Sept. 21, 2011 – Wisconsin lawmakers are currently considering legislation that would change Wisconsin’s self-defense law in the context of home intrusions.
Nearly 30 states have enacted some form of so-called “castle doctrine” legislation, which would give homeowners and residents greater protections to use deadly or substantial force against someone who unlawfully and forcibly enters their residence.
Proponents, such as the National Rifle Association (NRA), argue that such legislation is necessary to guarantee citizens the unfettered right to defend themselves in their homes.
But opponents, like the State Bar of Wisconsin’s Criminal Law Section, warn the proposed castle doctrine legislation could create unintended consequences, given the nuanced workings of presumptions and evidence law that are specific to Wisconsin.
“It could actually give a presumption in favor of a murderer,” said Marquette Law School Professor Gregory O’Meara, who testified before the Wisconsin Assembly’s Judiciary and Ethics Committee on AB 69 in May. The Wisconsin Senate’s companion bill is SB 79.
O’Meara is immediate past chair of the State Bar’s Criminal Law Section, which is made up approximately 600 judges, prosecutors, criminal defense lawyers, and academics. The section voted unanimously to oppose the legislation, which was introduced in the Assembly in March.
Current law
Currently, it is not reasonable to use force intended or likely to cause death or great bodily (substantial) harm for the sole purpose of defending property. Wis. Stat. section 939.49(1). Deadly force is only justified if a person reasonably believes such force is necessary to defend against imminent death or substantial harm. Section 939.48(1).
When someone asserts a self-defense claim to justify the killing of another person, the state has the burden to prove the killing was unreasonable (if the state believes that to be the case). That is, the state must show the force used was not necessary, and neither substantial harm nor death was imminent.
What is reasonable depends on the circumstances as they existed at the time of the event, and according to what a person of ordinary intelligence would have believed in the actor’s shoes.
The Criminal Law Section’s opposition centers in part on the law of mistake, which holds that an actor’s belief may be reasonable even if that belief was mistaken. Section 939.43. Thus, a person who kills another person under the mistaken belief that deadly force was necessary to thwart an imminent deadly attack could still be found to have acted reasonably.
Proposed law
Under proposed legislation, a court must presume a resident was justified in killing a person, regardless of whether the resident reasonably believes the force is necessary to defend against imminent death or substantial harm, if certain conditions exist.
The presumption applies if a person entered or was in the process of entering the residence “unlawfully” and by force, the resident was home, and the resident knew or reasonably believed that an unlawful and forcible entry was occurring or had occurred.
That is, the resident would benefit from an instruction to the jury that use of deadly or substantial force is presumed “reasonable” if the jury finds that someone unlawfully and forcibly entered or attempted to enter the residence when the resident is inside.
But O’Meara points out that under Wisconsin law, the presumption does not disappear, even in the face of evidence to the contrary. Thus, the law of mistake would benefit someone who lies.
In other words, a person could still get the mandatory presumption of “reasonableness” – even if there is evidence the person did not reasonably believe deadly force was necessary – by falsely claiming he or she believed (but was mistaken) that an unlawful and forceful entry was occurring or had occurred.
O’Meara told lawmakers the current self-defense law has been in place since the 1950s and adequately protects homeowners who are justified in protecting themselves against break-ins. He said homeowners are rarely (if ever) charged when exercising self-defense against home intruders.
“In charging decisions, prosecutors wisely exercise discretion by applying the constitutionally mandated presumption of innocence to the actions of homeowners against home invaders,” O’Meara wrote in a public document to the Senate Judiciary Committee regarding SB 79.
Those in favor of castle doctrine legislation, however, believe the current law places too much of a burden on the homeowner to think before reacting to a home intrusion.
Testifying before the Assembly’s Judiciary and Ethics Committee in March, NRA Liaison Darren La Sorte said the “shoot first and ask questions” later mentality of the castle doctrine law is justified when someone unlawfully and forcibly enters the home.
La Sorte asked for amendments that would extend castle doctrine protections to “dwellings” instead of just “residences,” and include “vehicles” to account for car-jacking situations. He also asked lawmakers to eliminate the provision that requires a person be present in the residence before a resident can use deadly and substantial force against a home intruder.
Several of these amendments have been introduced by lawmakers, including one that would not allow the jury to consider whether the person using force had an opportunity to retreat, a so-called “stand-your-ground” provision.
Other provisions of proposed law
The mandatory presumption would not apply if the person who used force was engaged in criminal activity or using the residence to further criminal activity. Additionally, the presumption would not apply if force is used against a police officer who identifies himself.
The presumption would work to bar civil suits against a homeowner who uses force against a person they reasonably believed entered (or was in the process of entering) the residence unlawfully by force, and the resident was home.
Despite immunity, if the homeowner is nevertheless sued in civil court, he or she would be entitled to all costs incurred to defend against the civil action.
Again, the presumption would not apply to bar a civil suit if the homeowner was engaged or engaging in criminal activity or used force against an identified police officer.
Previous castle doctrine legislation has failed to pass the Wisconsin Legislature. The Assembly’s Judiciary and Ethics Committee will hold an executive session on AB 69 on Sept. 29. Both the Assembly and Senate will return for a floor period in October.
By Joe Forward, Legal Writer, State Bar of Wisconsin
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