This opinion will be unpublished and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:  Harvey Dudley.


Filed September 24, 2002

Reversed and Remanded

Kalitowski, Judge


Hennepin County District Court

File No. P80160548


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


Warren J. Maas, 7964 Brooklyn Blvd., #107, Brooklyn Park, MN 55445 (for respondent Harvey Dudley)


            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges respondent Harvey Dudley’s commitment as mentally ill, arguing that because his conduct constituted an overt act causing or attempting to cause serious physical harm to another, he should have been committed as mentally ill and dangerous.  We agree and reverse and remand.


            The district court’s findings of fact will be affirmed unless clearly erroneous.  Minn. R. Civ. P. 52.01.  But whether the evidence is sufficient to prove that a person committed an overt act causing or attempting to cause serious physical harm to another is a question of law that the appellate court reviews de novo.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

            There is no dispute that Dudley suffers from paranoid schizophrenia and meets the standards at least for commitment as mentally ill under Minn. Stat. § 253B.02, subd. 13(a) (2000).  The question at issue here is whether the act he committed showed the degree of dangerousness required for commitment as mentally ill and dangerous.  See In re Kottke, 433 N.W.2d 881, 883 (Minn. 1988) (addressing same question in appeal from commitment as mentally ill and dangerous).  Commitment as mentally ill requires a showing of “a substantial likelihood of physical harm to self or others,” as demonstrated by a failure to obtain necessities or “a recent attempt or threat to physically harm self or others.  Minn. Stat. § 253B.02, subd. 13(a) (emphasis added).  Commitment as mentally ill and dangerous requires a showing of “a clear danger to the safety of others,” as demonstrated by a showing that “the person has engaged in an overt act causing or attempting to cause serious physical harm to another.”  Minn. Stat. § 253B.02, subd. 17(b) (2000) (emphasis added).

            The supreme court has compared the “physical harm” and the “serious physical harm” standards and cautioned that courts must pay due respect to the distinction between the two.  Kottke, 433 N.W.2d at 884.  Examining the facts in Kottke, the court held that when the appellant assaulted two men with fists, the conduct “neither inflicted nor was intended to inflict the serious physical harm of the type contemplated by the [commitment as mentally ill and dangerous] statute.”  Id. at 884.  But the court explained that murder and even less violent conduct that did not amount to “mayhem or murder” would meet the mentally ill and dangerous standard.  Id.

            The supreme court has also emphasized that neither the person’s intent nor the outcome of the action is determinative.  In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989).  A mentally ill person who deliberately aims and fires a shotgun at another or who drives a car into a crowd of people on a residential street

                        is equally dangerous to the public whether the actor had an intention to cause harm and whether the actor had the capacity to form an intention to cause harm or even to recognize its potential for causing serious harm.


Id. at 195.  If the person presents “a clear danger to others” and has shown, in relevant part, by clear and convincing evidence “that the person has engaged in an overt dangerous act capable of causing serious physical harm to another,” the statutory requirements have been met.  Id. at 195-96.

            Here, the undisputed facts indicate that on October 28, 2001, a bus driver stopped to pick up Dudley at an intersection in downtown Minneapolis.  The driver was about to open the door, when he saw Dudley reach under a pile of belongings on a bench, pull out a gun, and point it towards the door.  As the driver opened the door, Dudley pointed the gun directly at him.  The driver described the weapon as a large silver nine-millimeter semi-automatic gun (later identified as a BB gun that was a replica of a nine-millimeter, semi-automatic pistol).  Fearing for his life and believing Dudley was going to shoot him, the driver closed the door and drove through a red light to escape.

            Dudley was arrested and charged with the felony of interference with a transit operator.  He was found incompetent to proceed to trial on the felony charge and a petition for civil commitment was filed pursuant to Minn. R. Crim. P. 20.01.  A hearing was held on Dudley’s commitment.  Both the court-appointed examiner and Dudley’s treating psychiatrist testified that Dudley met the standards for commitment as mentally ill and dangerous.

            The district court found Dudley suffered from paranoid schizophrenia.  The court determined he posed a substantial likelihood of harm to himself or others, citing his highly impulsive behavior, his use of alcohol, which exacerbates his symptoms of mental illness and interferes with his psychiatric medications, and his tendency to leave the community-based residential facilities at which he is placed.  The court found that Dudley puts himself in situations in which he is vulnerable to retaliation or defensive behaviors as a consequence of his bizarre and provocative conduct, such as the firearm incident, and that he was unable to provide himself with necessities of food, clothing, shelter, and medical care.  But the district court concluded that Dudley did not attempt to cause serious physical harm to another because his gun was not loaded or fired and because it was the reaction of the bus driver, not Dudley’s actions, that put others in danger.  We disagree.

As discussed above, it is immaterial whether Dudley intended to cause serious physical harm to another and likewise, the outcome of Dudley’s action is not determinative.  Jasmer, 447 N.W.2d at 195.  Moreover, the district court erred as a matter of law in ruling that it was the bus driver’s reaction, and not Dudley’s act, that was “capable of causing serious physical harm.”  See id. at 195-96.  Rather than focusing on the bus driver’s action, the appropriate focus is on Dudley’s overt act of pointing what appeared to be a gun toward the driver of a public bus in downtown Minneapolis.  Just as a mentally ill person’s action of shooting towards people or driving into a crowded street are “capable of causing serious physical harm to another,” so too was Dudley’s action.  Id.  We conclude that on these undisputed facts, Dudley’s actions constituted an overt act causing or attempting to cause serious physical harm to another.  We therefore reverse and remand to the district court with instructions to order that respondent be committed as mentally ill and dangerous.

            Reversed and remanded.