Trempealeau County v. C.B.O., 2024AP1520-FT, 2/4/25, District III (one-judge decision; ineligible for publication); case activity
COA affirms, holding that the evidence of a verbal threat to kill someone, and “Carl’s” actions during a subsequent police chase, were both sufficient to establish dangerousness under Wis. Stat. § 51.20(1)(a)2.b.
Carl was emergently detained after police responded to a call that he allegedly threatened to kill someone, and he subsequently fled from police in a motor vehicle chase. After first stopping, Carl backed away and drove around two police cars and then continued to another city, driving around spike strips that had been deployed in an attempt to stop him. (¶¶2, 4). After Carl stopped in front of an office building, officers tried to remove him from the car, but he had locked the doors. The officers put spike strips around the car and broke a window. Although he had stopped the car, Carl then turned the engine back on after police broke the window. An officer who testified at the final hearing stated that multiple officers had been touching the car at that point and could have been injured had he tried to drive away. (¶5).
Two doctors also testified about Carl’s history with schizoaffective disorder and ch. 51 commitments. They both opined that he was mentally ill, dangerous, etc. (¶¶6-9). The circuit court found that Carl was dangerous under § 51.20(1)(a)2.b. and 2.c. (¶10).
Carl argues the county presented insufficient evidence to prove that he is dangerous under both b. and c. COA concludes there was sufficient evidence under b. and therefore does not address c.
As to the second standard, Carl argues (1) that the circuit court erred because it did not make a finding that his threat to his neighbors was a threat to do harm that would place others in reasonable fear of violent behavior; and (2) that the “police incident” did not amount to violent behavior and that his response to the police was “understandable”/that police overreacted during the interaction. (¶14).
COA concludes that while “Carl is correct that the circuit court did not make an explicit finding that he threatened to do serious harm or that his threat put people in reasonable fear of violent behavior” the circuit court “clearly found [the officer’s] testimony to be credible.” (¶15). And a threat to “kill somebody” satisfies the requirement of a threat to do “serious physical harm” under § 51.20(1)(a)2.b. See generally R.J. v. Winnebago County, 146 Wis. 2d 516, 431 N.W.2d 708 (Ct. App 1988). As someone who heard the threat called police, COA concludes that “[t]he people who heard this threat clearly feared the threat enough” for one of them to call the police, permitting an inference that the caller was put in fear of violent behavior.
COA also concludes that Carl’s actions during the police encounter independently satisfy the second standard. One of the doctors attributed Carl’s behavior to his mental illness, Carl created the conflict (by making the threat in the first place), and the circuit court found that Carl put the officers in danger when he turned the car back on at the end of the incident. (¶¶16-19). “At the very least, Carl’s act constituted a threat of violent behavior that placed the officers in reasonable fear of serious physical harm.” See generally Outagamie County v. Michael H., 2014 WI 127, ¶¶4, 34-37, 359 Wis. 2d 272, 856 N.W.2d 603 (explaining the meaning of “threat” in the context of Wis. Stat. ch. 51).
A footnote in this opinion explains the distinction between the terms “forfeiture” and “waiver,” and provides a good example of how to respond to such arguments from the county in a ch. 51 appeal:
The County argues that Carl raises, for the first time on appeal, an argument that the police “overreact[ed]” to the situation and created conflict via a “high degree of force,” and that Carl therefore “waived” this argument by not raising it in the circuit court. See Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 (“Arguments raised for the first time on appeal are generally deemed forfeited.”).
First, we note that the County uses the incorrect term when it argues that Carl “waived” his argument by not raising it in the circuit court. Our supreme court clarified in State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, that although Wisconsin courts previously used the terms “forfeiture” and “waiver” interchangeably, those terms “embody very different legal concepts. ‘Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.’” Id., ¶29 (citation omitted). Given that the County argues that Carl failed to timely raise an argument, the proper concept here is forfeiture.
That matter aside, the County is perhaps correct that Carl failed to raise this argument before the circuit court and that this court could conclude that Carl forfeited the argument. However, Carl raises a fair point that the argument is simply part and parcel of his overall sufficiency of the evidence argument. In any event, forfeiture is a rule of administration, and it does not affect our power to address issues. Dalka v. American Fam. Mut. Ins. Co., 2011 WI App 90, ¶6, 334 Wis. 2d 686, 799 N.W.2d 923. We choose to address Carl’s argument on its merits.
(¶16 n.7).
