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    Wisconsin Lawyer
    June 01, 2013

    Home Safe Home: Wisconsin’s Castle Doctrine and Trespasser Liability Laws

    Two recently enacted state laws afford greater legal protection to individuals who use force in response to incursions into their homes and onto their property.

    Mark R. Hinkston

    House in a bird nestMany of us have heard our parents or grandparents speak of the “good ol’ days,” when a loaf of bread cost a nickel, six-mile walks to school were the norm, and few people locked their doors. In those earlier times, the third nostalgic icon – unlocked doors – would generate the occasional humorous newspaper story of a drunken neighbor or passerby who mistakenly entered the wrong house and fell asleep in a bed1 or on the floor2 or, in one case, was discovered by the owners playing their piano with his elbows.3 The wayward intruders were usually whisked away to jail to “sleep it off,” fined a few bucks, or on one occasion, told by the municipal judge to leave town.4

    Inflation and school buses rendered obsolete nickel bread and long treks to school. Modern crime and the concomitant desire for safety have also made unlocked homes generally a thing of the past. Yet even with locked doors and heightened home security, the number of home invasions has not dwindled. That, coupled with an increase in firearms kept in homes, means that the uninvited entrant of today, whether burglar, confused drunken neighbor, or uninvited and unexpected guest, likely has a greater chance of being shot by a home’s occupants in purported self-defense than intruders similarly situated a century ago.

    Although home invasions resulting in the actual shooting of a perpetrator are rare, many people have planned for the occasion and believe they know exactly what they would do in response. Unfortunately, home invaders never use social media to notify their next target. Thus, the constant in home-invasion scenarios is exigency – the need to act quickly in the face of perceived peril. Fear can quickly deplete rational thought and cause a home’s occupant to forsake even the best-laid self-protection plan. In the words of boxer-turned-actor and social commentator Mike Tyson, “Everyone has a plan until they get punched in the mouth.”

    Real-world cases in which a home’s occupants are fortunate enough to defend against intrusion, albeit rare, garner media attention and debate over whether the force used in self-defense was appropriate. Some situations present clear-cut examples of justifiable force and result in an almost immediate decision not to prosecute the actor. For example, in Oklahoma, an 18-year-old widow at home with her 3-month-old son, just a week after her husband died of cancer, shot and killed a knife-wielding intruder while speaking with the 911 dispatcher.5

    In other cases, the need to use force in self-defense is not as clear after the fact. A local example is the death of Bo Morrison, a 20-year-old Slinger native who had been at a garage party with other young friends in March 2012. Morrison hid in the neighbor’s enclosed porch after the party was shut down at 2 a.m. Hearing noises, the neighbor loaded his handgun, went to the porch, and shot Morrison to death after Morrison stepped toward him. The Washington County district attorney did not prosecute, concluding that the homeowner acted reasonably in his use of force in self-defense.

    In 2011, the Wisconsin Legislature enacted several laws ostensibly designed to promote public safety and protection through fortification of the right to self-defense. In December 2011, Wisconsin enacted 2011 Wisconsin Act 94, known as the castle doctrine law. Effective Dec. 21, 2011, the law affords a presumption of immunity in civil and criminal actions to individuals who use deadly force in self-defense against persons unlawfully or forcibly entering their home, motor vehicle, or place of business. It also prohibits consideration of whether the actor had an opportunity to flee or retreat before he or she used force.

    Mark R. HinkstonMark R. Hinkston, Creighton 1988 cum laude, is affiliated with Knuteson, Hinkston & Quinn S.C., Racine. His practice is primarily devoted to business and construction litigation.

    Passage of the castle doctrine law followed enactment of the personal protection act,6 more commonly known as the concealed carry law and discussed in the July 2012 edition of the Wisconsin Lawyer.7 The concealed carry law created a system for the licensed concealed carry of weapons and, with exceptions, confirms the right of individuals to possess weapons, including firearms, in their homes and businesses for protection, even without a concealed-carry permit.

    Wisconsin also enacted 2011 Wisconsin Act 93, known as the trespasser liability act, which took effect Dec. 21, 2011. It addresses the liability of possessors of real property for injury or death to trespassers and provides that, with certain exceptions, a possessor of real property owes no duty of care to a trespasser.

    This article discusses the background and components of the castle doctrine law and the trespasser liability act and practical considerations resulting from their enactment.

