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Evidence sufficient to support commitment under 51.20(1)(a)2.c

Outagamie Countyv. G.S., 2019AP1950, 1/20/21, District 3 (1-judge opinion, ineligible for publication); case activity

“George” called law enforcement claiming to be a federal authority who wanted to make a citizen’s arrest of some duck hunters. When a deputy arrived at the lake he saw George in a boat with 2 encased firearms about 100 yards from shore where a group of duck hunters were upset about George’s verbal encounter with them. George never pointed a gun at anyone.  Based on this evidence, a doctor’s report, and substantial hearsay evidence, the circuit court committed Geoge under the 3rd standard of dangerousness, which requires a pattern of recent acts demonstrating a substantial probability that he would injure himself or others.

In affirming the circuit court’s finding of a “pattern of recent acts or omissions,” the court of appeals first pointed to “evidence” that the day before the encounter with the duck hunters, Goerge had allegedly fired his gun into the air causing ammunition to land among some houses. The deputy admitted that he wasn’t on duty and had no personal knowledge of this alleged event. Next, the circuit court highlighted George’s angry encounter with the duck hunters (including the fact that George is not a federal authority). Third, it cited the examining doctor’s testimony that George had been committed 10 times previously, had attempted suicide at some point in the past, appeared delusional during his evaluation, possessed guns, did not believe that he is mentally ill, and can present himself in a way that suggests he does not need treatment.

Section 51.20(1)(a)(2)c provides that the probability of injury is not “substantial” if reasonable provision for the subject’s protection is available in the community and there is a reasonable probability the individual will avail himself of those services. On this point, the court of appeals made an important clarification of the law. The circuit court appeared to shift the burden to Goerge to prove that he would take advantage of community services. The court of appeals held that the county bears the burden of proving that the individual will not avail himself of services.  However, in this case, the county carried its burden. Opinion, ¶¶34-35.

The court of appeals called this a “close case.” It held that mental illness and possession of firearms alone are insufficient evidence to commit a person under the 3rd standard.  Opinion, ¶39.  It stressed that George had engaged in a “pattern” beginning on the day he allegedly fired a gun into the air. Opinion, ¶25, ¶28, 39.

On Point does not have access to the record or briefs so it’s unclear what the parties argued. However, the deputy’s testimony about George firing a gun into the air appears to be hearsay. For that matter, so does the doctor’s testimony about George’s alleged prior suicide attempts and commitments. In a Chapter 51 case, hearsay evidence on dangerousness is inadmissible. S.Y. v. Eau Claire County, 156 Wis. 2d 317, 327-328, 457 N.W.2d 326 (Ct. App. 1990). Query whether the exclusion of the hearsay would have made a difference in this “close case.”



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