Waukesha County v. M. D. S., Jr.

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.
November 6, 2024
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. 2024AP1315 Cir. Ct. No. 2023ME217

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF M.D.S., JR.:

WAUKESHA COUNTY,

PETITIONER-RESPONDENT,

V.

M.D.S., JR.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Waukesha County:
PAUL F. REILLY, Reserve Judge. Affirmed.
No. 2024AP1315

¶1 GUNDRUM, P.J.1 M.D.S., Jr., referred to herein by the pseudonym
Martin Smith,2 appeals from an order involuntarily committing him under WIS.
STAT. ch. 51 and a related order allowing for the involuntary administration of
medication and treatment. He contends the circuit court applied the incorrect legal
standard and ultimately, Waukesha County failed to prove he was dangerous under
WIS. STAT. § 51.20(1)(a)2.b. We disagree and affirm.

Background

¶2 On June 14, 2023, Smith was emergently detained pursuant to WIS.
STAT. § 51.15, and the County sought a court order for his commitment as well as
for the involuntary administration of medication and treatment. The circuit court
held a probable cause hearing on June 19, 2023, at which it found, based on
Smith’s stipulation, probable cause to believe that Smith was “a danger to himself
or others.” The court scheduled a final hearing for June 27, 2023, at which, the
following relevant evidence was presented.

¶3 Alec W. testified that he called the police on June 14, 2023, because
of concerning conduct by Smith. Specifically, Alec was moving items into his
brother and father’s apartment when Smith, who “didn’t seem like he was fully
coherent,” approached Alec and “proceeded to come closer to us [but] wasn’t
saying anything.” Smith continued “to come up to us and was kind of getting in
our personal space … bothering us.” Smith “tr[ied] to follow us in[to] the house,”

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
We use a pseudonym because we believe it makes the decision easier to read and is
more humanizing than initials.

2
No. 2024AP1315

and Alec communicated to him that he should “back off.” Smith continued to
“stay in our personal space. He was trying to put his hands and arms around us
[and] kept kind of growling, making weird noises.” Alec told Smith to “back up,”
and Smith

was still kind of growling, saying weird stuff, running
around, pulling on his shirt. And then he kind of got close
to us again. He kind of got into my space to the point
where he … kind of looked like he was going to charge at
me, but I was, like, I don’t think he was going to ….

After Smith laid hands on Alec, Alec “pushed him off me just enough to get my
space, and then I grabbed my phone and I called 911.” Alec expressed that Smith
“definitely would have [entered into his brother and father’s apartment] had we
not shut the door,” with Alec “pretty much block[ing]” Smith.

¶4 Alec testified that “the reason that I think I called the cops was
[Smith] started making gun signs with his hands,” and Alec demonstrated how
Smith pointed with his index finger and middle finger and his thumb in the air,
pulling his thumb down. After that, Alec “was trying to … gauge if [Smith] ha[d]
any weapons on him” and concluded that it did not appear so. Smith “was saying
some biblical reference stuff” and “could tell that I was on the phone with the
cops,” and “he kept saying it was going to be a showdown or kept saying
something, and kept making these gun signs … you know, pointing, whatever.”

¶5 On cross-examination, Alec stated that “[t]he main reason [he called
law enforcement] was the fact that [Smith] was getting in my personal space and
was clearly unhinged and didn’t seem to have much control over what he was
doing,” explaining that by “unhinged,” he meant “shouting, growling … acting as
if he was not mentally stable at the time being. Like his actions could spark off at
any moment.” Alec clarified that he did not push Smith but that Smith “got into

3
No. 2024AP1315

my personal space and pushed me and put his hands on me, and I was removing
him from my space”; multiple times, Alec told Smith to “keep his distance.” Alec
acknowledged that Smith did not cause him any physical pain.

¶6 Alec explained that after he called law enforcement, he followed
Smith around to “mak[e] sure he didn’t go inside of his house and go to grab a
weapon as he clearly stated.” Alec reiterated that Smith “was pulling a fake
trigger on a gun with his hand saying multiple times that it was going to be a
showdown when the cops got there.”

¶7 A police officer testified that when she encountered Smith, in
restraints, at the hospital on June 14, 2023, he

was speaking to biblical individuals who were not present
in the room, along with speaking with the Pope. There
were multiple different conversations that [Smith] was
having with those individuals that weren’t present. And
there [were] times where he would be yelling and
screaming, and at times in a closed, clinched [sic] fists with
folds [sic] out of his bed, making threats or speaking to
those individuals. At one moment [Smith], I believe, was
speaking to the Pope or a biblical prophet and stated that he
had mercy on that individual, otherwise he was going to
harm them.

The officer stated that at one point Smith “had stated that he was going to use a
rifle to harm that individual, that person that wasn’t present in the room.” On
cross-examination, the officer acknowledged she did not see Smith “get physical
with anyone” and that the threatening statements Smith made were “to nonpresent
individuals.”

