COURT OF APPEALS

DECISION

DATED AND FILED

August 30, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2021AP1955

2022AP102

Cir. Ct. No. 2021ME3

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF C. B. O.:

TREMPEALEAU COUNTY,

 PETITIONER-RESPONDENT,

 V.

C. B. O.,

 RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Trempealeau County: 

SCOTT L. HORNE, Judge. Reversed. 
Nos. 2021AP1955

2022AP102

2

¶1 STARK, P.J.1 In these consolidated appeals,2 Chris3appeals from 

an order committing him under WIS. STAT. ch. 51 and from an order extending his 

commitment for an additional year. Chris argues that both orders should be 

reversed because Trempealeau County (the County) failed to present sufficient 

evidence that he is dangerous pursuant to WIS. STAT. § 51.20(1)(a)2. at both his 

initial commitment and recommitment hearings. Chris also asserts that the circuit 

court, at his commitment hearing, failed to make specific factual findings with 

reference to the subdivision paragraph of § 51.20(1)(a)2. under which it found 

Chris to be dangerous, as required by our supreme court in Langlade County v. 

D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. We agree that the court 

failed to make the specific factual findings required by D.J.W. at Chris’s 

commitment hearing and that the County did not present sufficient evidence to 

establish that Chris is dangerous during either his initial commitment or 

recommitment proceedings. Accordingly, we reverse both orders.

BACKGROUND

¶2 On February 25, 2021, Chris was placed under an emergency 

detention. See WIS. STAT. § 51.15. The circuit court held a probable cause 

 

1

 These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) 

(2019-20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

2

 On March 4, 2022, the appellant moved to consolidate appeal Nos. 2021AP1955 and 

2022AP102. By order, we denied the motion, noting that the first appeal was already in the 

briefing stage. Instead of consolidating the cases, we directed that the briefing “be submitted to 

the court at the same time to be handled as companion cases.” Upon review of the briefs, 

however, we order these cases to be consolidated for disposition on our own motion. 

3

 For ease of reading, we use a pseudonym when referring to the appellant in these

confidential matters.
Nos. 2021AP1955

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3

hearing, found probable cause for commitment, and ordered two doctors to 

examine Chris and prepare written reports prior to the final commitment hearing.

¶3 At the final hearing, on March 11, 2021, Deputy Ross Huson with 

the Trempealeau County Sheriff’s Department (the department) testified regarding 

the events that led to Chris’s emergency detention. According to Huson, one of 

Chris’s family members had called the department and requested that it conduct a 

welfare check on Chris. The family member reported that Chris “had left some 

disturbing voicemails on a family member’s phone talking about hitmen and 

hangmen coming to get him.” Huson testified that he went to Chris’s apartment to 

check on him, but he was unable to speak with Chris, as the doors of the apartment 

complex were “barricaded” from the interior of the apartment complex. Huson

explained that at the time, Chris was the only occupant in the four-unit apartment 

complex. Huson then contacted the Trempealeau County Housing Authority, 

which helped him remove the barricades from the door.4

¶4 The following day, Huson and other officers made contact with 

Chris inside his residence after Chris invited them in to talk. Huson described the 

residence as “very clean” and “in good living condition.” According to Huson, 

Chris explained that he had barricaded the doors of the apartment complex 

because he was concerned that hitmen were there to get him. Chris also told 

Huson that the hitmen had been in the hallway outside his door with guns the night 

before and that he had called 911 to have the dispatchers run the license plates of 

 

4

 The Housing Authority also informed Huson that Chris had barricaded the door on 

three previous occasions and that other tenants would be moving into the apartment complex 

within “the next day or that coming weekend.”
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4

the cars he had seen drive by that he believed belonged to the hitmen. Huson 

testified that when he asked Chris why hitmen would be trying to harm him, Chris 

“didn’t have an explanation, he mumbled a lot. He was hard to understand and 

he—his conversation was going several different directions.” Additionally, Huson 

testified that Chris told him that Chris tried to retrieve a firearm that he had 

previously sold to his son, explaining that he felt he needed a firearm for his 

safety. Huson stated that Chris had also been to the sheriff’s department “a couple

weeks prior” to the emergency detention, seeking the department’s help in 

retrieving the firearm from his son.

¶5 While inside the residence, Chris permitted officers to “look 

around.” Huson observed a crossbow, a compound bow, and an arrow all stored 

in Chris’s second bedroom as well as a hatchet next to Chris’s bed. In addition, 

Huson found a hunting knife in a sheath inside a charcoal grill located next to the 

door, and Chris commented that he needed the knife “for safety.” On 

cross-examination, Huson testified that he was not aware of any reports of Chris 

wielding any of the weapons observed in his apartment, nor was he aware that 

Chris had made any specific threats to another person. Huson explained, however,

that he detained Chris because he felt there was a “safety concern that unknown 

individuals to [Chris] could, you know, make him believe that these were hitmen 

and just having the access to weapons inside the house, I was concerned for his 

safety as well as safety to anybody else.”
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5

¶6 Doctor Thomas Ledoux, a psychologist, also testified at the final 

hearing.5 He explained that his attempt at examining Chris was relatively short

because Chris politely invoked his right to remain silent and declined to participate 

in the examination. See WIS. STAT. § 51.20(9)(a)4. After speaking with Chris’s 

attending psychiatrist and reviewing the statement of emergency detention and 

admission records, Ledoux diagnosed Chris with schizoaffective disorder, 

characterized by psychosis, paranoia, and delusions that impacted his ability to 

“kind of reality test in his daily life.” He opined that Chris’s condition was 

treatable with medication.

