Brown County v. S. P.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP51 Cir. Ct. No. 2021ME424
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE MENTAL COMMITMENT OF S. P.:
BROWN COUNTY,
PETITIONER-RESPONDENT,
V.
S. P.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Brown County:
BEAU LIEGEOIS, Judge. Affirmed.
¶1 GILL, J.1 Steve2 appeals from an order for commitment entered
pursuant to WIS. STAT. ch. 51. Steve argues that Brown County (“the County”)
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP51
failed to establish that he was dangerous under WIS. STAT. § 51.20(1)(a)2.a. We
conclude the County proved by clear and convincing evidence that Steve was
dangerous, and we therefore affirm.
BACKGROUND
¶2 In July 2021, Steve returned to his home after completing treatment
at an alcohol rehabilitation facility. Steve failed to maintain his sobriety, and his
behavior over the weekend of July 9 caused his wife Carol to call the police two
separate times. Steve was ultimately placed on an emergency detention after
sending text messages to his family with statements like “goodbye,” disappearing
from his home for over a day, and then returning home intoxicated and wearing
his T-shirt inside-out.
¶3 At the final commitment hearing, psychiatrist Marshall Bales
testified regarding his examination of Steve and his review of records relevant to
Steve’s behavior. Bales testified that he believed that Steve had bipolar disorder
and described the symptoms of Steve’s illness:
He’s had psychotic symptoms with it and—but mainly very
severe mood swings, highs and lows in moods, irritability,
lability, depression, and then he’s also heard voices more
recently. But he’s had mood swings off and on for years,
yet the whole presentation has been worse lately and then
also complicated by some alcohol use problems.
Bales explained that although Steve exhibited most of the above symptoms during
the examination, because Steve was a police officer, “he knows all about exactly
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials. We also use pseudonyms when referring to other persons
relevant to this appeal to protect their privacy.
2
No. 2022AP51
why I was there for the Chapter 51 matter.” Bales noted that as a result, Steve is
“very intelligent, but he was trying to downplay, minimize, and even rationalize
all of the events leading to this hospitalization and this extensive police
involvement scenario and such.” Bales testified that Steve admitted to hearing
voices and that Carol had confirmed as much, although Steve was not hearing
voices at the time of Bales’ examination of him.
¶4 Doctor Bales testified that during the examination, Steve confirmed
the events outlined in the statement of detention in their entirety. When asked,
“Did [Steve] specifically admit that he had a plan to end his life?” Bales did not
provide a yes or no answer. Instead, Bales reiterated that Steve had confirmed the
events set forth in the statement of detention, and Bales summarized those facts as
follows:
[Steve] sent messages to his family stating good-bye,
stating—I’m paraphrasing this. He said he was going to
leave the house and be out of the world. He left Rockford
Rehab, stopped his medication, and wanted no police
presence at his house, and then there’s a few more things.
And he said [to another deputy] if you come out to my
house, you better bring a gun belt. He confirmed that. And
then [the statement of detention] said, yesterday he told his
wife he was going to disappear. He left at about 12:00 a.m.
and returned later wearing underwear and a shirt, a T-shirt
inside out. He confirmed this.
In explaining Steve’s confirmation of these events, Bales stated, “He said he had
been drinking too much when he said it, but he said it did happen.” Bales
confirmed that Steve’s mental illness and the admissions he had made—including
his statement about a deputy bringing a gun belt and his admission to hearing
voices—were separate from his drinking problem. While Bales noted that Steve’s
presentation was complicated by his alcohol use problems, Bales testified, “in my
opinion, this is about far more than his abuse of alcohol.”
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No. 2022AP51
¶5 Doctor Bales further testified that he believed that Steve was stable
enough to be placed on outpatient treatment. Bales then clarified, “I would defer
the timing to the Court or his team, but he was not suicidal or violent when I met
with him. He was cordial, he was pleasant.”
