State v. N. A. T.State v. N. A. T.
BACKGROUND
¶2 Early one January morning, Milwaukee police officers were dispatched to Fiserv Forum on a “trouble with subject” call. They spoke to a security guard who told police that Natalie was trespassing and refused to leave. Officers asked Natalie if she wаnted to be brought to a shelter, and she responded affirmatively. However, Natalie would not give her name, and after she was escorted off the property, she attempted to reenter the building through another door. One of the officers grabbed the door and Natalie tried to close it on him.
¶3 Natalie was arrested and placed in a squad car. The officer who had scuffled with Natalie attempted to buckle her into the car. While he was doing so, Natalie spit onto the left side of his face. Based on these events, Natalie was charged with single counts of discharging bodily fluids at a public safety worker, a Class I felony, see
¶4 The circuit court ordered a competency evaluation, which was performed by psychologist Steven Steinert, Ph.D. Natalie declined to participate in the clinical interview but, based on observations and a prior examination, Steinert concluded she wаs mentally ill and lacked substantial mental capacity to understand the proceedings and assist in her defense. The court found her incompetent, suspended the criminal proceedings, and ordered her committed to the Department of Health Services (DHS).
¶5 Upon admission to Mendota Mental Health Institute, Natalie presented with severe untreated symptoms of psychosis and refused medication. Shortly afterwards, DHS, by psychiatrist Dr. Colleen Considine, moved for the administration of involuntary medication to restore Natalie to competency. Considine noted Natalie‘s history of schizophrenia and her consistent refusal of
¶6 Considine testified that since 2024, Natalie had been treated at the V.A. hospital several times with symptoms of psychosis and suicidal ideations. Considine described a previous involuntary commitment in 2025 that was “dropped by the county.” Natalie‘s symptoms appear to have worsened. Considine stated Natalie presented with “very, very severe” symptoms of untreated mental illness, including extreme thought and behavioral disorganization, paranoia, and delusional ideations. For example, Natalie cannot carry on a conversation of any length without becoming agitated, and she “will smear feces on herself and on the walls of her room and believe that she‘s cleaning the room. She is unaware that she‘s [i]n a hospital.”
¶7 Considine discussеd her several unsuccessful attempts to provide information to Natalie regarding medication to treat her mental illness. Natalie consistently refused medication, including on the night before the hearing, when Natalie stated she was in an abandoned building and did not need medication. At trial, Considine described the proposed course of treatment and the use of medications, which included medication that Mendota had administered involuntarily on an emergency basis in response to Natalie‘s mоst severe episodes.
¶8 Natalie briefly attended the hearing via Zoom, but the circuit court had to mute her microphone after she repeatedly disrupted the proceedings. Shortly after the hearing started, Natalie became extremely agitated and began throwing toilet water and threatening staff, prompting Mendota to terminate the Zoom connection. Following the evidentiary portion of the hearing, the court, after a thorough discussion of the evidence and relevant legal standards, concluded
¶9 Natalie‘s appeal of the involuntary medication order focuses on her allegation that the State has failed to satisfy the first factor in Sell v. United States, 539 U.S. 166 (2003), the seminal case on the constitutionality of forced medication. The first factor is the “threshold question” of whether an important governmental interest is at stake. State v. J.D.B., 2026 WI 5, ¶20, 419 Wis. 2d 383, 31 N.W.3d 314, petition for cert. filed, No. 25-7497 (U.S. May 22, 2026). Sell made clear that the government has an important interest in “bringing to trial an individual accused of a serious crime,” whether that crime is against a person or against property. Sell, 539 U.S. at 180.
¶10 As it pertains to the first Sell factor, the circuit court observed that “there is no way to tell what a serious crime is. That is, it‘s not defined in Sell; it‘s not defined in any of the Wisconsin case law.” The court then surveyed various ways by which to measure what is a “serious crime.” The court first discussed statutory definitions of “serious crimes” for other purposes, including the bond statute. See
¶11 Next, the circuit court considered assessing seriousness using the maximum penalties for the crimes. The court surveyed the cases regarding the effect of maximum penalties on the Sell analysis, remarking that the case law “tells us … that the longer the maximum penalty, the more likely it is that something would be viewed as serious for involuntary medication purposes.” The court observed that the aggregate consecutive five-year maximum for Natalie‘s
¶12 Finally, the circuit court looked to the facts of Natalie‘s individual case. Evaluating Natalie‘s conduct chronologically, the court concluded that if the altercation had ended with Natalie attempting to close the door on the officer and hitting him, “the State would not have a sufficient interest in рrosecuting the crime to overcome [Natalie‘s] interest in bodily integrity.” However, Natalie‘s further escalation by spitting on the officer elevated the State‘s interest in prosecution. “Until that moment,” the court deemed the State‘s interest “very debatable,” but once the spitting occurred, the court determined the matter became serious enough for the State to have an overriding interest in prosecution. Taking guidance from United States v. Boima, 114 F.4th 69 (2d Cir. 2024), cert. denied, 145 S. Ct. 1099 (2025), the court concluded that the State had satisfied the first Sell factor by clear and convincing evidence.