    Castle Doctrine Law (2011 Wis. Act 94)

    Background. Every person has the right to defend himself or herself against imminent danger, especially when at home. People’s homes have long been considered sacrosanct when it comes to self-defense. Centuries ago, English jurists and scholars created the metaphor of home as castle: irrespective of actual size or composition, a person’s residence is considered a fortress that promotes defense against violent injury. As Blackstone noted, the law “has so particular and tender a regard for the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity.”8

    In the days of knights and armor, when the proximity between combatants was much narrower because of limitations in weaponry, one had to “retreat to the wall” if attacked – “flee from the presence of danger as far as practicable in a physical sense, or so far that to go further would rather tend to increase than lessen the apparent danger.”9 In Miller v. State, the Wisconsin Supreme Court confirmed more than a century ago that this “flight” rule has been abandoned in Wisconsin as “unacceptable to our modern development.”10

    The Miller court described “the divine right of self-defense” that moors the absence of a duty to retreat when inside the home: When a person is where he or she has a right to be and does not provoke an attack by another person, “he may stand his ground” and if “honestly and reasonably believing himself to be in imminent danger of losing his life or receiving some great bodily harm at the hands of such other,” may use reasonably necessary means “to avert the impending danger, even to taking the life of his assailant.”11

    The common-law rule of no duty to retreat from assault when inside one’s home is now universally accepted in the United States. In 2005, Florida became the first state to codify the doctrine by passing legislation expressly abolishing any duty to retreat from one’s home. Nicknamed the “Castle Doctrine” by the National Rifle Association (NRA) lobbyist credited with the law’s conception, former NRA president Marion Hammer,12 its crux was that one “has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm.”13

    The underlying premises of the castle doctrine are that it is proper for people to protect themselves and others “from intruders and attackers without fear of prosecution or civil action,” and that no one “should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack.”14

    Because Florida’s law applies to a person who is attacked “in any other place where he or she has a right to be,”15 it is now more commonly referred to as Florida’s stand your ground law (rather than the more limited castle doctrine moniker attributed to Hammer). Over the last several years, many states followed Florida by enacting various forms of self-defense laws. Titles and specific content of the laws vary from state to state. The common thread is that they specify that a person facing life-threatening force need not retreat in certain locales (such as home, vehicle, or business) and afford varying degrees of civil and criminal immunity to individuals who claim self-defense.

    Currently, 32 states16 have some form of castle doctrine law (Wisconsin being the 30th state to enact one). Despite the castle moniker, many of the laws (such as Wisconsin’s) extend the protected physical area to beyond one’s home and apply in varying degrees to one’s vehicle and business as well. Seventeen states have stand your ground laws, which in essence apply to anywhere a person has a legal right to be. In addition to castle doctrine and stand your ground, colloquial monikers attributed to the self-defense laws have included “defense of habitation” and “no duty to retreat,” while more pejorative labels placed on the laws include “line in the sand,” “make my day” (from the movie Dirty Harry), and “shoot first, ask later.”

    Scope: Castle (Home), Chariot (Vehicle), and Shop (Business). 2011 Wisconsin Act 94 is not expressly titled the castle doctrine law and, in fact, contains no express reference to that phrase. To some extent it is misnamed, in that it applies not only to one’s home (castle) but also to one’s vehicle and business. In any event, the law addresses civil and criminal liability when self-defense is used.

    Existing Criminal Law. The privilege of self-defense allows a person to protect himself, herself, or another person from real or perceived harm when there is no time to resort to law enforcement for protection.17 Under Wisconsin law, a person may resort to force in self-defense in limited circumstances, such as to prevent or terminate an “unlawful interference” with his or her person.18 In other words, if a person “reasonably believes his life is in danger or that he is likely to suffer great bodily harm, then he has a right to stand his ground and defend himself in such a way and with such force as he reasonably believes is necessary under the circumstances to save his life or protect himself from bodily harm.”19

    Self-defense is a privilege that can be claimed as an affirmative defense to prosecution for any crime based on an actor’s conduct when the conduct is in defense of persons under section 939.48.20 To support a self-defense claim, a defendant “has the initial burden of producing evidence to establish [that] statutory defense”21 and must show that 1) he or she believed there was an actual or imminent unlawful interference with his or her person; 2) he or she believed that the amount of force used or threatened was necessary to prevent or terminate the interference; and 3) his or her beliefs were reasonable.22 The prosecution has the burden of proving beyond a reasonable doubt that the defendant was not acting lawfully in self-defense.23