¶6 Carol testified next. She recounted that she first called the police on
July 9 after not hearing from Steve, who had begun drinking again. Carol
explained that after law enforcement arrived, she told them that Steve was
sleeping downstairs. The officers would not enter the house, however, due to a
previous situation unknown to her, one that she declined to talk about at the
hearing because it was “secondhand.” Thereafter, she again asked the officers to
talk with Steve, as he was “just sleeping” downstairs; however, they refused.
After Steve drank more throughout the day, Carol testified that Steve “was just
getting belligerent and I wanted him out of the house.” Carol called the police a
second time on July 9 at around 8:00 p.m., but they again refused to enter her
home. Ultimately, Carol barricaded herself in her bedroom by placing a side table
in front of the door. However, Carol testified that she “was not scared of [Steve].
He wasn’t going to hurt me. He was obnoxious. He was a drunk, obnoxious
person.”
¶7 Carol further explained that she had removed in excess of twenty
guns from their home at the advice of Steve’s brother. She also stated that she had
been in constant contact with Steve’s brother to try to figure out what steps to take
regarding Steve, as Steve’s relapse with alcohol was a “scary, sad, situation.” In
addition, Carol confirmed that on July 10, the day after she had barricaded herself
in her room, Steve admitted to her that he had been hearing voices.
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¶8 Carol testified that later that weekend, while she was in Madison
attending a funeral, Steve’s brother called to let her know that Steve had started
drinking again. When she arrived home later that night, she assumed that Steve
was home because his truck was there, and when she looked in the basement, she
thought he was sleeping there. At lunch the next day, Carol came home to check
on Steve, but he was not there. After talking with Steve’s brother and determining
that they needed to find Steve, Carol spoke with a friend of Steve’s, who was also
a deputy. Steve’s deputy friend then talked to law enforcement to “get [Steve’s]
phone pinged” so they could find Steve. On Monday morning, Steve arrived
home intoxicated, wearing shorts and a T-shirt that was on both backward and
inside-out.3
¶9 Kevin, who had known Steve since junior high, testified next. He
explained that he had called Steve on Sunday afternoon to see if he wanted to go
to Michigan, and Steve had asked to be picked up because he had been drinking
and could not drive. While Kevin was driving, Steve hit him “eight to ten times
throughout the evening” and knocked off Kevin’s glasses. In addition, Steve
asked Kevin to turn onto narrow rural roads in Michigan several times. When
Kevin finally made the requested turn, Steve had him pull the car over, but did not
explain why he did so, and simply agreed when Kevin suggested they get back on
the main road. Additionally, Steve requested that they perform certain evasive
maneuvers to avoid persons he thought were following him, leaving Kevin
confused and concerned. Kevin testified that there were times during the night
3
Although Dr. Bales described Steve as arriving home in his underwear, Carol refuted
that description, stating: “[H]e was not in his underwear, as was stated by the doctor. He was in
shorts.”
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No. 2022AP51
when Steve said “goodbye” to him: “I asked [Steve] what he meant and he got
angry with me. And I said, I’m sorry to upset you, but when people say things like
that, they are usually thinking about suicide, and [Steve] just ignored it.” Kevin
confirmed that Steve did not specifically express to him that he was planning to
commit suicide.
¶10 Following the witnesses’ testimony, the circuit court concluded that
Steve had a mental illness that was being amplified by alcohol and that Steve
suffered from psychotic behavior, mood swings, irritability, and depression. The
court noted Dr. Bales’ testimony that Steve had been hearing voices and that his
presentation had been worsening. In addition, the court found that “[Steve] was
downplaying, minimizing, and rationalizing the mental illness diagnosis and
blaming it on drinking too much.”
