ROCKLAND, Maine — Harvey Lembo suffered emotional damage from being threatened with eviction for owning a gun after the 68-year-old shot someone he said had broken into his apartment to steal prescription medications, according to Lembo’s attorney.
“Mr. Lembo is a very vulnerable person. Rather than improve security, they threatened to throw him out,” Lembo’s attorney Howard Nielson Jr. of Washington, D.C., said Tuesday of the apartment complex landlord and property management company.
After receiving a letter from Stanford Management saying he could not have a gun in the apartment or he would be evicted, Lembo sued both the management company and complex owner, Park Place Associates, claiming they violated his right to bear arms under both the U.S. and Maine constitutions.
On Tuesday in Knox County Unified Court, Nielson argued against a motion to dismiss the lawsuit stating in part that the house rule his client is accused of violating was not put in place until 2011, two years after Lembo signed his lease.
Lembo is entitled to damages and attorney’s fees, said Nielson, whose fees are being financed by gun rights groups on Lembo’s behalf. No amount of monetary damages have been cited in the lawsuit.
Stanford Management’s attorney James Bowie of Portland said during the one-hour hearing that the lawsuit should be dismissed because it fails to show that Lembo’s civil rights were violated. Laws under the Maine Civil Rights Act require that there be a threat of violence or physical force involved for that statute to apply.
All the management company did was send a notice, Bowie said. Before any eviction would have occurred, a court would have had to decide whether the management company’s effort was proper.
No action was taken after the notice was sent, he stressed.
Attorney William Harwood of Portland, who represents the Maine Gun Safety Coalition, also argued against the lawsuit, while admitting that Lembo, who uses a wheelchair to get around, is a sympathetic figure. But the more guns there are, the more violence there will be, said the attorney for the coalition, which was given the court’s approval to file a brief in the case.
There needs to be a balancing act concerning one man’s right to have a gun versus another tenant’s right to safety, Harwood said.
There are restrictions to Second Amendment rights just as there are restrictions on First Amendment rights, he said. For instance, a person cannot claim a First Amendment right to place a political sign on someone else’s lawn, Harwood said.
Justice William Stokes, who heard arguments Tuesday, advised the attorneys that before he was appointed to the judicial post in 2014, he served as mayor of Augusta and was a member of Mayors Against Illegal Guns for three years. He said he believes he can rule impartially on the case but gave attorneys a week to file a request if they want him to recuse himself.
The justice also asked attorneys whether the passage of legislation earlier this month prohibiting landlords from banning tenants owning guns makes this case moot. The law goes into effect 90 days after the Legislature adjourns.
Nielson argued that the law does not change the emotional damage suffered by Lembo from the stress of being threatened with eviction.
Lembo told the BDN on Sept. 1 that he had purchased a 7 mm Russian-made revolver the day before he shot an intruder because he had been the victim of four prior burglaries in the six years he had lived in the apartment. In those instances, his medications and money had been taken.
Lembo said he was awoken on the night of Aug. 31, 2015, by a sound in his apartment and saw a shadow pass by his kitchen into the living room. Lembo said he took the gun, which he had under his pillow, and confronted the intruder, who was rifling through his medications.
Lembo said he ordered the man to sit down, which he did initially, but then the man got up and tried to flee. Lembo said he fired a shot, which struck the man in the shoulder.
Rockland police later found 45-year-old Christopher Wildhaber in nearby woods and had him treated for his wound before taking him to jail.
Wildhaber has been charged with burglary, theft of medication, attempted theft and three counts of refusing to submit to arrest. He has been held at the Knox County Jail in Rockland since his arrest.
Rockland police Sgt. Donald Finnegan said Tuesday that Lembo’s gun was confiscated as evidence in Wildhaber’s case and will be kept until that case concludes.
Wildhaber has pleaded not guilty. His attorney William Pagnano said one defense argument that may be raised is that Wildhaber was too intoxicated to realize he was in the wrong residence.
District Attorney Geoffrey Rushlau could not immediately be reached for comment Tuesday but said as late as last month that he has not decided whether Lembo would face any charges for shooting Wildhaber.