¶7 According to Ledoux, Chris’s thoughts and beliefs were a “departure 

from reality,” and he displayed unsafe behaviors, “mainly very unsafe to himself, 

potentially other people”—specifically, barricading himself in his apartment 

resulting from his belief that hitmen were out to get him. Ledoux emphasized that 

Chris’s efforts to obtain a firearm were concerning, which Ledoux believed to be 

“in connection with [his] fear that hitmen were after him.” Ledoux testified that 

he was concerned Chris might think future tenants were a threat, and he could 

harm them. When asked to elaborate on his concerns regarding Chris’s safety, 

Ledoux explained:

 So my concern, so he was—he wasn’t making any, as 

far as I know, he was not making any direct threats to other 

people or even to himself. However, I believe that being in 

the psychotic state, he did have impaired judgment. 

Pair[ed] with treatment nonadherence, lack of insight in his 

condition, I was concerned about his ability, his safety in 

 

5

 Although Chris argues that Ledoux’s examination report was not entered into evidence, 

our review of the record indicates that the County moved for admission of Ledoux’s report at the 

final hearing, and it was received by the circuit court. Ledoux’s testimony at the hearing was 

consistent with the information contained in his report.
Nos. 2021AP1955

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6

the community. Again, my main concern is trying to 

possess a firearm while in that paranoid psychotic state 

seemed dangerous to me.

¶8 At the close of evidence, the County claimed that Chris was 

dangerous due to his access to weapons and the possibility that Chris could 

mistake future tenants for hitmen. The County, however, did not specify on the 

record what statutory dangerousness standard it believed it had proved. Chris’s 

counsel expressed his concern that the testimony involved “a lot of potentials 

being thrown around and that [Chris is] potentially dangerous, he could potentially 

hurt someone. But there’s been no overt act toward any of that.... There need[s]

to be some outward sign of actual dangerousness and I don’t think that that has 

been presented at all.”

¶9 The circuit court concluded that Chris was mentally ill, a proper 

subject for treatment, and dangerous. The court explained that there were 

concerns Chris would “act out violently” toward a person he misperceived to be a 

hitman and that, in barricading the front door to the complex, Chris was taking 

action “on the basis of that apparently psychotic belief.” The court then stated:

 There were weapons available. The deputy observed a 

crossbow, compound bow and arrow, a hatchet and a 

hunting knife in a grill. [Chris] had indicated that he 

viewed that as a weapon, he needed it for his safety. 

 Apparently sometime earlier he—he had been 

attempting to acquire firearms. I don’t know that I can 

connect that to the mental state; apparently that was a 

couple of weeks earlier and at least there appears to be a 

gap in the testimony in terms of the motivation for 

attempting to acquire the firearms.

¶10 The circuit court found credible Ledoux’s opinion that Chris 

“presents a substantial risk of physical harm to others.” The court further 

reasoned:
Nos. 2021AP1955

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7

The mechanism that he views as causing harm I accept as 

credible; that is that [Chris], one of the delusions is that he 

views other people as hitmen or threatening to him. The 

obvious response to that is defense. It appeared that he was 

taking actions consistent with that by barricading the 

apartment through the cord preventing people from 

entering the apartment with weapons inside that would be 

available to defend himself. 

 At the time Deputy Huson arrived, [Chris] was the only 

resident of the four unit apartment. However, there are 

other residents who were in the process or imminently 

moving in and the credible concern from the court’s 

perspective is that [Chris] would in the midst of his 

delusions view those individuals as potential hitmen and 

respond violently in response to that delusion.

The court concluded that Chris presents “a significant risk of serious physical 

harm to others, given the risk of danger ... [and] history of noncompliance with 

treatment.” The court entered a six-month commitment order and an 

accompanying order for involuntary medication and treatment.6

¶11 One month before Chris’s initial commitment expired on 

September 11, 2021, the County filed a petition for recommitment. At the 

recommitment hearing, Dr. James Scott Persing, a psychiatrist, testified regarding

his examination of Chris conducted prior to the recommitment hearing.7 Persing 

testified that his findings were based on an evaluation of Chris, in which Chris 

participated, as well as a document review. Persing diagnosed Chris with 

 

6

 The circuit court held a separate hearing to address the medication order. Chris refused 

to appear at the hearing. At that hearing, Dr. Jared Gorsuch, a psychiatrist, testified and opined 

that Chris was not competent to refuse medication. As Chris does not challenge the medication 

order, we will not discuss the details of Gorsuch’s testimony further. We do note that Gorsuch’s 

examination report was entered into evidence at the hearing addressing the medication order.

7

 Persing testified that he produced a report based on his examination of Chris, but the 

report was never admitted into evidence at the recommitment hearing. Accordingly, we do not 

consider the contents of that report in our decision. See Langlade County v. D.J.W., 2020 WI 41, 

¶7 n.4, 391 Wis. 2d 231, 942 N.W.2d 277.
Nos. 2021AP1955

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8

schizoaffective disorder and explained that he was currently prescribed an 

antipsychotic medication. According to Persing, Chris’s treatment was going 

“quite well,” and Chris was living independently in his own apartment. However, 

Persing opined, based on Chris’s statements, that Chris’s compliance with his 

treatment was only a result of the circuit court order. Persing further believed that 

Chris would not take medication for his mental illness without a court order. 

Persing explained that Chris “would have rather rapid return of symptoms and 

have concerns about being potentially harmed to the point of being a danger to the 

community.”

¶12 Persing described Chris’s belief that his previous commitment was 

unjust, stating that Chris believed:

that what occurred at the time of his detention was a 

misunderstanding, that it was unjust and that it was 

unnecessary. And he’s gone through this process because 

of the [circuit] court order being in place, but again feels 

that it was unjust and does not have any recollection of the 

items that were outlined in the officer’s notes and the 

emergency detention papers regarding him potentially 

having a potential harm to someone who may or may not 

be present, may or may not have a weapon, may or may not 

be intending him harm. 