¶11 The circuit court further concluded that Steve was a significant
danger to himself, based upon his statements and the context for those statements
that was provided through the testimony at the hearing. Specifically, the court
reasoned:
He’s talking about leaving this world and then making a
statement to the Brown County Deputy that if they come up
to his house, they better bring a gun belt. And I know we
are basing this on [Steve] acknowledging that he made that
statement…. And I believe that’s a very significant
statement to make from somebody who now we have a
doctor saying that does have a mental illness, that that
makes [Steve] a significant danger to himself requiring a
commitment and treatment. The only reason I think the
guns in the home are relevant in this case is that it verifies
that there was an opportunity to carry out the threat that if
they come to his home that they better bring a gun belt.
Following the above analysis, the court ultimately stated: “I think that’s a very
clear manifestation of somebody … describing a suicide by police officer type
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No. 2022AP51
situation.” The court further explained that under the statute, a threat of suicide or
serious bodily harm is sufficient to meet the dangerousness standard.
¶12 The circuit court ordered Steve’s involuntary commitment on an
outpatient basis but it declined to enter an accompanying order for involuntary
medication and treatment, concluding that Steve had the capability to understand
his medications and make his own decisions regarding those medications. This
appeal follows. We include additional facts below as relevant to our discussion.
DISCUSSION
¶13 Steve argues, and the County concedes, that this appeal is not moot.
We generally do not consider moot issues. State ex rel. Olson v. Litscher, 2000
WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. An issue is moot when its
resolution will have no practical effect on the underlying controversy. Id.Although Steve’s commitment expired in early 2022 and the County did not seek
to extend it, he is still subject to a lasting collateral consequence in the form of a
firearms ban. Because Steve is still subject to this collateral consequence of his
commitment, a decision voiding his commitment would have a practical effect on
the underlying controversy. See Marathon County v. D.K., 2020 WI 8, ¶25, 390
Wis. 2d 50, 937 N.W.2d 901. Accordingly, this appeal is not moot.
¶14 In a WIS. STAT. ch. 51 proceeding, a petitioner has the burden to
prove by clear and convincing evidence that a subject individual is mentally ill, a
proper subject for treatment, and dangerous to himself or herself, or to others. See
WIS. STAT. § 51.20(1)(a), (13)(e). Whether this burden has been met presents a
mixed question of fact and law. Waukesha County v. J.W.J., 2017 WI 57, ¶15,
375 Wis. 2d 542, 895 N.W.2d 783. We uphold the circuit court’s findings of fact
unless they are clearly erroneous. Id. Whether these findings satisfy the statutory
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No. 2022AP51
standards is a question of law we review de novo. Id. Steve does not contest the
court’s findings that he was mentally ill and a proper subject for treatment. He
argues only that the County failed to present clear and convincing evidence that he
was a danger to himself under § 51.20(1)(a)2.a., the subsection on which the court
based its commitment decision.
¶15 A petitioner may prove that a person is dangerous and warrants
commitment under any of the five standards set forth in WIS. STAT.
§ 51.20(1)(a)2.a.-e. See Langlade County v. D.J.W., 2020 WI 41, ¶30, 391
Wis. 2d 231, 942 N.W.2d 277. To establish that a person is dangerous under
§ 51.20(1)(a)2.a. in a commitment proceeding, the County must prove by clear and
convincing evidence that the person “[e]vidences a substantial probability of
physical harm to himself or herself as manifested by evidence of recent threats of
or attempts at suicide or serious bodily harm.” § 51.20(1)(a)2.a. The term
“substantial probability” means “much more likely than not.” D.K., 390 Wis. 2d
50, ¶35 (citation omitted).
¶16 Steve argues that the statements he made did not constitute “threats”
under the statute because they were too ambiguous to show that he intended to act
upon them. We disagree.
¶17 Steve attempts to distinguish his circumstances from those in
Outagamie County v. Michael H., 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d
603, in which our supreme court addressed the proof of “evidence of recent threats
of … suicide” required under WIS. STAT. § 51.20(1)(a)2.a. In Michael H.,
Michael exhibited a number of delusional and paranoid behaviors over the course
of a week, asking to be taken to the hospital a number of times but in each instance
refusing treatment and leaving. Michael H., 359 Wis. 2d 272, ¶¶11-13, 18. When
8
No. 2022AP51
transported to the hospital a final time, a nurse asked Michael whether he was
suicidal, to which he responded “yes.” Id., ¶16. When asked by his mother what
his plan to commit suicide was, Michael responded “that it was too hard to
explain, it was too long, he could not explain, and he did not know.” Id.
