to	

inform	 the	jurors of	 the	legal	standards prescribing when	a	law	enforcement	

officer	 may	 lawfully enter	 a	 residence	 without	 the	 occupant’s	 permission.		

French	 goes	 on	 to	 argue	 that	 omission	 of	 this	 legal	 principle	 from	 the	

 2		Neither	party	requested	the	court	to differentiate	among	the	charges	when	it	instructed	the	jury	

on	the	justifications.		

3 Several	jurors	were	excused	during	the	course	of	the	trial,	and	ultimately,	with	the	consent	of	

the	parties, see	M.R.U.	Crim.	P.	23(b),	the	jury	comprised eleven	members.	

4 The	jury	also	found	French’s	husband	and	daughter	guilty	of	all	charges filed	against them.		

5		The	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply	because	this	appeal	was	 filed	

prior	to	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).
5

instructions	 prevented	 the	jury	 from	being	able	 to	 find	 that	 Ferland	illegally	

entered	the	residence	and	that, consequently, French was	justified	in	her	use	of	

nondeadly	force	against	him	for	the	purpose	of	defending	her premises.6 We	

need	 not	 engage	 in a	 substantive	 examination	 of	 French’s	 challenge	 to	 the	

court’s	instructions	regarding	the	defense	of	premises because	French	was	not	

entitled	 to	 that	 instruction	 in	 the	 first	 place.	 See	 Lajoie,	 2017	 ME	 8,	 ¶	 14,	

154 A.3d	 132 (stating	 that	 jury	 instructions	 are	 reviewed	 for,	 among	 other	

things,	 whether	 instructions	 correctly	 describe	 the	 governing	 law	 in	 all	

necessary	respects).

[¶9]		As	a	general	matter,	a	person who	is	licensed	or	privileged	to	be	on	

a	 particular	 premises is	 justified	 in	 using a	 reasonable	 degree	 of nondeadly	

force against	another	in	order to	defend	the premises to	the	extent	the	person	

reasonably	 believes	 that	 such	 force	 is	 necessary	 to	 prevent	 or	 terminate	 a	

criminal	trespass.		See	17-A	M.R.S.	§	104(1); see, e.g.,	State	v.	Cannell,	2007	ME	

30,	¶¶	5,	10,	916	A.2d	231; State	v.	Neild,	2006	ME	91,	¶¶	10-14,	903	A.2d	339;	

State	v.	Dyer,	2001 ME	62,	¶¶	5-12,	769	A.2d	873.

 6 French	makes	a related argument	that, based	on	the	record	evidence,	the	court	erred	by	denying	

her	motion	for	judgment	of	acquittal,	see	M.R.U. Crim.	P.	29,	because she	was	justified	in	using force	

against	Ferland	to	defend	the	premises.		This	argument	fails	for	the	reasons	explained	in	the	text.
6

[¶10]	 	 When	 nondeadly	 force	 is	 directed against	 someone	 whom	 the	

actor	 knows	 or	 should	 know	 is	 a	 law	 enforcement	 officer,	 however,	 the	

availability—and	 the	 extent—of	 any	 justification	 for	 the	 use	 of	 force	 is	

significantly	more	circumscribed,	as	established	in	17-A	M.R.S.	§ 108(1-A).		See	

State	v.	Dumond,	2000	ME	95,	¶	12,	751	A.2d	1014 (discussing	limitations	on	a	

citizen’s	right	to	use	nondeadly	force	against	a	law	enforcement	officer);	State	

v.	Austin,	 381	 A.2d	 652,	 654	 (Me.	 1978) (“From	 examination	 of	 section	 108,	

together	with	sections	107	and	752,	it	becomes	clear	that	the	[L]egislature	did	

not	intend	section	108	 to	give	a	person	 the	right	 to	resist	a	law	enforcement	

officer’s	use	of	reasonable,	nondeadly	force	to	effect	an	arrest,	whether	legal	or	

illegal.”);	see	also	Butler	v.	Killoran,	1998 ME	147,	¶	11,	714	A.2d	129 (stating	

that	“a	statute	dealing	with	a	subject	specifically	prevails	over	another	statute	

dealing	 with	 the	 same	 subject	 generally”). Section	 108(1-A) applies here

because	the	undisputed	evidence	establishes	that	when French	used	nondeadly	

force	against Ferland	as	he	was	trying	to	arrest	her,	French	knew	that	Ferland

was	a	law	enforcement	officer:	the	two	had	had	contact	about	a	week	earlier	

when	Ferland executed	a	search	warrant	at	French’s	residence while	she	was	

present;	 on	 the	 date	 of	 the	 incident	 Ferland was	 in	 uniform	 and	 driving	 a	
7

marked	 cruiser; and	 French	 testified	 that	 she	was	 not surprised	 that	 he	 had	

returned.

