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  • WisBar News
    June 20, 2017

    Defendant Entitled to Self-defense Instruction after Standoff with DNR Wardens

    Deborah Spanic

    Hunter with Rifle

    June 20, 2017 – As a result of a tense standoff with DNA wardens on his property, a Lafayette County man was convicted by a jury for resisting a law enforcement officer and intentionally pointing a firearm at an officer.

    Recently, in State v. Stietz, 2017 WI 58 (June 13, 2017), the Wisconsin Supreme Court reversed (4-2) and remanded for a new trial because it concluded the circuit court erred in not allowing a jury instruction on self-defense.

    The Confrontation

    Robert Stietz, a 64-year-old farmer in Lafayette County, owns property where he pastured cows, hunted, and gathered morel mushrooms. Over the years, he has encountered problems with trespassers hunting illegally and vandalizing his property.

    In November 2012, on the last day of gun deer season, Stietz was patrolling his property for trespassers and walking his fence line to ensure there were no holes.

    He drove and parked his wife’s vehicle in a field near the gate to his land. He carried his rifle in a safe position with the safety on and kept a handgun in his pocket. He wore a camouflage coat and hat, and did not wear any blaze orange as most hunters would.

    Two wardens with the Wisconsin Department of Natural Resources (DNR) were patrolling that afternoon, looking for hunters who were trying to get a deer after gun deer season ended at 4:45 p.m.

    About 10 minutes after gun season ended, the wardens noticed Stietz’s car parked in a field along the fence line, a quarter mile from the highway. Peering into the vehicle they learned it was registered to Stietz, and they saw an empty gun case, scent-killer spray, and a camouflaged tree seat.

    Concluding that the owner of the sedan was hunting after deer season ended, the wardens decided to look around. They wore their DNR uniforms, blaze-orange, department-issued jackets that had the DNR insignia on the sleeve and hats with the DNR insignia. Neither had a rifle, but both carried a handgun and a long flashlight.

    The wardens walked the fence line and through the partially-open cattle gate and onto Stietz’s property. Stietz testified that he saw blaze orange in the woods. He headed toward the cattle gate to identify the figures. Both the wardens and Stietz testified that it was almost completely dark when the three men crossed paths.

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    Stietz testified that he did not see the DNR insignia or badges as the men approached, and that in his mind, the blaze-orange signified hunters. In addition, Stietz testified that neither man clearly identified himself as a game warden as they approached him, leading him to suspect they were two trespassers hunting illegally on his land.

    After the wardens asked Stietz if he had seen any deer, they then asked if his rifle was loaded. He said yes. One warden asked twice for the rifle and Stietz said no both times. Stietz testified that at this time he feared for his life. The warden then grabbed Stietz by the front of his jacket while reaching for the rifle.

    The men grappled for the rifle, with the warden eventually obtaining it then casting it aside. Stietz then testified he saw the other warden fumbling to pull a handgun from his hip holster, then the first warden drew his handgun and pointed it at Stietz.

    Stietz then reached for his own handgun, stating to the two men that he had a right to protect himself. While continuing to point his gun at Stietz with one hand, the warden called Lafayette County dispatch for assistance. Stietz said he was relieved when the call was made, and only then started to realize that the two men were wardens.

    Stietz continued to point his handgun at the wardens because he said he felt unsafe, even after realizing the two men were wardens. After the deputy sheriffs arrived, there was still some time before Stietz would drop his gun. He stated that after the deputies assured him he would not be "gang tackled" he finally lowered his gun, unloaded it, and dropped the gun to the ground. He was then arrested.


    The issue in this case was whether the circuit court, and the court of appeals in affirming the circuit court, erred in refusing to instruct the jury on self-defense, and if there was error, whether that error was harmless.

    Justice Shirley Abrahamson noted in the opinion that a jury must be instructed on self-defense when the jury could find that “a prudent person in the position of the defendant under the circumstances existing at the time of the incident could believe that he was exercising the privilege of self-defense.”

    The evidentiary bar to be entitled to the self-defense jury instruction is low, and “evidence satisfies the ‘some evidence’ quantum of evidence even if it is ‘weak, insufficient, inconsistent or of doubtful credibility.'”

    When determining the role of the court in the decision, Justice Abrahamson noted that it is crucial that “a court is not to weigh the evidence,” and that “the question of reasonableness of a person’s actions and beliefs, when a claim of self-defense is asserted, is a question peculiarly within the province of the jury.”

    In this case, the majority concluded that, “the evidence that the defendant was in fear for his life and believed he was exercising the threat of reasonable force went beyond the minimal quantum of ‘some evidence’ necessary to establish the defendant’s right to a jury instruction on self-defense,” and as a result the circuit court erred in not allowing the jury instruction.