Although Michael later argued that this statement was a “thought” and not a
“threat” of suicide because he had no intent to act on his thoughts, the court
reasoned that the ordinary definitions of the word “threat” included “an indication
of impending danger or harm.” Id., ¶34. Under this definition, the court
concluded that the jury could have considered Michael’s statements to be “threats”
of suicide. Id.
¶18 In addition, our supreme court refused to conclude that “an
articulation of a specific plan is necessary in order to constitute a threat” for the
purposes of WIS. STAT. § 51.20(1)(a)2.a. Michael H., 359 Wis. 2d 272, ¶37. The
court explained that it would be unreasonable to expect a person already in a “poor
or confused mental state” to be capable of making a clear indication of what his or
her intent was. Id., ¶35. Instead, the court concluded that “[w]here credible
evidence supports an inference that a person who affirmed that he [or she] was
suicidal had an intent to act, we will not reverse a jury’s dangerousness finding on
the grounds that the person was not specific enough in articulating his [or her]
intent.” Id., ¶4.
¶19 Steve argues that unlike in Michael H., he never affirmed to anyone
that he was suicidal or wanted to harm himself in any way, and, as a result, the
statements he made were too ambiguous for the circuit court to conclude that he
had an intent to act upon them. However, Michael H. does not require that a
person explicitly make a statement such as “I wish to commit suicide” in order for
his or her statement to be considered a threat of suicide. Rather, the person’s
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No. 2022AP51
statements must have evidenced “an indication of impending danger or harm.”
Id., ¶34.
¶20 Moreover, and contrary to Steve’s argument, Dr. Bales’ examining
report reveals that Steve did make explicit threats of suicide.4 In his report, Bales
notes that Steve “minimized, rationalized and downplayed events, but did admit he
had made suicidal comments and threats whether sober or not.” (Emphasis added.)
This evidence strongly supports the circuit court’s dangerousness conclusion
grounded in Steve’s risk of harming himself, and refutes the distinction Steve
attempts to draw between his circumstances and those in Michael H. Although
Steve “den[ied] current suicidal or threatening behaviors” during the examination,
Bales noted that Steve had been having both hallucinations and “various amounts
of suicidal ideation for quite some time.” Bales’ report therefore belies Steve’s
assertion that Michael H. is distinguishable because, unlike the subject individual
in that case, Steve never expressed that he was suicidal.
¶21 We note that, unlike in Michael H., Steve did not admit to Dr. Bales
that he was currently suicidal. However, Bales specifically concluded that
because Steve was a police officer, he was “intimately familiar with the [WIS.
STAT.] chapter 51 process and has used that to avoid mental health care in
general.” Bales further testified that Steve “is trying to downplay events as he has
done for years.” Bales also opined that Steve was attempting to “minimize, and
even rationalize all the events leading to [his] hospitalization.” Under these
circumstances, it is unlikely that in a conversation with an examining mental
4
Doctor Bales’ report was entered into evidence at the final hearing, and we can
therefore consider it.
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No. 2022AP51
health professional, Steve would have explicitly stated that he was currently
“suicidal,” as he was aware of the commitment consequences that could stem from
the conversation.
¶22 Furthermore, in his report, Dr. Bales described a “detailed” phone
call that he had with Carol during Steve’s examination, a call made at Steve’s
request. During the call, Carol “admitted calling 911 on July 9 with [Steve’s]
worsening psychotic behavior with alcohol consumption.” Moreover, she
explained that Steve “had been naked and intoxicated making very suicidal threats
in the garage that day.” (Emphasis added.) Neither this call nor Steve’s direct
admission of past suicidal threats were addressed at the final hearing. However,
when taken together with the gun belt comment and the remainder of the erratic
and “degenerating” behavior described above, we conclude that Steve’s threats
were not ambiguous but instead manifested a substantial probability that he would
harm himself. We therefore conclude the County presented sufficient evidence to
establish, by clear and convincing evidence, that Steve was dangerous under WIS.
