Nov. 4, 2011 – Both houses of the Wisconsin State Legislature have passed legislation to change Wisconsin’s self-defense law in the context of unlawful intrusions onto private property. The bill now goes to Gov. Scott Walker for final consideration.
The so-called “castle doctrine” legislation passed by a 27-6 vote in the Wisconsin Senate yesterday (Nov. 3) and by a 71-24 vote Nov. 1 in the Wisconsin Assembly. It was originally proposed to apply to “residence” intrusions only but was subsequently expanded to cover intrusions into dwellings, vehicles, and places of business.
The State Bar of Wisconsin’s Criminal Law Section – composed of nearly 600 judges, prosecutors, criminal defense lawyers, and academics – opposed the bill as a dramatic and unnecessary change to existing law. They argue it will create unintended consequences, given the nuanced workings of presumptions and evidence law that are specific to Wisconsin.
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 under Section 939.48(1).
That means a person must prove the level of force used in self-defense was necessary and reasonable under the circumstances. In the case of home intrusions, the use of deadly or substantial force against a home intruder has always been justified.
According to a floor memo to lawmakers by Marquette University Law Professor Gregory O’Meara, former Criminal Law Section Board chair, no Wisconsin homeowner has ever been charged with a crime for defending him or herself against a home intruder.
“This fact is not surprising,” O’Meara wrote. “No such charge would be able to be proven beyond a reasonable doubt given the current law in Wisconsin, and Wisconsin prosecutors don’t waste court resources on cases they can’t prove.”
Specifics of AB 69
Assembly Substitute Amendment 3 to AB 69, passed in both houses, expands a person’s right to use deadly or substantial force against someone who unlawfully and forcibly enters their “dwelling,” “vehicle,” or “place of business,” regardless of whether such force is necessary or reasonable to defend against imminent death or substantial harm.
A “dwelling” encompasses "any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use." Wis. Stat. section 895.07(1)(h). "Dwelling" also includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements. Id.
Under the new law, if signed by Gov. Walker, a court must presume a person was justified in killing an intruder, regardless of whether the property or business owner or legal occupant (collectively, “property owner”) reasonably believed the force was necessary to defend against imminent death or substantial harm.
The presumption applies if a person entered or was in the process of entering a dwelling, vehicle, or place of business unlawfully and by force, and the property owner was present inside the dwelling, vehicle, or place of business. The property owner must reasonably believe an unlawful and forcible entry occurred or was occurring.
If those elements are found, the property owner will benefit from an instruction to the jury that use of deadly or substantial force is presumed “reasonable.”
The Criminal Law Section argues that under the law of mistake, a murderer could benefit from the mandatory presumption by falsely claiming he or she mistakenly believed someone was breaking into his or her vehicle, place of business, or dwelling.
The presumption does not apply if the intruder is a “public safety worker” and identified him or herself, or the property owner should have known it was a public safety officer. A late amendment covers “public safety workers” instead of just “peace officers.”
Also, the presumption does not apply if the property owner is engaged in criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time of the intrusion.
In addition, the new law will disallow a court from considering the property owner's ability to flee or retreat before using force, a so-called “stand-your-ground” provision.
The presumption will work to bar civil suits against a property owner who uses force against a person they reasonably believed entered (or was in the process of entering) the dwelling, motor vehicle, or place of business, unlawfully by force.
By Joe Forward, Legal Writer, State Bar of Wisconsin
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