According to Persing, he was primarily concerned about the “safety of the 

community, but if [Chris] was unarmed and tried to defend, for instance, himself 

against a perceived threat, then my [concern] would be for him.” On 

cross-examination, Persing confirmed that Chris had not made any threats to 

individuals or expressed suicidal or homicidal ideation. When asked, Persing also 

admitted that he could not “say with 100 percent certainty that there would be a 

substantial probability of harm” from Chris as he could only give his “best 

psychiatric opinion.”
Nos. 2021AP1955

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9

¶13 Following Persing’s testimony, Chris’s counsel moved for dismissal 

based on insufficient evidence of dangerousness, explaining that case law 

provided that “a diagnosis of schizophrenia by itself does not demonstrate 

requisite substantial probability of physical impairment.” The circuit court denied 

Chris’s motion, reasoning that “[t]he requisite degree of dangerousness was 

established at the time of the original hearing and the court did find a nexus 

between the mental health condition and the dangerousness as evinced by 

[Chris’s] actions at the time.”

¶14 Chris testified next. He explained that since the original 

commitment order was entered, he had been participating in his treatment and 

taking his medication, that he lived independently and took care of his own needs, 

and that he had not had any police contact. Chris also testified that he had never 

harmed anyone and that the initial commitment had been a “misunderstanding.” 

Chris explained that he had called the police because there had been a man in the 

hallway with a gun, but by the time the police arrived the man had left. Chris 

confirmed that he believed his medication was unnecessary and that he would not 

take it if he were not on commitment, but he testified that he would continue to 

participate in other treatment services through the County.

¶15 In a subsequent oral ruling, the circuit court concluded that Chris

would be a proper subject for commitment if treatment were withdrawn and that 

he was dangerous under WIS. STAT. § 51.20(1)(a)2.b. The court found Persing’s 

testimony to be credible. The court then summarized the events of the initial

commitment, highlighting that Chris believed that hangmen or hitmen were 

coming to get him and that “[Chris] felt it necessary to arm himself to ward off the 

threat.” According to the court,
Nos. 2021AP1955

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10

When [Huson] arrived, [Chris] had armed himself with a 

crossbow, with knives. There was evidence that he had 

attempted to acquire a firearm from family members all for 

the purpose of defending himself against the imaginary 

hitmen or hangmen that he felt were coming to harm him.

 He was found to be dangerous because of the significant 

likelihood that he would misconstrue an innocent person as 

the hangman or hitman and react with the weapons that he 

had acquired due to the delusion that he was being 

threatened.

¶16 After acknowledging Chris’s compliance with his medication and 

treatment and his ability to return to living independently in his home, the circuit 

court explained:

 And I certainly under[stand] [Chris’s counsel’s] 

argument that by virtue of that improvement, the court 

would not be in a position to find that the [C]ounty has met 

its burden with respect to dangerousness. However, it’s 

also apparent in the interview with Dr. Persing that [Chris] 

still persists in the belief that the original commitment was 

a violation of his rights, that it was baseless, that he was not 

delusional, that he was not attempting to acquire weapons 

to defend himself from the hitmen or hangmen; that he was 

simply trying to recover a firearm from a family member 

that apparently had been in the possession of the family 

member for about a year. 

The court further discussed Chris’s attempt to obtain a firearm, stating that at the 

time of the initial commitment, the court had found that Chris’s explanation was 

not credible, and that “it appeared to be an action that was taken because of the 

delusion that people were coming to get him and that he needed the firearm and 

other weapons to defend himself and indicates it was a logical inference that he 

would be prepared to use those weapons.”

¶17 The circuit court also noted that Chris had stated that if treatment 

were withdrawn, he would not continue to take medication, which the court 

described as “instrumental in his improvement.” The court repeated Persing’s 
Nos. 2021AP1955

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11

opinion that Chris would “decompensate and approach his original condition” if 

treatment were withdrawn. It ultimately concluded that “there’s a high probability 

that [Chris] would become dangerous to others or that others would be placed in 

reasonable fear of his behaviors and substantial physical harm” and a likelihood 

that Chris “could lash out at others because of a mistaken belief that they were 

hangmen or hitmen or similar individuals who he misperceived as being present to

threaten him.”

¶18 The circuit court subsequently entered an order for involuntary 

medication and treatment and extended Chris’s commitment for an additional 

year. Chris appeals from both the initial commitment order and from the order 

extending his commitment.

DISCUSSION

¶19 To involuntarily commit a person, the petitioner must prove three 

elements by clear and convincing evidence: (1) the person is mentally ill, (2) the 

person is a proper subject for treatment, and (3) the person is dangerous. See WIS.

STAT. § 51.20(1)(a)1.-2., (13)(e); D.J.W., 391 Wis. 2d 231, ¶29. 

Section 51.20(1)(a)2.a.-e. outlines the five standards by which a person may be 

found “dangerous,” and a person must be found dangerous under at least one of 

those standards to be committed. D.J.W., 391 Wis. 2d 231, ¶30. Each standard

requires the petitioner to “identify recent acts or omissions demonstrating that the 

individual is a danger to himself [or herself] or to others.” Portage County v. 

J.W.K., 2019 WI 54, ¶17, 386 Wis. 2d 672, 927 N.W.2d 509. All of the standards 

require that the petitioner prove a “substantial probability” of dangerousness, 

which has been defined as “much more likely than not.” Marathon County v. 
Nos. 2021AP1955

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12

D.K., 2020 WI 8, ¶35, 390 Wis. 2d 50, 937 N.W.2d 901. While certainty is not 

required, “mere possibility and conjecture are insufficient.” Id., ¶52.