STAT. § 51.20(1)(a)2.a.5
¶23 We further disagree with Steve’s argument that his comment
regarding a deputy bringing a gun belt was too ambiguous to be considered a
threat, or did not amount to an intention to act. The circuit court’s finding that
5
We acknowledge that some of the descriptions of Steve’s behavior over the course of
the weekend, although odd, did not amount to threats of suicide. For example, we reject the
County’s argument that Steve was attempting to commit suicide when he hit his friend Kevin’s
glasses from his face while Kevin was driving, simply because Kevin could not see without his
glasses. Although Steve’s behavior was concerning to Kevin, Kevin did not allege (and nothing
in the record suggests) that Steve was attempting to crash the car or commit suicide by knocking
off Kevin’s glasses. Although not all of Steve’s behavior is relevant to our dangerousness
analysis, the evidence ultimately supports a finding of dangerousness under WIS. STAT.
§ 51.20(1)(a)2.a.
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No. 2022AP51
Steve’s comments were a threat of “suicide by police officer” is supported by
witness testimony at the final hearing. Carol made it clear that responding officers
refused to enter the home two separate times when called during the weekend at
issue. Both of these visits occurred after Steve made a comment to a deputy about
the deputy needing to bring his gun belt if he wanted to come to his house. The
court reasonably concluded from both Steve’s comment and the officers’
responses that the officers were afraid Steve would follow through on his threat.
The court also made the reasonable conclusion that Steve had been referring to a
“suicide by cop” scenario in making the comment to the deputy. To the extent the
court’s finding is one of fact, we uphold it unless it is clearly erroneous—and here
the court’s finding is supported by the record. See J.W.J., 375 Wis. 2d 542, ¶15.
The seriousness of Steve’s threat is further magnified by another comment
Dr. Bales made in his report, detailing that Steve “was also noted to have
attempted to get another deputy to shoot him by suicide by cop ten years prior.”
In line with the court’s finding, we conclude that the record supports a conclusion
that Steve’s statement requesting officers bringing a gun belt when coming to his
home was a serious threat of suicide, manifesting a substantial probability of harm
to Steve.
¶24 Following our supreme court’s decision in Michael H., this court
examined what circumstances constituted a “threat” of suicide in Marathon
County v. T.A.T., No. 2019AP1709, unpublished slip op. (WI App June 29,
2021).6 There, Travis, who had reportedly fallen near a lake, “continuously said
over and over again that he wanted [responding police officers] to leave him alone,
6
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).
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No. 2022AP51
leave him there to die, that he just wanted it all to be over.” Id., ¶4. Travis argued
that his statements about being left to die did not constitute explicit threats of
suicide but we determined that his statements constituted an “indication of
impending danger or harm” under the definition adopted in Michael H. T.A.T.,
No. 2019AP1709, ¶25. We based this conclusion on Travis’s statements, taken in
conjunction with experts’ reports making it clear Travis was dangerous due to his
risk of suicide stemming from prior suicide attempts and his mental illness, and
specific thoughts that Travis admitted he experienced about killing himself by
drowning. Id., ¶¶25-26. Our holding in T.A.T. makes it further evident that an
“indication of impending danger or harm” constituting a threat under WIS. STAT.
§ 51.20(1)(a)2.a. may be found through statements and circumstances other than
explicit threats of suicide or admissions of suicidal thoughts, such as Steve’s
comment regarding the gun belt.
¶25 Steve makes a similar argument to one we rejected in T.A.T.,
claiming that his statements fell short of threats, in part, because he was heavily
intoxicated throughout the course of the weekend prior to his detention. He
correctly points out that the definition of “mental illness” for the purposes of a
WIS. STAT. ch. 51 commitment “does not include alcoholism,” and he claims that
the statements he made were simply a result of his drinking. See WIS. STAT.