    The standard to determine whether the person’s beliefs were reasonable is what a person of ordinary intelligence and prudence would have believed in the person’s position under the circumstances that existed at the time of the incident, determined from the standpoint of the actor at the time and not from the jury’s viewpoint. “The reasonableness of the belief is determined by the standard of a person of ordinary intelligence and prudence under all the circumstances existing at the time of the offense, including the right of such person to act upon appearances.”24

    The privilege of self-defense is generally unavailable to a defendant who has provoked an attack, such as “an armed robber with revolver in hand who when shot at by an intended victim shoots back to prevent himself from being killed.”25 An exception is made if the provocateur reasonably believed that he or she was in imminent danger of death or great bodily harm and he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm by his or her assailant.

    In other words, “if there has been provocation by the one assaulted, even if that provocation occurs in the home, successful assertion of self-defense requires a reasonable belief that one cannot retreat before force likely to cause death or great bodily harm may be used.”26 The privilege may also be regained if the actor in good faith withdraws from the fight and gives adequate notice of the withdrawal to the other party.27

    The New Law: Creation of Wis. Stat. Section 939.48(1m). The privilege of self-defense under Wisconsin criminal law is statutory. The new law modifies Wis. Stat. section 939.48 (“Self-defense and defense of others”) by adding a section (subparagraph (1m)) specifying the circumstances under which a person claiming that he or she used force in self-defense is entitled to a “presumption of reasonableness.” It also provides that a court is not allowed to consider whether the actor had an opportunity to flee or retreat.28

    The law does not enlarge or limit the existing right of self-defense. People have always had the right to defend themselves in their homes, vehicles, and businesses. Under the law, a person who uses force in self-defense in those three locales, under specified circumstances, is entitled to a presumption “that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself.”29 This “presumption of reasonableness” in effect satisfies the defendant’s burden under existing law to proffer evidence that he or she “reasonably believed” that 1) there was an actual or imminent unlawful interference with the defendant’s person, and 2) he or she believed that the amount of force he or she used or threatened to use was necessary to prevent or terminate the interference.

    To obtain the reasonableness presumption, a person claiming self-defense who intentionally used force that was intended or likely to cause death or great bodily harm must show that 1) the person against whom force was being used had unlawfully and forcibly entered the actor’s dwelling, vehicle, or business or was in the process of doing so; 2) the actor was present at the time; and (3) the actor knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.30 Although this presumption is not irrebuttable, in most cases it will pose a significant hurdle for the prosecution to overcome.

    The presumption does not apply if 1) the actor at the time was engaged in criminal activity or using his or her dwelling, vehicle, or business to further crime; or 2) the person against whom the force was used was a public safety worker who entered or attempted to enter the actor’s dwelling, motor vehicle, or place of business in the performance of his or her official duties, and the public safety worker identified himself or herself before the actor used force or the actor knew or reasonably should have known that the person entering or attempting to enter his or her dwelling, motor vehicle, or place of business was a public safety worker.31

    Wisconsin’s First Statutory Castle Doctrine Case: Bo Morrison Death. Just over two months after the castle doctrine law went into effect, the shooting death of Bo Morrison brought the law to public attention. In the early morning hours of March 3, 2012, 20-year-old Morrison was at a garage party with approximately 20 friends, some of whom (including Morrison) were drinking alcohol despite being underage. A neighbor awakened by loud music called the police, who investigated. The party abruptly broke up at about 2 a.m. when the garage’s owner (the father of the girls “hosting” the party) told everyone to leave because the police were there. The guests scattered. The neighbor who had earlier called the police asserted that, hearing a noise coming from the area of his enclosed patio, he loaded his handgun and went there to investigate. He also asserted that after entering the room, he saw something out of the corner of his eye, turned, and recognized a person raising his hand and stepping toward him, at which time he fired his gun. Morrison was killed by a gunshot to the chest.