¶20 After an initial six-month commitment order, the circuit court may 

extend an individual’s commitment for up to one year. WIS. STAT.

§ 51.20(13)(g)1.; D.J.W., 391 Wis. 2d 231, ¶31. The same dangerousness 

standards apply where the petitioner seeks to extend a commitment, except that the 

petitioner may alternatively prove dangerousness by “showing that there is a 

substantial likelihood, based on the subject individual’s treatment record, that the 

individual would be a proper subject for commitment [under one of the five 

dangerousness standards] if treatment were withdrawn.” Sec. 51.20(1)(am). 

Section 51.20(1)(am) recognizes that “an individual’s behavior might change 

while receiving treatment” in that the individual “may not have exhibited any 

recent overt acts or omissions demonstrating dangerousness because the treatment 

ameliorated such behavior.” J.W.K., 386 Wis. 2d 672, ¶19. Dangerousness, 

however, “remains an element to be proven to support both the initial commitment 

and any extension.” Id. Accordingly, our supreme court determined that a 

recommitment under § 51.20(1)(am) must be grounded “in the subdivision 

paragraphs of subd. 2.” D.J.W., 391 Wis. 2d 231, ¶41. Thus, “circuit courts in 

recommitment proceedings are to make specific factual findings with reference to

the subdivision paragraph of ... § 51.20(1)(a)2. on which the recommitment is 

based.” D.J.W., 391 Wis. 2d 231, ¶3.

¶21 Whether the petitioner has met its burden of proof in a commitment 

proceeding is a mixed question of fact and law. See id., ¶24. We review a circuit 

court’s findings of fact for clear error, but we independently determine whether 
Nos. 2021AP1955

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13

the facts satisfy the legal standard. Waukesha County v. J.W.J., 2017 WI 57, ¶15, 

375 Wis. 2d 542, 895 N.W.2d 783. 

¶22 On appeal, Chris argues that the evidence the County presented at 

both his initial commitment and the recommitment hearings was insufficient to 

establish that he is dangerous under any of the five subdivision paragraphs of WIS.

STAT. § 51.20(1)(a)2.8 For the reasons that follow, we conclude that the County 

did not meet its burden at either hearing to show by clear and convincing evidence 

that Chris is dangerous to himself or others under that statute.

I. Initial Commitment

a. The Appeal from Chris’s Initial Commitment Order is Not Moot.

¶23 The County argues that Chris’s appeal from his initial commitment 

order is moot because the initial six-month commitment and medication orders 

expired on September 11, 2021. Chris acknowledges that these orders have 

expired, but he argues that he is still subject to collateral consequences of his 

commitment, namely a firearms ban. According to Chris, our supreme court’s 

decision in D.K. “provides a clear rule that appeals from original commitments are 

not moot.” Whether an issue is moot is a question of law that we review de novo. 

D.K., 390 Wis. 2d 50, ¶16.

¶24 Our supreme court recently addressed the mootness doctrine as it 

relates to recommitments under WIS. STAT. ch. 51 in Sauk County v. S.A.M., 2022 

 

8

 Chris does not challenge the circuit court’s findings that he is mentally ill and a proper

subject for treatment. See WIS. STAT. § 51.20(1)(a)1. Chris also does not challenge the orders for 

involuntary medication and treatment. 
Nos. 2021AP1955

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14

WI 46, 402 Wis. 2d 379, 975 N.W.2d 162. There, however, the court also 

reiterated the law as it relates to initial commitments, explaining that

 [t]wo terms ago, we held that an appeal of an expired 

initial commitment order is not moot because the order 

collaterally subjects the committed person to a continuing 

firearms ban. See [D.K., 390 Wis. 2d 50,] ¶25. We 

recognized that this firearms ban constitutes an ongoing 

impairment of the person’s constitutional right to bear 

arms, which we deemed to be “no minor consequence.” Id.

(citing U.S. CONST. amend. II; WIS. CONST. art. I, § 25; 

District of Columbia v. Heller, 554 U.S. 570 (2008); 

Wis[consin] Carry, Inc. v. City of Madison, 2017 WI 19, 

373 Wis. 2d 543, 892 N.W.2d 233). We also explained that 

prevailing in an appeal of an expired initial commitment 

order voids the firearms ban. Id. Because voiding the 

firearms ban is a “practical effect” that has a “causal 

relationship” to the successful appeal of an expired initial 

commitment order, we deemed the appeal not moot. Id.

S.A.M., 402 Wis. 2d 379, ¶21. Accordingly, we agree with Chris that his appeal 

of the expired initial commitment order is not moot as Chris continues to suffer the 

collateral consequences of the firearms ban required under a commitment order.

9

 

See WIS. STAT. § 51.20(13)(cv)1. We therefore address the merits of Chris’s 

appeal of his initial commitment.

b. The Circuit Court Failed to Make Required Dangerousness 

Findings.

¶25 We note at the outset that the circuit court failed to make specific 

factual findings as to which of the five statutory standards of dangerousness under 

WIS. STAT. § 51.20(1)(a)2.a.-e. the County established to support Chris’s initial 

commitment. In D.J.W., our supreme court stated “that going forward circuit 

 

9

 We note that our supreme court determined in Sauk County v. S.A.M., 2022 WI 46,

¶24, 402 Wis. 2d 379, 975 N.W.2d 162, that liability for the cost of care is also a collateral 

consequence sufficient to render a recommitment appeal not moot. In this case, Chris does not 

argue liability for the cost of care as a collateral consequence; thus, we do not address it further.
Nos. 2021AP1955

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15

courts in recommitment proceedings are to make specific factual findings with 

reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the 

recommitment is based.” D.J.W., 391 Wis. 2d 231, ¶3. The court observed that 

this requirement serves two purposes. Id., ¶42. “First, it provides clarity and extra 

protection to patients regarding the underlying basis for a recommitment.” Id. 

