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.
August 19, 2026
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. 2026AP1248-CR Cir. Ct. No. 2026CF535
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
N.A.T.,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Reversed.
Before Colón, P.J., Geenen, and Petrashek, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Natalie1 appeals an order authorizing the involuntary administration of medication to restore her to competency in the underlying criminal proceeding. See WIS. STAT. § 971.14(5)(am). Natalie argues the State failed to demonstrate by clear and convincing evidence that her prosecution implicates important governmental interests that warrant the forcible administration of psychotropic medication. We agree that under the circumstances here, the State has not demonstrated an important interest in bringing Natalie to trial on charges relating to her resisting being taken into custody and spitting on a police officer. We therefore reverse the involuntary medication order.
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 wanted 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.
1 Pursuant to the policy underlying WIS. STAT. RULE 809.109(6), we use a pseudonym to refer to the person subject to the WIS. STAT. § 971.14 order. All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
Cases appealed under WIS. STAT. RULE 809.109 “shall be given preference and shall be taken in an order that ensures that a decision is issued within 30 days after the filing of the appellant’s reply brief[.]” RULE 809.109(5)(d). Conflicts in this court’s calendar have resulted in a delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in this appeal. See WIS. STAT. RULE 809.82(2)(a). Accordingly, we extend the deadline to the date this decision is issued.
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Natalie hit the officer, then “pulled away and actively resisted being taken into custody.”
¶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 WIS. STAT. § 941.375(2); obstructing an officer, a Class A misdemeanor, see WIS. STAT. § 946.41(1); and misdemeanor bail jumping, see WIS. STAT. § 946.49(1)(a).2
¶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 was 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
2 The criminal complaint alleged that Natalie had an open Milwaukee County Circuit Court case for obstructing an officer and disorderly conduct and that the current charges were a violation of her bail agreement in that case.
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antipsychotic medication. The circuit court held a hearing on the involuntary medication motion; Considine was the sole witness.
¶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 discussed 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 most 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
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the involuntary administration of medication was both statutorily and constitutionally appropriate.
¶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 WIS. STAT. § 969.08(10)(b). It determined that if it was to use legislative assessments as a guide, that “measure would suggest that these crimes are not serious.”
¶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
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alleged crimes was “more than a little [criminal exposure], but not the most serious crimes that would be available.” It determined that the maximum penalty was “largely neutral,” “maybe leaning toward not serious.”
¶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 prosecuting 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 Natalie obtained a statutory stay of the order pursuant to WIS. STAT.
RULE 809.109(7)(b)1. We subsequently denied the motion to continue the stay. Natalie appeals the involuntary medication order.
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
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medically appropriate treatment plan. See Riggins v. Nevada, 504 U.S. 127, 135 (1992).
¶15 In Sell, the Supreme Court established a four-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.
3 “With no sufficiently important interest in prosecution, the other factors, which are largely aimed at ensuring that the interest will be appropriately furthered, logically need not be addressed.” State v. J.D.B., 2026 WI 5, ¶20, 419 Wis. 2d 383, 31 N.W.3d 314. Natalie does not challenge the circuit court’s finding, required under WIS. STAT. § 971.14(3)(dm) and (4)(b), that she was incompetent to refuse medication or treatment, nor does she challenge the remaining three factors under Sell v. United States, 539 U.S. 166 (2003), concerning the medical necessity and appropriateness of the proposed treatment plan.
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¶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,
4 J.D.B., our supreme court’s most recent pronouncement on this issue, offered little clarity, as the parties agreed in that case that the defendant had been charged with a serious crime—felony battery of a law enforcement officer. Id., 419 Wis. 2d 383, ¶22.
5 State v. S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, unpublished slip op. (WI App July 28, 2026), was decided after the circuit court’s involuntary medication order in this case, which was dated May 13, 2026. Accordingly, the circuit court’s analysis did not take into account that decision, which we cite for its persuasive value. See WIS. STAT. RULE 809.23(3)(b).
We note that despite S.J.S. being clearly pertinent to the issues in this case, the parties were not required to (and did not) provide a notice of supplemental authority under WIS. STAT. RULE 809.19(10), which treats a Wisconsin Court of Appeals case as being “decided” on the date an order for publication is issued under WIS. STAT. RULE 809.23(2). Because of the recentness of the S.J.S. decision, it has not yet been considered for publication.
6 The lack of guidance in controlling case law prompted this court to encourage our supreme court to grant the petition for review currently pending in State v. B.M.T., 2025 WI App 77, 419 Wis. 2d 330, 30 N.W.3d 516, petition for review filed (Dec. 22, 2025). See S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, ¶23 n.6. This panel likewise believes the bench and bar would benefit from additional guidance on the first Sell factor, and we also encourage the Wisconsin Supreme Court to grant review in B.M.T.
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disorderly conduct, obstructing an officer, and possession of drug paraphernalia. Id., ¶¶3, 39.