[¶11]		Section	108(1-A)	states	in	full,

A	 person	 is not	 justified in	 using	 nondeadly	 force	 against	

another	person	who	that	person	knows	or	reasonably	should	know	

is	 a	 law	 enforcement	 officer	 attempting	 to	 effect	 an	 arrest	 or	

detention,	regardless	of	whether	the	arrest	or	detention	is	legal.		A	

person	is	justified in	using	the	degree	of	nondeadly	force	the	person	

reasonably believes	is	necessary	to	defend	the	person	or	a	[third]	

person	against	a	law	enforcement	officer who,	in	effecting	an	arrest	

or	detention,	uses	nondeadly	force	not	justified	under	section	107,	

subsection	1.

(Emphasis	added.)

[¶12]		In	other	words,	pursuant	to	the	plain	language	of	this	statute,	the	

only circumstance where a	 citizen may	 be	 entitled	 to	 use	 nondeadly	 force	

against	a	law	enforcement	officer who	is	arresting	or	detaining	someone,	or	is	

attempting	to	do	so, is	for	the	purpose	of	defending	herself	or	a	third	party—

and	 even	 in	 that	 situation, the	 citizen is	 justified	 in	 using nondeadly	 force

against	an officer	only when	the	officer uses	excessive	force	or knows	that the

arrest	 or	 detention	 is	 illegal,	see	 17-A	 M.R.S.	 §	 107(1)	 (2017). See	Dumond,	

2000 ME	 95,	 ¶	 12,	 751	 A.2d 1014;	 Austin,	 381	 A.2d	 at 654-55. The	 plain	

language	of	section	108(1-A) does	not	authorize a	citizen’s use	of	nondeadly	

force	against	a	law	enforcement	officer who	is	arresting	or	detaining	someone,
8

or	attempting	to	do	so,	for	any	other	purpose—including	defense	of	premises.		

See State	v.	Christen,	2009	ME	78,	¶	12,	976	A.2d	980 (stating	that	we	review	

“questions	 of	 statutory	 interpretation de	 novo”	 by	 first	 looking	 to the	 plain	

language	 of	 the	 statute). This	 reflects	 a	legislative	judgment	 that	 the	 use	 of	

nondeadly	 force	 against	 a	 law	 enforcement	 officer, who	 is	 arresting	 or	

detaining	someone	or	attempting	to	do	so, may	be	justified only	in	very	limited	

circumstances—where	personal	safety	is	at	risk	and	not	where	other	interests,	

such	 as	 private	 property,	 are	 implicated.	 As	 we	 have	 stated,	 through	 its	

enactment	of	section	108(1-A)	“[t]he	[L]egislature	has	thus cast	the	advantage	

on	 the	 side	 of	law	 enforcement	 officers,	leaving	 the	 person	 arrested	in	most	

cases	 to	pursue	his	 rights,	not	 through	 violent	self-help,	but	 through	prompt	

hearing	before	a	magistrate	with	prompt	consideration	 for	release	on	bail	or	

personal	recognizance.”	 Austin,	381	A.2d at 655 (footnote	omitted).	

[¶13]	 	 This	 means	 that	 pursuant	 to	 section	 108(1-A),	 French	 was	 not	

entitled	 to	 use	 nondeadly	 force	 against	 Ferland—who	 was	 trying	 to	 arrest	

her—for	the	purpose	of defending her premises,	regardless	of	the	lawfulness	of	

Ferland’s entry	into	the	residence	or	his	resulting	presence	inside.	

[¶14]		Here,	in	addition	 to	its	instructions	 on	defense	 of	premises,	the	

court	instructed	the	jury	on	French’s	use	of	force	against	Ferland for	purposes	
9

of	self-defense	or	defense	of	a	third	person.		Pursuant	to	the	second	sentence	of	

section	 108(1-A),	 quoted	 above,	 self-defense or	 defense	 of	 a	 third	 person—

where	generated by	the	evidence—is	available	as	a	justification	for	the	use	of	

force	against	a	law	enforcement	officer.		The justification	of	defending	a	person,	

however,	is	distinct	and	separate	from	the	justification	of	defending	premises.	

Compare	 17-A	 M.R.S.	 §	 108 (2017),	 with 17-A	 M.R.S.	 §	 104.	 	 Because the	

Criminal	 Code	 does	 not	 create	 a	 justification	 that	 allowed French	 to use

nondeadly	force against	Ferland	in	order	to	defend	her premises,	she	was	not

entitled	to	any instruction on	that	issue. Therefore,	any error	in	the	substance	

of	the	defense of	premises instruction cannot entitle	French	to	relief	on	appeal	

because the	court	instructed	the	jury	on	a	defense	to	which	she was	not	entitled.		

The	entry	is:

Judgment	affirmed.

Robert Van Horn, Esq., Van Horn Law Office, Ellsworth, for appellant Betty L. 

French

Toff Toffolon, Dep. Dist. Atty., Prosecutorial District VII, Ellsworth, for appellee 

State of Maine

Hancock County Unified Criminal Docket docket number CR-2016-352

FOR CLERK REFERENCE ONLY