“Second, a requirement of specific factual findings with reference to a subdivision 

paragraph of ... § 51.20(1)(a)2. will clarify issues raised on appeal of 

recommitment orders and ensure the soundness of judicial decision making, 

specifically with regard to challenges based on the sufficiency of the evidence.” 

D.J.W., 391 Wis. 2d 231, ¶44.

¶26 Chris argues that during the initial commitment proceedings in this 

case, the circuit court did not “make a statutory citation to any standard of 

dangerousness,” it “was not obvious which standard the court determined was 

met,” and the court’s failure to articulate the standard of dangerousness “has 

frustrated effective appellate review.” He therefore asserts that the appropriate 

remedy for the court’s D.J.W. violation is outright reversal. See Sheboygan 

County v. M.W., 2022 WI 40, ¶¶4, 38, 402 Wis. 2d 1, 974 N.W.2d 733.

¶27 In contrast, the County claims that D.J.W.’s directive is only 

applicable in recommitment proceedings, not initial commitments. Further, even 

if the D.J.W. requirement were to apply in this case, the County contends that the 

circuit court “made the finding that [Chris] ‘does present a significant risk of 
Nos. 2021AP1955

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16

serious physical harm to others,’” which “is a direct reference to” WIS. STAT.

§ 51.20(1)(a)2.b. and (1)(a)2.c.10

¶28 Upon our review of the record in this case, we agree that the circuit 

court violated D.J.W.’s directive by failing to reference a specific subdivision 

paragraph of WIS. STAT. § 51.20(1)(a)2. when finding that Chris is dangerous or to 

make findings that correlate to the elements of dangerousness under a specific 

subdivision paragraph. We disagree with the County’s assertion that D.J.W.’s 

directive is only applicable in recommitment proceedings, as the rationale for our 

supreme court’s decision in D.J.W. is equally applicable to initial commitments. 

See D.J.W., 391 Wis. 2d 231, ¶¶43-44; Trempealeau County v. B.K., 

No. 2020AP1166, unpublished slip op. ¶17 n.3 (WI App July 26, 2021); 

Winnebago County v. A.A.L., No. 2020AP1511, unpublished slip op. ¶17 n.8 

(WI App Mar. 24, 2021).11

¶29 Further, we reject the County’s claim that the circuit court’s 

reference to “physical harm to others” was sufficient to establish the standard of 

dangerousness under WIS. STAT. § 51.20(1)(a)2. As the County noted, “physical 

harm to others” could either reference § 51.20(1)(a)2.b. or (1)(a)2.c. While the 

 

10

 The County, however, fails to make any argument on appeal that WIS. STAT.

§ 51.20(1)(a)2.b. is applicable under the facts.

11

 Unpublished opinions authored by a single judge, issued on or after July 1, 2009, may 

be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b). 
Nos. 2021AP1955

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17

County argues that subd. para. (1)(a)2.c. is applicable, it is unclear from the record 

which standard provided the basis for the court’s decision.12

¶30 This court recently addressed a D.J.W. violation in a recommitment 

proceeding. Barron County v. K.L., No. 2021AP133, unpublished slip op. 

(WI App Aug. 9, 2022). In that unpublished decision, we concluded that the 

D.J.W. violation was harmless error, as the subject of the recommitment did not 

challenge the sufficiency of the evidence to support the circuit court’s 

determination of dangerousness, and as it was clear from the record on which 

subdivision paragraph the court had based its determination of dangerousness. Id., 

¶¶36-42.

¶31 This case, however, is distinguishable for three reasons: (1) the 

County did not argue harmless error; (2) Chris does challenge the sufficiency of 

the evidence to support a finding of dangerousness; and (3) it is not clear from this 

record under which specific standard the court found Chris to be dangerous, as the 

court did not specify a statutory subdivision paragraph or make findings that 

would support dangerousness under any subdivision paragraph. See also 

Outagamie County v. J.J.H., No. 2021AP244, unpublished slip op. ¶12 (WI App 

Sept. 14, 2021) (concluding that referencing language such as “recent threatening 

behavior” and “omissions,” which are “not exclusive to a particular dangerousness 

standard,” was insufficient to satisfy D.J.W.’s mandate). Further, as we discuss 

below, we conclude that the evidence was in fact insufficient to establish 

 

12

 This lack of clarity is especially evident considering the County argues on appeal that

WIS. STAT. § 51.20(1)(a)2.c. applied in the initial commitment, while the circuit court found that 

§ 51.20(1)(a)2.b. applied in the recommitment based on identical facts.
Nos. 2021AP1955

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18

dangerousness under any of the subdivision paragraphs of WIS. STAT.

§ 51.20(1)(a)2.

c. The Evidence Was Insufficient for the Circuit Court to Find Chris 

Dangerous under WIS. STAT. § 51.20(1)(a)2.

¶32 We could reverse the circuit court’s initial commitment order based 

on the D.J.W. violation alone. However, to the extent that D.J.W.’s directive 

could be found inapplicable to an initial commitment proceeding and for the sake 

of completeness, including our review of the recommitment order, we will also 

address Chris’s challenge to the sufficiency of the evidence. As noted above, the 

County argues that the court found Chris dangerous under WIS. STAT.