§ 51.01(13)(b). Steve contrasts his behavior to the factual circumstances relied
upon by the court in T.A.T. in finding Travis to be dangerous. Steve argues that in
T.A.T., this court concluded that the county was only able to prove that Travis’s
statements were more than “drunken ramblings” because Travis had admitted to a
doctor that he had been suicidal. T.A.T., No. 2019AP1709, ¶26. Without such an
admission here, Steve argues that the County cannot prove that his statements
were not merely the result of his intoxication.
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No. 2022AP51
¶26 This argument is unavailing, as Dr. Bales clearly stated in his report
that Steve “minimized, rationalized and downplayed events, but did admit he had
made suicidal comments and threats whether sober or not.” (Emphasis added.)
This statement alone evidences that Steve’s behavior and comments cannot be
fully attributed to his drinking. Bales’ conclusion also refutes Steve’s argument
that his circumstances are different than those in T.A.T. on the premise that he did
not admit to a doctor that he had been suicidal. In addition, Bales testified that
“[Steve] downplayed [the statements he had made,] stating it was from him
drinking too much, which it was. But the thing is … that in my opinion, this is
about far more than his abuse of alcohol.” Steve argues this latter statement only
goes to a description of his mental illness. However, it is evident from a plain
reading of Bales’ oral statement—and written statements in his report—that he
concluded Steve’s threats were not solely made because he had been drinking. As
in T.A.T., this professional medical opinion supports our conclusion that Steve’s
statements were not mere “drunken ramblings,” but were instead actionable threats
of suicide. See id., ¶26.
¶27 In sum, to the extent that there is a question about whether Steve
made direct threats of suicide during the weekend in question, the evidence
supports the conclusion that Steve did, and was dangerous as defined under WIS.
STAT. § 51.20(1)(a)2.a. Steve’s statements evidenced “an indication of impending
danger or harm,” and according to Dr. Bales, were not solely attributable to his
consumption of alcohol.
¶28 Steve next argues that the County did not prove there was a
“substantial probability” he would harm himself, as evidenced by recent threats of
suicide. Steve acknowledges that saying goodbye and making statements about
the gun belt and wanting to be “out of this world” could be interpreted as
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No. 2022AP51
references to suicide or self-harm. Still, Steve argues that the County failed to
meet the statutory requirement of proving that it was much more likely than not
that he would actually harm himself.
¶29 Steve points to Carol’s testimony at the final hearing and he argues
“it was clear in her testimony that Steve posed no danger to himself, to her or to
anyone else.” Although Carol testified at the final hearing that she was not afraid
of Steve and that he had never expressed an intent to harm her, she was not asked
and did not testify as to whether she believed Steve posed a danger to himself—
the focus of his commitment. She did, however, note that at one point, she
removed all of the guns from the home and barricaded herself in her bedroom due
to Steve’s behavior. As previously mentioned, Dr. Bales recounted that during
their phone conversation, Carol explicitly recounted Steve making “very suicidal
threats in the garage” on the day that she called 911. Based on these facts, we
disagree with Steve’s contention that Carol made it clear that he posed no harm to
himself, and Bales’ report supports the opposite conclusion.
¶30 Next, Steve argues that when he returned home and was met by
police, he did not use or threaten violence against them. This outcome, he reasons,
shows that there was not a “substantial probability” that the gun belt threat he
made would lead to physical harm to himself. While we certainly take the result
of a threat into consideration, whether a person explicitly follows through on a
threat does not necessarily change the outcome of our dangerousness analysis.
Given the circumstances, including Steve’s many suicidal threats and his
degenerating behaviors, the fact that Steve did not follow through with a threat on
one occasion does not alter our conclusion that he was dangerous in that he was
substantially likely to harm himself.
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By the Court.—Order affirmed.
This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)4.
16