The Rockland complex where Harvey Lembo shot and wounded an intruder late Monday night doesn’t allow guns.

A Rockland man who says he shot an intruder in his apartment trying to steal painkillers may have to give up the gun he used because his complex prohibits firearms.

Harvey Lembo, a 67-year-old retired lobsterman who uses a wheelchair, purchased his gun just hours before he shot Christopher Wildhaber, 45, of Rockland in the shoulder just before midnight Monday.

Wildhaber appeared in Knox County Superior Court on Wednesday and entered no plea to a felony charge of burglary as well as three counts of refusing to submit to arrest, and charges of attempting to steal drugs and attempted theft. He is on probation from a domestic violence conviction.

A hearing on a motion to revoke his probation – potentially sending him to prison for more than two years – will be heard this week, Knox County Assistant District Attorney Christopher Fernald said. Wildhaber will be held without bail pending that hearing. Bail was set at $25,000 on the burglary charge.

Lembo said he got the gun Monday because he had been robbed before and thought the burglar might return. Lembo said his wheelchair, his poor hearing and the fact that he has prescription painkillers might have made him a target for thieves.

‘I HAVE TO GIVE MY GUN UP’

But on Wednesday he said the management company that operates Park Place Apartments, where he lives, told him the complex’s rules prohibit firearms.

“I have to give my gun up,” Lembo said. “I don’t see how they can do it, but I suppose they can.”

Russ Gagne, director of finance for Stanford Management, which manages Park Place Apartments and about 1,500 other subsidized apartments in Maine, said the complex doesn’t allow firearms.

“We have house rules that prohibit firearms on the property,” he said. “It’s in the lease. … It’s really for the safety of all the tenants.” Gagne said the company handles lease infractions on a case-by-case basis and that it has just started its investigation into the incident in Lembo’s apartment.

“At the very least he’ll be asked not to have firearms in his possession,” Gagne said. The company is looking into reports of previous burglaries at the building and how to increase security at the privately owned 20-unit complex that receives federal subsidies.

Lembo, asked how he planned to protect himself against potential burglars without his gun, said, “I’m going to have to bolt myself in.”

The landlord’s rules prompted criticism from the nation’s largest gun rights group.

“I think it’s an outrageous turn of events,” said John Hohenwarter, a National Rifle Association spokesman responsible for governmental affairs in Maine.

“Now we have Mr. Lembo being victimized twice within 48 hours: once by a burglar and second by a landlord.”

“Clearly, he acted within the law to defend himself and now subsequently he’s being told by his landlord he’s going to be denied an inherent right of self-defense.”

Hohenwarter said the issue may ultimately be resolved in court, comparing Lembo’s situation to the 1995 lawsuit pursued by the NRA on behalf of a Portland couple who challenged the Portland Housing Authority’s rule against residents having guns in the city’s public housing. The Maine Supreme Court voted 6-0 that the authority was not allowed to establish its own gun control regulations.

However, the housing authority is a government agency and Lembo’s landlord is private.

Lembo said police confiscated his gun as part of the investigation and planned to re-interview him.

STATE LAW ON SELF DEFENSE

State law gives people the right to shoot someone if they feel threatened, particularly in their own home, under certain circumstances.

The law says a person is justified in using deadly force when an intruder has entered or is attempting to enter a home without permission. However, the resident also must believe deadly force is necessary to stop the intruder from harming the resident or someone else there.

The law says a person is not justified in using deadly force if they can safely retreat, though the person is not required to retreat in their own home.

Jodi Nofsinger, an attorney with Berman and Simmons, said there’s a chance Lembo could face criminal prosecution.

“I would assume they’re going to investigate the legality of his actions. This is a unique situation in Maine,” said Nofsinger, who successfully helped defend Portland resident Sabato Raia after he was accused of fatally shooting three men who came to his house following a heated argument in 1997.

She said that in Raia’s case, the state’s key challenge was proving that Raia was not in fear of serious injury.

“The self-defense statute requires that essentially the state prove that he wasn’t acting with a reasonable belief his life was in imminent danger,” she said.

A separate section of law allows a resident to use deadly force if it is necessary to stop a burglary in progress, but only if the person refuses to leave when the resident demands it.

In a case this year, a jury found Merrill “Mike” Kimball guilty of murder in the shooting death of Leon Kelley during a confrontation at a bee farm in Cumberland. The jury concluded Kimball was not justified in using deadly force because he was not in fear for his life.

Lembo says he ordered Wildhaber to sit down while he called police and shot him only after he bolted for the kitchen, off which the apartment’s entrance is located. More significant legally is what Lembo believed the intruder’s intentions were and whether he believed Wildhaber posed a threat.

On Wednesday, Lembo told the Courier Publications that he was “petrified” and feared for his life.

“I was scared he was going to come at me,” he said. “It was horrifying. I don’t want to shoot anybody.”

STATE HAS BURDEN OF PROOF

Knox County District Attorney Geoffrey Rushlau said he did not know the specifics of the case, but said his office typically reviews all behavior in a violent encounter.

“We both look at the facts and also apply any law that is pertinent to those facts,” Rushlau said. “In making that decision, we are aware that the burden of proof for cases involving self-defense or defense of home … is ours. We have to prove beyond a reasonable doubt they didn’t act legitimately.”

Lembo said he was woken up Monday night and saw a shadow. He grabbed the pistol, which he had stashed under his pillow, climbed into his motorized wheelchair and confronted a man standing over his prescription painkillers.

Lembo ordered the man at gunpoint to sit on a coffee table while he called police. While he spoke to the dispatcher, the man ran toward the kitchen, he said. Lembo turned and fired, hitting the intruder in the shoulder.

Though Lembo spent most of his working life as a lobsterman on Vinalhaven, he is familiar with guns. When he was 18, he worked as a police officer on Vinalhaven and was taught to shoot by the police chief, he said.

Police arrived soon after the shooting Monday night and followed a trail of blood to the parking lot where they found Wildhaber hiding in bushes, police said. He was treated at Pen Bay Medical Center, then Maine Medical Center in Portland where the bullet was removed.

Wildhaber was initially charged with a probation violation. In February, he was sentenced to three years in prison on a felony domestic violence charge with all but nine months suspended, along with two years of probation, according to state records. Wildhaber had been arrested on the charge in September and may have been out of prison because he had served time after the arrest but prior to his sentencing.

Rockland police have responded to Lembo’s apartment building twice in the past year for calls for service: Once for Monday’s shooting and once for a previous burglary at Lembo’s apartment, said Sgt. Donald Finnegan. He is unaware of other tenants who might have been burgled, he said.

Finnegan said police routinely take a gun used in a shooting as part of the evidence in the case and to make sure it was not stolen or used in a previous crime.

Lembo would not say where he bought the gun. Finnegan said he didn’t know if detectives questioned Lembo where he got it or whether he told them.

Finnegan did say that officers would increase patrols in that area of town.

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