§ 51.20(1)(a)2.c. According to the County, Ledoux’s examination report 

specifically stated this subdivision paragraph as the basis for his opinion that Chris 

is dangerous, and Ledoux’s testimony at the hearing was focused on the same.

¶33 Chris does not argue that the circuit court’s factual findings at the 

initial commitment hearing were clearly erroneous. He does, however, challenge 

the court’s legal conclusion that its findings of fact satisfied one of the five 

standards of dangerousness under WIS. STAT. § 51.20(1)(a)2. We agree. As noted 

above, it is unclear from the record under which standard the court found Chris to 

be dangerous; therefore, we will address each of the standards below.13

¶34 The first standard, WIS. STAT. § 51.20(1)(a)2.a., requires proof that 

the individual is dangerous because he or she “[e]vidences a substantial 

 

13

 We do not address the fifth standard, WIS. STAT. § 51.20(1)(a)2.e., as there are 

separate pleading requirements and the County did not petition to commit Chris under that 

dangerousness standard. See WIS. STAT. §§ 51.20(10)(cm), (13)(g)2d.a.
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probability of physical harm to himself or herself as manifested by evidence of 

recent threats of or attempts at suicide or serious bodily harm.” Here, there was no 

evidence presented that Chris threatened or attempted to harm himself.

¶35 The second standard, WIS. STAT. § 51.20(1)(a)2.b., requires proof 

that the individual is dangerous because he or she

 [e]vidences a substantial probability of physical harm to 

other individuals as manifested by evidence of recent 

homicidal or other violent behavior, or 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.

Here, there was no evidence presented that Chris engaged in any recent homicidal 

or violent behavior, nor was there a recent overt act, attempt, or threat to do 

serious physical harm to others. The testimony at the hearing was that while Chris 

did have some weapons in his apartment, no one was aware of reports that Chris 

“wield[ed] any of the weapons” or that he had made any “direct threats to other 

people.” See Portage County v. E.R.R., No. 2020AP870-FT, unpublished slip op. 

¶19 (WI App Oct. 1, 2020) (concluding that there was insufficient evidence of a 

threat to harm where the individual admitted that he “felt like he wanted to snap 

people’s necks”). To the extent that Chris’s actions as described at the hearing 

could be considered an “overt act,” there was no evidence presented that the overt 

act was an act to do serious physical harm or “that others [were] placed in 

reasonable fear of violent behavior and serious physical harm to them.” 

Sec. 51.20(1)(a)2.b.

¶36 According to the County, the third standard, WIS. STAT.

§ 51.20(1)(a)2.c., is the most reasonably applicable standard. This standard 

requires proof that the individual is dangerous because he or she “[e]vidences such 
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impaired judgment, manifested by evidence of a pattern of recent acts or 

omissions, that there is a substantial probability of physical impairment or injury 

to himself or herself or other individuals.” Id. Ledoux’s testimony established 

that Chris’s judgment is impaired due to his mental illness. However, impaired 

judgment alone is insufficient under the statute without a showing that “there is a 

substantial probability of physical impairment or injury to himself or herself or 

other individuals.” Id. As Ledoux aptly stated, “[I]t’s not illegal to be psychotic.” 

See D.J.W., 391 Wis. 2d 231, ¶57 (“A diagnosis of schizophrenia, by itself, does

not demonstrate the requisite ‘substantial probability of physical impairment.’ If it 

did, the statutory elements of mental illness and dangerousness would be merely 

redundant.”).

¶37 Here, the County argues that Chris’s impaired judgment was 

manifested by his recent pattern of barricading his apartment complex door 

because he was “concerned that hitmen [and hangmen] were there to get him” and 

he had seen them “in his hallway outside of his door.” Under these circumstances, 

however, where Chris was the only tenant in the apartment complex at the time, 

barricading the door did not create a substantial probability of serious physical 

harm to himself or other people. There was no evidence presented that Chris 

would continue to barricade the door once there were other tenants in the complex. 

Further, while there may be a risk that, for example, emergency personnel could 

not reach Chris in the event of an emergency, the same would be true if Chris had 

simply locked his door. In summary, there was no evidence presented that the 

probability of serious physical harm to Chris or others due to Chris’s impaired 

judgment is “much more likely than not” due to his recent acts of barricading the 

apartment complex door. See D.K., 390 Wis. 2d 50, ¶35.
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¶38 The circuit court also concluded that “there are other residents who 

were in the process or imminently moving in and the credible concern from the 

court’s perspective is that [Chris] would in the midst of his delusions view those 

individuals as potential hitmen and respond violently in response to that delusion.” 

The court’s conclusion echoed Ledoux’s expressed “safety concern” that new 

tenants to the apartment complex would be “unknown individuals” to Chris and he 

would “believe that these [people] were hitmen and just having the access to 

weapons inside the house, [Ledoux] was concerned for [Chris’s] safety as well as 

safety to anybody else.” For several reasons, we agree with Chris that the court’s 

conclusions in this regard were based upon mere possibility and conjecture. 

¶39 First, as there were no other tenants in the apartment complex at the 

time of Chris’s detention, there was no evidence that Chris had ever mistaken a 

prior tenant as a threat or threatened a tenant. Second, while the County and 

Ledoux stressed concern with Chris “want[ing] to obtain a firearm,” the circuit 

court discounted that as a factor: “I don’t know that I can connect that to the 

mental state; apparently that was a couple of weeks earlier and at least there 

appears to be a gap in the testimony in terms of the motivation for attempting to 

acquire the firearms.” And third, when Chris did believe he saw “hitmen ... in his 

hallway outside of his door” and that “they had guns with them and that they were 

coming to get him,” the evidence presented by Huson was that Chris “called 911 

and asked [police] dispatchers to run some license plates that he had seen drive by 

and that those were the hitmen.” Thus, when Chris allegedly saw people in the 

hallway, he did not become violent or threatening, and he did not confront them. 