    House in a bird nestThe Washington County district attorney thereafter conducted a thorough investigation of the incident. He issued a comprehensive report of his analysis, noting that this case “appears to be the first case in Wisconsin where the newly created presumption of the use of force, often referred to as the ‘Castle Doctrine,’ could apply.”32 The district attorney concluded that the homeowner shooter was entitled to a presumption of reasonableness under the castle doctrine law because he “reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself’ when he shot Mr. Morrison.”33

    Facts supporting this conclusion included the time of the shooting (2 a.m.), the location (inside a house), that the owner was startled when he walked into the room, and the reason he went into the room (to investigate the loud noise). The district attorney also concluded there were no reasonable facts that would allow overcoming that presumption if the matter were to go to trial.34

    The Issue of “Forcible Entry.” While the district attorney concluded that all elements of the castle doctrine law had been met, he noted one debatable element: whether Morrison had entered the enclosed porch “forcibly.” Under the law, the person against whom force was used must have “unlawfully” and “forcibly” entered or been in the process of doing so. Unlawful is defined in the law as “either tortious or expressly prohibited by criminal law or both.”35 Because Morrison was trespassing, his entry was “unlawful.” The district attorney noted that, unlike “unlawful,” the term “forcible” (or “forcibly”) is not defined in the law.36

    The district attorney looked to use of the word “forcibly” in other criminal contexts (such as the robbery statute and jury instruction) and case law and stated “it is reasonable to believe that a court … would define ‘forcibly’ under the Castle Doctrine as using some degree of ‘force’ which links the unlawful entry and the dwelling.”37 He further noted, “[i]n this case it is clear that even if the two doors (separating the homeowner’s backyard from the three season room/porch) were unlocked, that Mr. Morrison had to use some ‘force’ to open these two doors when he made the unlawful entry into the homeowner’s residence.”38 The district attorney concluded that for the castle doctrine to apply, doors need not be broken.39

    Although the district attorney observed that one “cannot predict precisely how a court would define ‘forcibly’ under the Castle Doctrine,”40 his analysis of the term is insightful. As with most new legislation, questions are raised as it is implemented and applied. For example, the definition of dwelling is quite broad. It has the same meaning as “dwelling” in the contractor-right-to-cure act (Wis. Stat. section 895.07(1)(h)): “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.”  

    To be part of the dwelling, a component need not be attached to the main home; being located “on the immediate residential premises” (such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements) is sufficient.41 It would seem difficult to argue that one merely trespassing on property that is unenclosed, such as a driveway or sidewalk, forcibly entered the premises or that one who entered an open door (such as a garage) forcibly entered.

    As for forcible entry of a vehicle, those parameters may need definition as well. For example, what if a driver encounters another driver engulfed in road rage? The berated driver pulls to the side of the road and the enraged driver follows, gets out of his car, and heads toward the targeted driver with a tire iron or, worse yet, a gun. If the targeted driver sitting in her vehicle shoots the other drive in purported self-defense without waiting until he actually forcibly enters the vehicle, is she entitled to the castle doctrine’s reasonableness presumption (that is, would the other driver’s aggression and forward movement be reasonably construed as being “in the process of forcibly entering” the vehicle)?

    The castle doctrine also applies to an actor’s “place of business.” The forcible-entry requirement would seem to preclude application of the castle doctrine law to a situation in which a person enters, through the general entrance, a business open to the public and then engages in unlawful activity that necessitates self-defense, because there has been no forcible entry. Also, place of business means by statute a business that the actor owns or operates.42 Would employees come under the rubric of business “operators”? It would seem somewhat unjust to afford the protection under the law to an owner or manager who, for example, is assailed by an armed intruder late at night but not to an employee only a few feet away who is also victimized.

    Relationship of “Mistake.” The law of mistake applies in cases involving self-defense. The reasonableness of an actor’s belief “is not defeated by a subsequent determination that his [or her] beliefs were mistaken.”43 Consequently there are many instances in which the law of mistake applies to exonerate a defendant who reasonably, but mistakenly, believed that he or she was facing an imminent threat to his or her life.

    Some observers believe it is problematic to afford the mistake defense to defendants who now have an easier go of it as to reasonableness. Just before passage of the castle doctrine law, the State Bar Criminal Law Section issued a memorandum to the members of the Wisconsin State Assembly. Gregory J. O’Meara, a professor at Marquette Law School, prefaced his comments by calling the new law “perhaps the most radical departure from existing criminal law in Wisconsin proposed in the past twenty-five years.”44 He further opined that the law provides “a defense for irrational people armed with deadly force” and that under “its provisions, malevolent, reckless, or paranoid people who shoot trick or treaters or repairmen on their porch will be presumed to be acting in self-defense.”