¶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, WIS. STAT. § 969.08(10)(b), because it is the “most expansive and because holding an individual without bond best mirrors the competing interests in administering involuntary medication.” Natalie notes that her alleged crimes “are not listed as serious felonies in any Wisconsin 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 WIS. STAT. § 971.14. We agree that we find little guidance in the existing statutes, none of which were enacted for the specific legislative purpose of identifying when the government’s interest in prosecution overcomes a defendant’s liberty interest in avoiding forcible medication.7 Additionally, State v. B.M.T., 2025 WI App 77, ¶31 & n.3, 419 Wis. 2d 330, 30 N.W.3d 516, petition for review filed (Dec. 22, 2025), appears to foreclose Natalie’s categorical argument, insofar as it recognized
7 Specifically as to WIS. STAT. § 969.08(10)(b), the circuit court expressed concern with the limited scope of the bond statute, highlighting that possession of child pornography is serious enough that the legislature had prescribed a three-year mandatory minimum prison sentence, yet it is not identified as a “serious crime” by that statute.
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that “a ‘serious crime’ under Sell cannot depend on the definition adopted by any one existing statute.”
¶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 serious 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 to 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
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Baldwin, 399 U.S. at 72. Here, the State turns that rationale on its head and seeks to use the Sixth Amendment shield as a sword against a defendant, without regard to the specific liberty interests at stake when it comes to the forcible administration of medication. Finally, when adopting the six-month rule, the Supreme Court focused on the historical practices of states in determining which offenses warranted trial by jury. See id. at 71-73. The State offers no similar historical survey or analysis here regarding state practices in forcibly administering medication to restore criminal defendants to competency.
¶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 years if ordered to be served consecutively. See WIS. STAT. §§ 939.50(3)(i) (setting the maximum penalty for a Class I felony at three years and six months’ imprisonment); 939.51(3)(a) (setting the maximum penalty for a Class A misdemeanor at nine months’ jail time).
¶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,
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United States v. Valenzuela-Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007), and United States v. White, 620 F.3d 401, 411 (4th Cir. 2010), involved maximum possible sentences of twenty years and ten years, respectively. 8 Contrary to the State’s arguments, many courts do not appear to regard a potential five-year sentence as “serious” for Sell purposes, or at least have not clearly held as such.
¶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 defendant 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.
8 In United States v. Valenzuela-Puentes, 479 F.3d 1220 (10th Cir. 2007), the court relied not only on the twenty-year maximum but the “likely guideline sentence of six to eight years” (as well as the defendant’s long criminal history) when deeming the crime serious. Id. at 1226. While Wisconsin does not have sentencing guidelines, Natalie’s criminal exposure is minimal even at the maximum penalties for her alleged crimes. Two of the five years would not be served in prison, as the period of initial confinement for a Class I felony is 1.5 years. See WIS. STAT. § 973.01(2)(b)9. As a practical matter, then, Natalie is facing much less prison time than the State suggests. See S.J.S., Nos. 2025AP754-CR and 2025AP755-CR, ¶31 (evaluating a Class I felony for Sell purposes based on the attendant period of initial confinement).
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¶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, under 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 WIS. STAT. § 941.375(2), the statute broadly proscribes expelling “blood, semen, vomit, saliva, urine, feces, or other bodily substance” at or toward a public safety worker. Of the bodily fluids identified by the statute, saliva is almost certainly the least offensive. Spitting is relatively common in police use-of-force incidents and “is generally considered more of a nuisance than a truly violent act,” but there are exceptions when spitting exposes an officer to an infectious disease. Jared Strote et al., Prevalence and Correlates of Spitting on Police Officers: New Risks in the COVID Era, 322 FORENSIC SCI. INT’L, May 2021, at 110747.9 Here, there is no indication Natalie’s saliva presented a risk of infectious disease, that the law enforcement officer contracted a disease, or that any of Natalie’s conduct injured—or even presented a substantial risk of injury to—the officer. See State v. T.A.W.,
9 https://www.sciencedirect.com/science/article/pii/S0379073821000670 (last visited Aug. 18, 2026).
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No. 2025AP437-CR, unpublished slip op., ¶¶19-20 (WI App June 3, 2025) (concluding that resisting an officer causing soft tissue injury was sufficiently serious where the allegations included that the defendant had reached for the officer’s taser).
¶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
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special circumstances attendant to J.D.B.’s case that diminished the government’s interest in prosecution. See id., ¶¶24-27.
¶30 B.M.T. is also of limited value to the State, because 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 important interest in bringing B.M.T. to trial,” and we rejected B.M.T.’s assertion that the possibility of a future WIS. STAT. ch. 51 commitment diminished the State’s interest. B.M.T., 419 Wis. 2d 330, ¶¶36-41.
¶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
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involuntary administration of medication. We therefore reverse the involuntary medication order.10
By the Court.—Order reversed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
10 Practically speaking, our decision today leaves Natalie subject to a commitment order based upon the circuit court’s finding of incompetency; we reverse only that portion of the order authorizing the involuntary administration of medication. The commitment order expires as set forth in WIS. STAT. § 971.14(5)(a)1., but civil commitment proceedings under WIS. STAT. ch. 51 may be available if Natalie meets the criteria set forth in that chapter.