State v. Jay Gagliano

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.
March 11, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2025AP173-CR Cir. Ct. No. 2023CF820

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JAY GAGLIANO,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL O. BOHREN, Judge. Reversed and cause remanded.

Before Neubauer, P.J., Grogan, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The State of Wisconsin appeals from an order
dismissing several criminal counts against Jay Gagliano. For the reasons that
No. 2025AP173-CR

follow, we reverse the order and remand the matter for further proceedings
consistent with this opinion.

¶2 In the early morning hours of May 21, 2023, Gagliano texted his
wife from the front steps of a Waukesha church to say that he had a knife and was
planning to kill himself. Gagliano’s wife notified police, who were dispatched to
the scene.

¶3 On their way to the scene, police learned that Gagliano had multiple
arrest warrants. Accordingly, upon locating Gagliano, they placed him in
handcuffs. At that time, Gagliano appeared intoxicated, having slurred speech,
glassy eyes, and an odor of alcohol.

¶4 Gagliano’s wife arrived at the scene soon thereafter and began
interfering with the investigation. When she got too close to Gagliano, one officer
grabbed her arm to move her away. In response, Gagliano looked directly at the
officer and yelled, “Don’t touch my wife, I’ll fuck you up.”

¶5 Gagliano continued to yell as officers escorted him to a nearby squad
car. Upon reaching the car, Gagliano made his body go limp and refused to get
inside. When one officer ordered him to get into the car, Gagliano looked directly
at the officer and said, “Bitch, I will fucking kill your ass.”

¶6 Officers eventually managed to push Gagliano into the squad car and
close the door. Moments later, one of the officers realized that Gagliano had not
yet been fully searched, so he opened the door. When he did, Gagliano yelled at
him, “I will fucking end your ass.”

¶7 The State ultimately charged Gagliano with three counts of threat to
an officer and one count of obstructing, all as a repeater. Gagliano moved to

2
No. 2025AP173-CR

dismiss the counts of threat to an officer on First Amendment grounds.
Specifically, he argued that his statements to the officers did not constitute “true
threats” that could be constitutionally punished.

¶8 The circuit court held a hearing on the motion and asked the parties
whether it was hearing evidence or merely argument. The State noted that
whether a statement is a true threat, unprotected by the First Amendment, is an
issue of fact for the jury to decide, so a pretrial mini-trial on the subject was not
appropriate. Gagliano disagreed and asked the court to hear evidence and find
relevant facts.

¶9 In the end, the circuit court sided with Gagliano. It reviewed an
officer’s body camera video and found that Gagliano’s statements were not true
threats that could be constitutionally punished. In reaching this conclusion, the
court cited Gagliano’s intoxication as well as the fact that the officers “showed no
fear” of Gagliano. Accordingly, it dismissed the counts of threat to an officer.
The State now appeals.

¶10 On appeal, the State contends that the circuit court erred in
dismissing the counts of threat to an officer. It complains that the court
improperly usurped the jury’s role by determining that Gagliano’s statements were
not true threats.

¶11 “Only a ‘true threat’ is constitutionally punishable under statutes
criminalizing threats”; other types of threats are protected speech. See State v.
Perkins, 2001 WI 46, ¶17, 243 Wis. 2d 141, 626 N.W.2d 762, abrogated on other
grounds recognized by Kindschy v. Aish, 2024 WI 27, ¶14 n.9, 412 Wis. 2d 319, 8
N.W.3d 1. “True threats,” as distinguished from other types of threats, are
“‘serious expression[s]’ conveying that a speaker means to ‘commit an act of

3
No. 2025AP173-CR

unlawful violence[,]’” as opposed to jest, hyperbole, etc. Counterman v.
Colorado, 600 U.S. 66, 74 (2023) (alteration in original; citation omitted).

¶12 Whether a statement constitutes a true threat is an issue of fact for
the jury to decide. Perkins, 243 Wis. 2d 141, ¶48; State v. Douglas D., 2001 WI
47, ¶33, 243 Wis. 2d 204, 626 N.W.2d 725. Indeed, the pattern jury instruction
for the crime of threat to an officer reflects this understanding. See WIS JI—
CRIMINAL 1240D.1 Only when conduct is “unquestionably” protected by the First
Amendment may a circuit court intervene and dismiss the charge as a matter of
law. Douglas D., 243 Wis. 2d 204, ¶33.

¶13 Here, we agree with the State that the circuit court improperly
usurped the jury’s role by determining that Gagliano’s statements were not true
threats. There simply was no basis for the court to hold a pretrial evidentiary
hearing and answer the very issue of fact that was to be submitted to the jury at
trial.2 In so doing, the court was effectively making the State prove its case twice,
which it is not required to do.

¶14 We also agree that this is not a case where the conduct was
“unquestionably” protected by the First Amendment so that dismissal was
warranted. Gagliano’s statements to the officers were clear and unequivocal

1
The instruction for the first element, threatening to cause bodily harm, reads in relevant
part, “This element requires a true threat. ‘True threat’ means that a reasonable person would
interpret the threat as a serious expression of intent to do harm, and the person making the
statement is aware that others could regard the statement as a threat and delivers it anyway.” WIS
JI—CRIMINAL 1240D.
2
As noted by the State, the only question the circuit court should have been answering at
this stage of the case was whether (based on the allegations of the complaint) a reasonable jury
could determine that Gagliano’s statements were true threats. If so, then the counts of threat to an
officer could be constitutionally applied to Gagliano.

4
No. 2025AP173-CR

threats. Nothing about the context in which he made them suggests they should
have been taken as a joke or hyperbole. Whether Gagliano was aware3 that others
could regard his statements as threats and whether a reasonable person would
interpret them as a serious expression of intent to do harm4 are questions for the
jury to decide at trial. See WIS JI—CRIMINAL 1240D.

¶15 For these reasons, we reverse the order of the circuit court and
remand the matter for further proceedings consistent with this opinion.

By the Court.—Order reversed and cause remanded.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

3
Gagliano’s apparent intoxication would not negate this awareness unless it was
involuntarily produced. See WIS. STAT. § 939.42 (2023-24). All references to the Wisconsin
Statutes are to the 2023-24 version.
4
It is possible that the officers “showed no fear” of Gagliano because he was handcuffed
at the time he made his statements. However, in assessing whether a statement is a true threat,
“[i]t is not necessary that the speaker have the ability to carry out the threat.” State v. Perkins,
2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d 762, abrogated on other grounds recognized by
Kindschy v. Aish, 2024 WI 27, ¶14 n.9, 412 Wis. 2d 319, 8 N.W.3d 1. See also WIS JI—
CRIMINAL 1240D.

5