¶13 Nataliе obtained a statutory stay of the order pursuant to
DISCUSSION
¶14 A defendant “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221-22 (1990). That liberty interest can be overcome only upon the government demonstrating there exists both an overriding and essential state interest and a
¶15 In Sell, the Supreme Court established a fоur-factor test for determining whether the involuntary administration of medication is constitutionally permissible. Id., 539 U.S. at 179. The Court recognized that, under those factors, the instances in which the government may involuntarily administer medication may be rare. Id. at 180. The only factor at issue in this case (and the only factor we discuss) is the “threshold question” of whether an important governmental interest is at stake.3 J.D.B., 419 Wis. 2d 383, ¶20.
¶16 Sell established that the government has an important interest in “bringing to trial an individual accused of a serious crime.” Sell, 539 U.S. at 180. Courts, however, must also consider the facts of each case when evaluating the governmental interest in prosecution, including any special circumstances attendant to the individual‘s situation. Id. “The first Sell factor is not a two-part test; it is a single unified question.” J.D.B., 419 Wis. 2d 383, ¶14. We independently determine whether a crime is serious and whether any mitigating special circumstances diminish the State‘s interest in prosecution, but in doing so we rely on “the specific factual circumstances of the defendant‘s situation as found by the circuit court[.]” Id., ¶21.
¶17 Consistent with the circuit court‘s observation, this court has recently noted that “there are few cases in Wisconsin outlining or even addressing what factors a court should consider when looking at the first Sell factor.”4 State v. S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, unpublished slip op., ¶23 (WI App July 28, 2026).5 In that decision, the court identified a number of factors that it deemed relevant, “with the intent that circuit courts may find this discussion persuasive for future determinations under the first Sell factor.” S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, ¶23.6 Those factors included whether there was a “legislative pronouncement regarding crimes it deems serious,” id., ¶27, the extent of criminal exposure in nature, scope and penalty, id., ¶¶28-32, and the special circumstances attendant to the facts of the case, id., ¶¶33-38. In all, the S.J.S. court concluded that the State did not have an important interest in bringing the defendant to trial on charges that included possession of methamphetamine,
¶18 The parties here raise some of the same factors the court considered in S.J.S. Natalie contends “Wisconsin courts need not fashion parameters for measuring the seriousness of crimes because the legislature has already defined the phrases ‘serious crime’ and ‘serious felony’ in multiple contexts.” Natalie contends the “best fit” for our purposes is the bond statute,
¶19 The State counters that the patchwork of statues defining a “serious crime” for other purposes should not control whether a crime is “serious” for purposes of the involuntary administration of medication under
¶20 Still, as the circuit court recognized, the fact that the legislature does not regard Natalie‘s alleged crimes as “serious” for any existing purpose is somewhat informative and weighs against a finding that the government has an overriding interest in prosecuting Natalie. See S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, ¶27 (“[A] legislative pronouncement regarding crimes it deems seriоus is certainly a factor we may reasonably consider, and we conclude that fact weighs against a conclusion that [the defendant] was charged with serious crimes.“).
¶21 The State generally argues that the result in this case is dictated by the potential punishments to which Natalie has exposure. The State discusses the maximum punishments for the crimes Natalie is charged with and then compares those penalties with two other cases involving “serious crimes,” namely J.D.B. and B.M.T. The State concludes by asking this court tо adopt a categorical rule that a crime is sufficiently “serious” under Sell if it “carries a potential punishment of six months or more,” which is the amount of criminal exposure that gives rise to a due process right to a jury trial. See Baldwin v. New York, 399 U.S. 66, 68-69 (1970).