¶8 Dr. Darryl Kabins, Smith’s treating psychiatrist who was also
medical director at the Waukesha County Mental Health Center, testified that in
addition to treating Smith, he also had “reviewed his emergency detention [and]

4
No. 2024AP1315

talked over the phone with his outpatient psychiatrist … from the VA.” Kabins
testified that Smith suffers from schizophrenia, which causes impaired judgment,
thought disorganization, and paranoid delusions about being harassed by the
police. Kabins added that Smith is “reluctant to come up with a plan to stay away
from the police to avoid an altercation as he feels like he needs to keep doing
that.” Smith

also refers to this battle of religious people that he’s not
clear who it is…. Not clear whether []he’s hearing voices
or talking to himself. He’s disorganized regarding that.
But he cannot put together a clear plan how to manage his
paranoia safely and continues to make statements that he’ll
continue the behaviors that ultimately led to his detainment.

¶9 When asked if the behaviors that led to his detainment and his
impaired judgement “make it much more likely than not that physical injury or
impairment to himself or others will occur,” Kabins responded that Smith is

at definitely increased risk of harm to self [or] others as he
keeps escalating trying to pursue something that he’s not
sure what he’s trying to pursue other than being harassed
by the police. With the reported statements that he had
made in emergency detention about standoffs and the
detention while he was psychotic, making statements about
killing the Pope. Not that he’s going to but that he has
rifles to kill the Pope, and I can’t get him to come up with a
sufficient safety plan on how to manage that paranoia
safely.

When asked if Smith needs continued inpatient care, Kabins responded,

[h]e is showing some improvement, but he continues to
have disorganized thoughts and delusional beliefs that
lead[] to him continuing to state that he plans to actively
monitor the police that he perceives are harassing him.
And he’s not able to come up with a goal of what he’s
trying to accomplish or show awareness of how his
behaviors in response to his paranoid delusions have put
himself in altercations with others that have led to reports
of him pushing somebody and making statements about
potentially dangerous things like standoffs.

5
No. 2024AP1315

¶10 Kabins stated that he had spoken with Smith earlier in the day
“about some side effects he may be having from his antipsychotic medication” and
possible alternatives to remaining on the same medication path. In talking with
Smith as well as his outpatient psychiatrist, Kabins learned that Smith

has been noncompliant with antipsychotic medications for
his schizophrenia over the past year and continues to
present high risk to be noncompliant, even though he’s
compliant here, as he does not like the medications. And
he acknowledged to me he would be high risk not to take it
as it’s causing some of the side effects that he was telling
me about today.

¶11 Kabins stated that when he has asked Smith about his access to
firearms, Smith “chooses not to disclose to me. The only thing he has disclosed to
me is that he has a concealed carry card that he was hoping to be able to
maintain.” When asked, Smith “would never tell [Kabins] whether he actually
does have firearms.”

¶12 On cross-examination, Kabins stated that Smith

says he understands that he needs to be on medication,
[but] he hasn’t been able to clearly verbalize to me the
symptoms that he’s having of his schizophrenia that require
the medications, because although he acknowledges his
schizophrenia, he does not acknowledge that the struggles
he’s having with police [are] part of that.

So he remains at high risk for noncompliance with
antipsychotic medication without being on an injectable
medication.

Kabins indicated that Smith “is showing some improvement on the antipsychotic
medication that has helped him to not be agitated.”

¶13 In its ruling, the circuit court stated that

had this ended at the time that [Alec] called the police and
the police came and took [Smith] in based upon what

6
No. 2024AP1315

clearly … were delusionary statements, and the testimony
from [the officer] speaks to that, that may not show
dangerousness.

But when if you look at the gun signals and the
references, and I took [Alec’s] testimony … that after
[Smith] tried to enter the apartment that apparently did not
belong to him, and [Alec] was concerned about safety, it
was at that point that [Smith] started making gun signs with
his hands and pointing the gun signs at [Alec], making
some biblical references and then saying “it’s going to be a
showdown.”

So putting that all into context, I have no question
whatsoever that that is a threat to do harm to others and it
meets the standard under [WIS. STAT. §] 51.20(1)(a)2.b. of
others being placed in reasonable fear of violent behavior
or serious physical harm as evidenced by a recent overt acts
[sic], attempts or threat to do such harm to other[s].

… [T]he County by clear and convincing evidence
proved the dangerous component under [subd. para. b].

The court entered orders committing Smith for six months and allowing his
involuntary medication and treatment during that time. Smith appeals.

Discussion

¶14 A person is a proper subject for commitment under WIS. STAT.
§ 51.20(1) if the County proves by clear and convincing evidence that the person
is mentally ill, a proper subject for treatment, and dangerous to himself or others.
See Langlade County v. D.J.W., 2020 WI 41, ¶31, 391 Wis. 2d 231, 942 N.W.2d
277. Because Smith does not dispute that he is mentally ill and a proper subject
for treatment, we focus only on the circuit court’s determination he does dispute—
that he is dangerous to others.

