This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).





In the Matter of the Civil Commitment of:

Miguel Olivares-Marquez.


Filed January 8, 2002


Gordon W. Shumaker, Judge

Dissenting, Huspeni, Judge*


Hennepin County District Court

File No.P80160226



Allan R. Poncin, 702 Towle Building, 330 Second Avenue South, Minneapolis, MN 55401 (for appellant)


Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant Miguel Olivares-Marquez challenges the district court’s commitment order.  He contends the record lacks support for the finding that he is a mentally ill person under the civil commitment act because there is no evidence that he made a recent threat to physically harm others.  We reverse.


On June 1, 2001, the district court found that appellant Miguel Olivares‑Marquez is mentally ill and in need of judicial commitment, and ordered his dual commitment to two treatment facilities.

The court determined that Olivares‑Marquez is mentally ill, having been

diagnosed with Schizoaffective disorder, manic psychotic and paranoid, which is a substantial psychiatric disorder of his thought, mood, and perception.  This disorder grossly impairs [his] judgment, behavior, capacity to recognize reality, capacity to reason, and capacity to understand.

In summary, the court found that Olivares‑Marquez “is enmeshed in a persecutory delusion” that certain people want to kill him.  He has changed addresses in four states to avoid these people.  One time he thought he saw two men with guns outside his window.  He frequently contacts the police for protection.  During three such contacts, the Minneapolis police brought him to the Hennepin County Medical Center Crisis Intervention Center, where he was examined and treated with neuroleptic medications.  The last hospitalization occurred on May 18, 2001, and led to a petition for commitment.

The court found that Olivares‑Marquez is losing faith in the police and that he asked about obtaining a permit to carry a gun, which he would use to hold his assailants for the police.  He did own a gun in 1992, but he sold it.  He denies that he is mentally ill, refuses to take medications, and admits to hearing the voice of Our Lady of Guadalupe, who tells him what to do to keep safe.

Noting that in the hospital Olivares‑Marquez had been irritable and hostile and had to be forcibly restrained; that he intends to arm himself for protection against his enemies; and his posture and stance have been seen by others as threatening, the district court concluded that Olivares‑Marquez “poses a substantial likelihood of harm to himself and others.”

Olivares‑Marquez does not dispute most of the facts found by the district court, and most are supported by the record.  Olivares‑Marquez does suffer from paranoid schizophrenia and persecutory delusions.  He was antagonistic, agitated, and anxious upon his May 18, 2001, hospital admission.  After receiving medications he became calm, medication‑compliant, and more organized in his thinking, albeit still delusional.

The two experts who testified at his commitment hearing, his psychiatric nurse and a court‑appointed examining psychologist, admitted that they were not aware that Olivares‑Marquez ever threatened to harm anyone, with or without a gun.  His nurse testified that she was unaware of any assaultive behavior by Olivares‑Marquez.

Olivares‑Marquez testified that once he was threatened by a gang member, and he responded by telling the assailant that he would call the police.  His responses to his perceived threats from the people he believes are trying to kill him have been to change his address and to go to the police.  He testified that he asked about getting a gun permit but was unable to learn the procedure for doing so.  He stated that he has no plan to obtain a gun and that if he had a family he would protect them, but not by illegal means.

The examining psychologist testified that Olivares‑Marquez’s efforts to obtain a gun permit is a threat, and that his mental condition is such that he poses a danger of harm to himself or others.

On appeal, Olivares‑Marquez challenges the sufficiency of the evidence to sustain the court’s commitment order.


The district court can order the commitment of a person to a suitable treatment facility “[i]f the court finds by clear and convincing evidence” that the person is mentally ill. Minn. Stat. § 253B.09, subd. 1 (2000).

A “mentally ill person” is someone who has an organic disorder of the brain or  substantial psychiatric disorder “which is manifested by instances of grossly disturbed behavior or faulty perceptions,” and who

poses a substantial likelihood of physical harm to self or others as demonstrated by * * * a recent attempt or threat to physically harm self or others.