He sought assistance and called police. As Chris argues, he “took measures to 

avoid conflict, not to instigate it.” Thus, the evidence was insufficient to support a 

finding that Chris’s impaired judgment gave rise to a “substantial probability of 
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physical impairment or injury to himself or herself or other individuals.” See WIS.

STAT. § 51.20(1)(a)2.c.; see also D.K., 390 Wis. 2d 50, ¶35.

¶40 And finally, the fourth standard, WIS. STAT. § 51.20(1)(a)2.d., 

requires proof that the individual is dangerous because he or she

 [e]vidences behavior manifested by recent acts or 

omissions that, due to mental illness, he or she is unable to 

satisfy basic needs for nourishment, medical care, shelter or 

safety without prompt and adequate treatment so that a 

substantial probability exists that death, serious physical 

injury, serious physical debilitation, or serious physical 

disease will imminently ensue unless the individual 

receives prompt and adequate treatment for this mental 

illness.

Again, there was no evidence presented in this case that Chris was unable to care 

for his basic needs as enumerated under the statute. In fact, the evidence presented 

was that Chris’s apartment was “very clean” and “in good living condition.” 

Further, Ledoux’s examination report stated that Chris “appeared adequately 

groomed” and his room “was neat and presentable.”

¶41 In essence, the opinions, arguments, and conclusions in this case are 

based entirely on Chris’s “potential” for dangerousness and assertions of how 

Chris might behave dangerously in hypothetical situations without evidentiary 

support in the record. Our supreme court has explained that “mere possibility and 

conjecture are insufficient” to establish a “substantial probability” under WIS.

STAT. § 51.20(1)(a)2. D.K., 390 Wis. 2d 50, ¶52. Here, the circuit court’s 

conclusion that Chris is currently dangerous was based entirely on its concern 

about Chris’s potential future risk, which does not satisfy any of the standards 

under § 51.20(1)(a)2. See J.W.K., 386 Wis. 2d 672, ¶¶17, 24; see also D.J.W., 

391 Wis. 2d 231, ¶34; E.R.R., No. 2020AP870-FT, ¶21 (“[T]here was no 
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testimony at the evidentiary hearing that E.R.R. attempted, or will attempt, to act 

on his feelings or has otherwise exhibited behaviors that would suggest that he 

will physically harm other individuals if treatment were withdrawn.”). Therefore, 

we conclude that the evidence was insufficient to support a finding that Chris is 

dangerous to himself or others at the time of his initial commitment.

II. Recommitment

¶42 Chris also challenges the sufficiency of the evidence of 

dangerousness on his recommitment.

14

 The circuit court found that Chris was 

mentally ill, a proper subject for treatment, and “that there is a substantial 

likelihood, based on [Chris’s] treatment record, that [he] would be a proper subject 

for commitment if treatment were withdrawn.” See WIS. STAT. § 51.20(1)(a), 

(am). This time, prior to issuing a decision on Chris’s recommitment, the court 

reviewed our supreme court’s decision in D.J.W., and, accordingly, it stated on the 

record that it was grounding Chris’s recommitment on the second standard of 

dangerousness, § 51.20(1)(a)2.b., as viewed through the lens of § 51.20(1)(am).

¶43 Chris argues, first, that the circuit court relied on clearly erroneous 

findings of fact to conclude that Chris is dangerous and, second, that the evidence 

is insufficient to support a finding of dangerousness under WIS. STAT.

§ 51.20(1)(a)2.b. The County argues that the court relied on Persing’s credible 

testimony to determine that if treatment were withdrawn, Chris would 

 

14 The County does not argue that the appeal of Chris’s recommitment order is moot 

because at the time of briefing and release of this decision, that order had not expired. Although 

Chris’s counsel alleged to this court that his recommitment order expired August 12, 2022, our 

review of the record suggests that the order is due to expire in September.
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decompensate and return to the previous behaviors described in the initial

commitment, which were dangerous to others. For the reasons that follow, we 

conclude that the County has failed to establish on recommitment that Chris is 

dangerous under § 51.20(1)(am).

¶44 First, we agree with Chris that the circuit court made several factual 

findings in support of its conclusion that Chris was dangerous pursuant to WIS.

STAT. § 51.20(1)(am) that were clearly erroneous based on the testimony 

presented at the initial commitment hearing. “A finding of fact is clearly 

erroneous if it is against the great weight and clear preponderance of the 

evidence.” Metropolitan Assocs. v. City of Milwaukee, 2018 WI 4, ¶62, 379 

Wis. 2d 141, 905 N.W.2d 784 (citations omitted).

¶45 During the circuit court’s oral ruling, it stated that Chris “felt it 

necessary to arm himself to ward off the threat,” that “[w]hen Officer [Huson] 

arrived, [Chris] had armed himself with a crossbow, with knives,” and that 

“[t]here was evidence that he had attempted to acquire a firearm from family 

members all for the purpose of defending himself against the imaginary hitmen or 

hangmen that he felt were coming to harm him.”15 As addressed above, there was 

no evidence presented that Chris ever wielded the weapons that he had in his 

apartment in general or threatened their use toward any person. There was also no 

statement in the record from the initial commitment that Chris was armed when 

Huson arrived at Chris’s home. Chris was not holding any weapons, and the 

 

15

 Chris does not challenge the circuit court’s findings that Chris had been psychotic at 

the time of the emergency detention, that Chris was experiencing delusions that hangmen or 

hitmen were coming to get him, or that Chris had “barricaded himself in his residence.”
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weapons were found in different rooms of the home during a search of the 

apartment.