    The second prong the court then considers is whether the error affected the defendant’s "substantial rights," in accordance with Wisconsin’s harmless error rule in Wis. Stat. § 805.18(2). A defendant’s substantial rights remain unaffected if it is clear beyond a reasonable doubt that a rational jury would have come to the same conclusion absent the error.

    “The jury’s acquittal of the defendant on four of the six charges (including the most serious felony count) in part depended on the defendant’s testimony that at times conflicted with that of the wardens,” Justice Abrahamson noted.

    “The acquittals suggest that the jury believed all or some of the defendant’s testimony and, if given the self-defense instruction, might have acquitted the defendant on one or both of the two charges upon which they convicted the defendant.”

    As a result, the majority found that the circuit court’s error was not harmless, reversed the decision of the court of appeals, and remanded the case for a new trial.


    In addition to self-defense, Stietz also wanted the jury to receive instruction on the law of trespass, which was also denied by the circuit court.

    Justice Rebecca Bradley drafted a concurring opinion on this issue, joined by Chief Justice Patience Roggensack and Justice Daniel Kelly.

    Stietz wanted to tell the jurors he believed the two men were trespassers, but the circuit court barred this testimony, which, Justice R. Bradley noted, “prevented Stietz from fully presenting his defense.”

    In addition, Stietz’s attorney also sought to argue the wardens were in fact trespassers, and requested a trespass jury instruction, but the circuit court refused both requests.

    Wisconsin’s trespass statute prohibits any person from entering the land of another without the express or implied consent of the owner or occupant.

    In addition, section 23.58(1) authorizes DNR wardens to conduct a Terry stop, whereby an enforcing officer, having identified him- or herself as such, may stop a person “in a public place” for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit, or has committed a violation of any applicable laws or rules.

    Justice R. Bradley noted that “[t]he wardens here were not in a public place, and even if Terry permitted investigatory stops on private property, the wardens did not have reasonable suspicion that Stietz was breaking the law when they drove onto private property to investigate.”

    “A car legally parked on private property does not, alone, create a reasonable suspicion of a hunting violation. A mere ‘hunch’ that the car means someone is hunting illegally is also insufficient,” R. Bradley wrote.

    The state asserted that the ‘open fields’ doctrine “justified the wardens’ intrusion on private property, reasoning that the doctrine made Stietz’s secluded, remote land a ‘public place’ on which the wardens were privileged to traverse. The State is wrong,” Justice R. Bradley wrote.

    “The open fields doctrine does not sanction the seizure of a person, nor does it create the requisite constitutional basis for seizing a person acting lawfully simply because the person is standing in an open field,” Bradley stated.

    “The State’s bald assertion … that ‘wardens do not need reasonable suspicion to believe that a crime has been committed before they enter private land’ is erroneous,” R. Bradley continued. “The reasonable suspicion standard applies to public places, not an individual’s remote, secluded, fenced, and posted private land.”

    Finally, Justice R. Bradley noted: “It appears the circuit court’s reasoning for refusing to instruct the jury on trespass arose from the court’s mistaken belief that the wardens had the authority to be on the private land and therefore could not be trespassers. The circuit court erred.”


    Justice Annette Ziegler dissented, joined by Justice Michael Gableman. Ziegler noted arguments “that Stietz is not to blame for the escalation of his interaction with the wardens into an armed standoff … but a jury … concluded that … Stietz’s subsequent decision to hold two wardens at gunpoint – despite Stietz’s own admission that he knew the wardens were law enforcement officers by that time – was a bridge too far.”

    “This is not a self-defense case,” Ziegler noted. “The jury’s verdict demonstrates that it found his reaction to law enforcement somewhat excusable with respect to the initial contact. The jury, however, found that the continued exhibition of force was not.”

    Concluding the circuit court did not err in withholding a self-defense instruction, Ziegler stated that “Stietz had no independent legal right to forcibly resist the wardens simply because he thought the wardens lacked the legal authority to seize or disarm him.”

    In addition, “if Stietz thought that law enforcement was in error, his recourse was the judicial system, not physical assault,” Justice Ziegler concluded.

    Even if the court erred, the dissenters found the error was harmless, because by reviewing the counts the jury acquitted Stietz of and the counts he was convicted of, the jury would have reasonably come to the same conclusion.

    “The jury was unwilling to assign guilt to Stietz regarding the initial struggle over Stietz’s rifle, but concluded that Stietz was guilty with regard to the prolonged standoff.”

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