Minn. Stat § 253B.02, subd. 13(2) (2000).

Our review of a judicial commitment is limited to determining whether the district court complied with the civil commitment act and whether the commitment was “justified by findings based upon evidence” submitted at the hearing.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  The district court’s findings will not be overturned unless clearly erroneous, and “due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.”  See  Minn. R. Civ. P. 52.01; In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  We review the record in the light most favorable to the district court’s decision, but whether the evidence is sufficient to meet the standard for commitment presents a question of law, reviewed de novo.  In re Knops, 536 N.W.2d at 620.  On appeal this court should not reweigh the evidence but determine if the evidence as a whole sustains the district court’s findings.  In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).

The record clearly establishes that Olivares‑Marquez is afflicted with a mental illness.  However, he argues that the district court erred in concluding that he poses a substantial likelihood of physical harm to others.  He contends that there is no evidence that he has attempted or threatened to physically harm another person.

The law does not require that a person with a mental illness actually inflict physical harm before he can be committed for treatment.  In re Terra, 412 N.W.2d 325, 328 (Minn. App. 1987).  But the law does require an overt act of some sort that reasonably can be interpreted as a threat or an attempt to harm.  Enberg v. Bonde, 331 N.W.2d 731, 736‑738 (Minn. 1983).  Speculation as to the possibility that the mentally ill person might attempt or threaten physical harm in the future is not sufficient to satisfy the commitment statute.  Id.  See also In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995)

Until he received the medication, Olivares‑Marquez behaved in an uncooperative, hostile, and demanding manner in the hospital on May 18, 2001, and hospital staff placed him in a four‑point restraint.  Despite that behavior, the nurse who cared for him during several shifts testified that Olivares‑Marquez never attempted or threatened to physically harm anyone.  Similarly, the examining psychologist was unable to identify an example of assaultive or threatening behavior by Olivares‑Marquez and thus concluded that his inquiry about a gun permit was per se a threat.

Although we appreciate the concern that might arise over the possible future conduct of a paranoid schizophrenic who has delusions of persecution, thus far that conduct remains solely in the realm of speculation.  A mere inquiry about a gun permit, with no evidence of any further effort to obtain a gun, cannot reasonably be interpreted as a recent threat of physical harm.  Furthermore, Olivares‑Marquez’s history is that, despite his delusions of persecution, he has never been confrontational with those he perceives as wanting to harm him.  Rather, he has always chosen avoidance as his response to the perceived threats by changing his address and going to the police for protection.

We hold that the evidence does not clearly and convincingly show that Olivares‑Marquez’s conduct satisfies the statutory prerequisite of “a recent attempt or threat to physically harm self or others.”  Minn. Stat. § 253B.02, subd. 13(2).  Therefore, we respectfully conclude that the district court erred in ordering this commitment.





HUSPENI, Judge (dissenting)


I respectfully dissent.  As noted by the majority, the record “clearly establishes that Olivares-Marquez is afflicted with a mental illness.”  The contested issue is whether his conduct constitutes a recent attempt or threat to physically harm self or others. 

The court noted that


[Olivares-Marquez] appears to be losing faith in the ability of the police to protect him.  He believes they are minimizing his legitimate concerns for his own safety from the far reaching grasp of his conspiring enemies.  He has asked for their assistance to obtain a permit to carry a gun which he tells the Court he will use to subdue his assailants until the police arrive and he proves to them that his stalkers really exist.


Further, it is clear that the district court accepted as credible the testimony of the examining psychologist that Olivares-Marquez’s efforts to obtain a gun permit constituted a threat, and that his mental condition is such that he poses a danger of harm to himself or others.  Based on the evidence of conduct, on the conclusion of the expert, and on the Minnesota caselaw that recognizes that courts need not be faced with actual infliction of injury before commitment for treatment can be effected, I am unable to conclude that the district court clearly erred.  I would affirm.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.