¶22 We decline to adopt a categorical six-month-maximum rule to determine whether a crime is “serious” under Sell. Such a rule ignores Sell‘s command to “consider the facts of the individual case in evaluating the Government‘s interest in prosecution.” Sell, 539 U.S. at 180. The State also ignores that the Supreme Court set a low threshold for “petty” crimes for Sixth Amendment purposes to protect the individual from government oppression. See
¶23 The State‘s comparison of maximum penalties in other cases to Natalie‘s criminal exposure is similarly unavailing. The State observes that Natalie‘s alleged crimes—a single Class I felony (the lowest category) and two Class A misdemeanors—are punishable by an aggregate prison sentence of five yeаrs if ordered to be served consecutively. See
¶24 In attempting to justify its categorical approach, the State notes that Natalie‘s potential five-year criminal exposure is well in excess of the six-month rule some federal courts have adopted. See Oregon v. Lopes, 322 P.3d 512, 525 (Or. 2014) (citing Texas and Virginia district court decisions). But the State glosses over Lopes‘s observation that federal circuit courts generally have concluded that only crimes punishable by five or more years in prison are “serious” under Sell. Lopes, 322 P.3d at 525. And of the federal authorities Lopes relied on for that proposition, only one involved a five-year maximum, and the defendant there did not dispute that he was charged with a serious crime. See United States v. Nicklas, 623 F.3d 1175, 1178 (8th Cir. 2010). The other cases,
¶25 S.J.S. is instructive, too, when it comes to maximum penalties, and counsels against a determination that Natalie‘s alleged crimes are “serious.” The defendant in that case was charged in two criminal complaints with six misdemeanors (two counts of disorderly conduct, two counts of obstructing an officer, a single count of possession of drug paraphernalia, and a single count of bail jumping) and a Class I felony, possession of methamphetamine. S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, ¶3. Those charges exposed the dеfendant to three years and six months’ imprisonment if served concurrently, or six years and four months’ imprisonment if ordered to be served consecutively. Id., ¶31 & n.9. The court was not persuaded that “these penalties, individually or collectively, [are] significant enough to override [the defendant]‘s liberty interest against forced medication.” Id., ¶31. We reach a similar conclusion here, where Natalie faces the same criminal exposure as the defendant in S.J.S. if sentenced concurrently and lesser total consecutive time.
¶26 We also consider the nature of the crimes Natalie is charged with. Although Natalie argues her charges each involve nonviolent offenses, it is undisputed the underlying conduct involves physical resistance to arrest and spitting at an officer. Undoubtedly, public officials with law enforcement responsibilities have the same “basic human need for security” as other citizens. See Sell, 539 U.S. at 180. Yet, balanced against Natalie‘s liberty interest in avoiding the forcible administration of medication, undеr the circumstances here we conclude the State‘s interest in the application of criminal law to Natalie‘s conduct is not paramount.
¶27 While Natalie‘s conduct included a physical element that was not present in S.J.S., that alone is not enough to elevate the seriousness of any of the offenses under these facts. As to the alleged violation of
¶28 As contrary authority, the State relies on Boima, which featured more egregious facts and a more severe alleged offense. The defendant, while incarcerated at a federal detention facility, was combative with another inmate, physically resisted when officers attempted to move him to another unit, and spat blood and saliva at the officers as they left the unit. Boima, 114 F.4th at 72. Boima was charged with assaulting federal officers in the performance of their official duties, a crime punishable by up to eight years in prison with a guideline range of around four to five years. Id. at 76-77. As set forth above, we are not persuaded that Natalie‘s conduct, either in nature or penalty, was the equivalent of Boima‘s. And, in any event, Boima did not hold that the defendant‘s alleged offense was a “serious crime” under Sell; instead, the court remanded the matter because the district court had wholly failed to make such a determination in the first instance. Boima, 114 F.4th at 76.
¶29 J.D.B. and B.M.T. do not point us toward a conclusion that the offenses here, individually or collectively, qualify as “serious crimes.” In J.D.B., the defendant did not dispute that he was charged with a serious crime, which was battery to a law enforcement officer, a Class H felony. J.D.B., 419 Wis. 2d 383, ¶22. J.D.B. had threatened to get a gun and kill everyone at his home, and he also threatened responding officers and punched one of them in the face. Id., ¶4. Given the absence of an adversarial posture on that issue, J.D.B. is of limited usefulness here; the primary discussion centered around whether there were
¶30 B.M.T. is also of limited value to the State, becаuse the defendant there also conceded that he had been charged with at least two serious crimes, battery by a prisoner, a Class H felony, and substantial battery as an act of domestic abuse, a Class I felony. B.M.T., 419 Wis. 2d 330, ¶29. Observing that the defendant was facing a collective twenty charges, nine of which were felonies, and that alleged violence had permeated B.M.T.‘s criminal history, we “accept[ed] B.M.T.‘s concession that, as a general matter, the State has demonstrated an importаnt interest in bringing B.M.T. to trial,” and we rejected B.M.T.‘s assertion that the possibility of a future
¶31 Here, by contrast, the first Sell factor is in a contested adversarial posture, and we conclude the State has not met its burden of demonstrating, by clear and convincing evidence, an important interest in bringing Natalie to trial for her alleged crimes. As set forth above, there is no indication the legislature considered Natalie‘s alleged crimes “serious” for any purpose, the potential penalties for those crimes are relatively low, and the nature of the crimes Natalie is charged with do not support an overriding governmental interest in prosecution. In short, Natalie‘s alleged crimes are not, in nature, scope, or penalty, sufficiently serious to overcome Natalie‘s due process liberty interest in avoiding the
By the Court.—Order reversed.
This opinion will not be published. See