¶46 As for the firearm, Chris was attempting to seek help from the 

sheriff’s department in retrieving his firearm from his son. Chris stated that he 

needed the hunting knife that was found in a grill and the firearm “for safety,”

16

but there was no testimony presented that Chris had ever wielded those weapons 

against third parties or, as the circuit court suggested, that he intended to use those 

weapons “to ward off the threat” or “defend[] himself against the imaginary 

hitmen or hangmen.”

¶47 Further, in its oral ruling, the circuit court discussed Chris’s attempt 

to obtain a firearm. The court explained that at the time of the initial commitment, 

the court had found that Chris’s “explanation was not credible,” and that “it 

appeared to be an action that was taken because of the delusion that people were 

coming to get him and that he needed the firearm and other weapons to defend 

himself and indicates it was a logical inference that he would be prepared to use 

those weapons.” Our review of the record, however, reveals that at the initial

commitment hearing, the court did not state that it deemed Chris’s explanation 

incredible—indeed, Chris did not testify at the initial commitment hearing. 

Instead, the court noted “a gap in the testimony in terms of the motivation for 

attempting to acquire the firearms,” and it determined that the evidence was 

insufficient to show that Chris’s attempt to reclaim his firearm was related to his 

“mental state.” In general, the court’s findings of fact on recommitment suggested 

 

16

 There was no indication in the record that Chris regarded the crossbow, compound 

bow and arrow, or hatchet as necessary for his safety.
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that Chris had amassed an armory and was taking up arms against individuals, 

including law enforcement, based on his delusions. The record does not support 

this implication, and, accordingly, the findings of the circuit court were clearly 

erroneous.

17

¶48 As to whether the facts presented at the recommitment hearing 

satisfy the statutory standards, we also agree with Chris that the evidence is 

insufficient to support a conclusion that he is dangerous under WIS. STAT.

§ 51.20(1)(a)2.b., as viewed through the lens of § 51.20(1)(am). The testimony at 

the recommitment hearing showed that Chris was doing “quite well” during his

commitment and he had “returned to his previous baseline level of functioning 

independently, taking care of himself, et cetera.” Accordingly, there was no 

additional testimony presented that Chris had engaged in any recent dangerous 

behavior. See D.J.W., 391 Wis. 2d 231, ¶33. Thus, Persing’s opinions and the 

circuit court’s conclusion that Chris is dangerous “because of the significant 

likelihood that he would misconstrue an innocent person as the hangman or hitman 

and react with the weapons that he had acquired due to the delusion that he was 

being threatened,” were based entirely on the evidence presented at the initial 

commitment hearing.

¶49 For the reasons noted above, we concluded that the evidence 

presented at the initial commitment was insufficient to support a finding that Chris 

 

17

 Chris also notes that it is “troubling that the [circuit] court assumed [Chris] had 

hallucinated the person or persons in his hallway, when there is no evidence in the record that 

[Chris] has ever experienced hallucinations.” We agree. It is possible that Chris did see an 

individual or individuals in his hallway with a gun. The fact that Chris believed them to be 

hitmen does not disprove the possibility that they were there.
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is dangerous to himself or others. Our supreme court has explained that a finding 

of dangerousness under WIS. STAT. § 51.20(1)(am) must be grounded in the 

subdivision paragraphs of § 51.20(1)(a)2. See D.J.W., 391 Wis. 2d 231, ¶41. 

Therefore, if “those behaviors” exhibited prior to the initial commitment do not 

meet the requirements under § 51.20(1)(a)2. to establish that the individual is 

dangerous, then the individual should not be found dangerous “based on a 

substantial likelihood that he [or she] would exhibit those [same] behaviors if 

treatment were withdrawn.” See J.W.K., 386 Wis. 2d 672, ¶23.

¶50 Here, there was no additional evidence presented at the 

recommitment hearing to support a finding that Chris is dangerous, aside from 

Persing’s opinion that Chris would not take his medication if he were not on 

commitment and he would decompensate. According to Persing, Chris “would 

have [a] rather rapid return of symptoms and have concerns about being 

potentially harmed to the point of being a danger to the community.” Persing’s 

opinions on Chris’s decompensation and the resulting dangerousness, however, 

were based on Chris’s prior behaviors, which we deemed insufficient to establish 

that he is dangerous under the statute.

¶51 The County presented no evidence at either the initial commitment 

or the recommitment hearings that Chris engaged in any homicidal or violent 

behavior. See WIS. STAT. § 51.20(1)(a)2.b. There is also no evidence “that others 

are placed in reasonable fear of violent behavior and serious physical harm to 

them” as evidenced by an overt act, attempt, or threat to seriously harm anyone. 

Id. And, as noted above, the circuit court’s dangerousness finding at the initial

commitment hearing was based on speculation as to future events, rather than on

evidence that the probability of serious physical harm is “much more likely than 
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not.” See D.K., 390 Wis. 2d 50, ¶35. We therefore conclude that the County 

failed to prove by clear and convincing evidence that Chris is currently dangerous 

under § 51.20(1)(am) based on his behavior prior to the initial commitment. We 

reverse both the commitment and recommitment orders.18

By the Court.—Orders reversed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

 

18

 An order for involuntary medication and treatment requires the existence of a valid 

commitment order. See WIS. STAT. § 51.61(1)(g)3. Our reversal of the commitment and 

recommitment orders then also mandates the reversal of the orders for involuntary medication 

and treatment because a medication order is tied to the existence of a final commitment order.