¶15 Whether the County met its burden of proving Smith is dangerous
presents a mixed question of law and fact. See Waukesha County v. J.W.J., 2017
WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783. “[W]e will uphold a circuit

7
No. 2024AP1315

court’s findings of fact unless they are clearly erroneous,” D.J.W., 391 Wis. 2d
231, ¶24, and “we accept reasonable inferences from the facts,” Winnebago
County v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109
(citation omitted). “[W]hether the facts satisfy the statutory standard” of
dangerousness, however, is a question of law we review independently. D.J.W.,
391 Wis. 2d 231, ¶¶25, 47. On appeal, Smith has the burden to show that the
circuit court erred. See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d
448, 899 N.W.2d 381.

¶16 As relevant to this appeal, the County needed to establish that Smith

[e]vidences a substantial probability of physical harm to
other individuals as manifested [(1)] by evidence of recent
homicidal or other violent behavior, or [(2)] by evidence
that others are placed in reasonable fear of violent behavior
and serious physical harm to them, as evidenced by a recent
overt act, attempt or threat to do serious physical harm.

WIS. STAT. § 51.20(1)(a)2.b. The County only needed to establish that the
evidence satisfied either (1) or (2), not both.

¶17 The evidence showed that an unprovoked Smith began harassing
Alec and did not stop despite Alec’s communications to him to “back off.” Smith
pushed and “put his hands on” Alec, causing Alec to “push[] him off,” and “kept
kind of growling, making weird noises.” Smith attempted to enter the home of
Alec’s brother and father and “definitely would have [entered] had” they not shut
the door, with Alec “pretty much block[ing]” Smith.

¶18 Alex’s concerns were heightened when Smith “started making gun
signs with his hands,” “pulling a fake trigger,” causing Alec to attempt to
determine if Smith had any weapons on him. With Smith aware that Alec was on
the phone with the police, Smith “kept saying it was going to be a showdown or

8
No. 2024AP1315

kept saying something, and kept making these gun signs.” Alec was concerned
that Smith’s “actions could spark off at any moment.” Multiple times, Alec had to
tell Smith to “keep his distance.”

¶19 After calling law enforcement, Alec followed Smith to “mak[e] sure
he didn’t go inside of his house and go to grab a weapon as he clearly stated.”
Smith repeatedly stated that “it was going to be a showdown when the cops got
there.”

¶20 At the hospital, a restrained Smith was yelling and screaming, at
times with a clenched fist, and making threats to individuals who were not present.
At one point Smith “stated that he was going to use a rifle to harm [those]
individual[s].”

¶21 Smith’s treating psychiatrist at the mental health center testified that
Smith suffers from schizophrenia and has paranoid delusions about being harassed
by the police. Yet, Smith is “reluctant to come up with a plan to stay away from
the police to avoid an altercation as he feels like he needs to keep doing that.”
Smith is unable to “put together a clear plan how to manage his paranoia safely
and continues to make statements that he’ll continue the behaviors that ultimately
led to his detainment.” The psychiatrist testified that Smith is “at definitely
increased risk of harm to self [or] others as he keeps escalating trying to pursue
something [related to] being harassed by the police.” While in emergency
detention, Smith made statements “about standoffs” and “about killing the Pope,”
indicating that he “has rifles” to do it. The psychiatrist again reiterated that he
“can’t get [Smith] to come up with a sufficient safety plan on how to manage that
paranoia safely.” The psychiatrist explained why Smith was a high risk for
noncompliance with antipsychotic medication to control his condition.

9
No. 2024AP1315

Unquestionably concerning given his mental state, Smith deliberately avoided
disclosing his access to firearms, yet he revealed he has a concealed carry permit
and seemed to indicate he “has rifles.”

¶22 In light of the totality of the evidence presented, we conclude that
Smith has not demonstrated the circuit court erred in determining he is dangerous
under WIS. STAT. § 51.20(1)(a)2.b. Absent involuntary commitment and
medication and treatment, Smith is at high risk to not comply with antipsychotic
medications that could control his dangerous condition. In this case, he
approached and laid hands on a stranger, Alec, and attempted to enter into a
residence he was not permitted in. Once police were called, he indicated his intent
and indeed desire for a “showdown” with the police, making the threatening
gesture of repeatedly pulling the trigger on a “gun.” He made statements
indicating a willingness to shoot at law enforcement officers and at other times
made statements suggesting he had access to firearms. His statements and actions
indicated a willingness to use firearms to kill.

¶23 Smith “evidence[d] a substantial probability of physical harm to
other[s].” See WIS. STAT. § 51.20(1)(a)2.b. The County established this by
showing evidence that Alec was placed in reasonable fear that Smith would
engage in violent behavior and serious physical harm to at least law enforcement.
Indeed, Smith’s comments caused Alec to call 911, evaluate Smith’s person to
determine if he was currently in possession of a firearm, and follow Smith to make
sure he did not go into his own residence to retrieve a firearm. Alec’s concern of
violent behavior and serious physical harm by Smith was objectively reasonable in
light of all of Smith’s words and actions.

10
No. 2024AP1315

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

11