    He noted that there are circumstances in which “the law [could have] unintended and serious consequences.” He provided the example of a man who “kills his wife in cold blood in the family home without witnesses.” According to O’Meara, such a man is likely “not squeamish about committing perjury. If he takes the stand and claims that he mistakenly thought [his wife] was an intruder, under [the castle doctrine law], the jury must be instructed that he is presumed to have reasonably believed that force was necessary to prevent imminent death or great bodily harm to himself. The jury, in effect, is prevented from considering if his act was unreasonable. This law erects a presumption in favor of abusive spouses. It should be discarded as unnecessary and unwise.”45 The Assembly did not heed this admonition.

    Civil Immunity: Wis. Stat. Section 895.62. The second component of the castle doctrine law pertains to civil liability. Generally, a person who uses more force than necessary in purported self-defense can be held civilly liable for assault and battery to the extent of the force used in excess of the privilege. If it is determined that a defendant acted in self-defense, there is no battery liability. A defendant in a civil action who alleges self-defense has the burden of proof to satisfy the trier of fact “by the greater weight of the credible evidence, to a reasonable certainty, that [he or she] reasonably believed that the exercise of some force was necessary to prevent injury and also that the amount of force used was reasonable under the circumstances.”46 To determine whether the force used was necessary one could consider the plaintiff’s actions and force, the magnitude of the defendant’s force and the means by which it was applied, and the relative strength and size of the parties.47

    Wisconsin Statutes section 895.62, newly created by the castle doctrine law, is virtually identical to its criminal counterpart (Wis. Stat. section 939.48(1m)) except that instead of creating a presumption of reasonableness, it creates a presumption of immunity in civil actions based on the use of force that is intended or likely to cause imminent death or bodily harm to an actor or another person. An actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person. The actor is thus entitled to immunity if 1) the person against whom the force was used had unlawfully and forcibly entered the actor’s dwelling, motor vehicle, or place of business or was in the process of doing so; 2) the actor was on his or her property or present in the dwelling, motor vehicle, or place of business; and 3) the actor knew or had reason to believe that an unlawful and forcible entry had occurred or was occurring.

    The presumption does not apply if 1) the actor was 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 he or she used force; or 2) the person against whom the force was used was a public safety worker who entered or attempted to enter the actor’s dwelling, motor vehicle, or place of business in the performance of his or her official duties and identified himself or herself in advance, or the actor knew the person was a public safety worker. As with the criminal law, if the presumption applies, the finder of fact may not consider whether the actor had an opportunity to flee or retreat before he or she used force.48

    Further, the law provides that if a court finds that a person is immune from civil liability under this provision, the court must award the person reasonable attorney fees, costs, compensation for loss of income, and other costs of the litigation reasonably incurred by the person.49

    Prochaska v. Rainiero. Prochaska v. Rainiero50 is the “poster case” to justify civil immunity against, and recovery of fees and costs from, an injured perpetrator who sues a homeowner entitled to self-defense civil immunity under the new law. In that 2009 case, the Wisconsin Court of Appeals addressed claims brought by an intruder shot by a homeowner.

    The plaintiff (the intruder) had broken into the defendant’s home late at night when the defendant, his wife, and their three children were sleeping. After the plaintiff entered the house through a roof vent, the defendant was awoken by the family dog, who was barking at the intruder. The defendant went to the hallway and the intruder, down the hall, told the defendant, “I just want to use your bathroom.” The defendant went back to the bedroom, told his wife to call 911, retrieved and loaded a pistol, and returned to the hallway. He knelt down and, not knowing where the intruder was, called out to him. When the intruder walked out of the bathroom, the defendant yelled to him to either “get out or get down.” Before losing sight of the intruder, the defendant shot him.

    The injured intruder thereafter sued the homeowner for battery and negligence, despite having been convicted and incarcerated for his criminal entry into the house. In dismissing the case, the trial court judge stated, “[t]o allow a case as devoid of merit as this one to proceed to trial works an injustice to the jurors who have to hear the case, to the taxpayers who have to pay for it and to the defendant and his family who have to endure the continued trauma resulting from the acts of the plaintiff.”51 The court of appeals affirmed.

    The plaintiff remains incarcerated. He is fortunate that the passage of the castle doctrine proviso allowing recovery of “reasonable attorney fees, costs, compensation for loss of income, and other costs of the litigation reasonably incurred by the person” followed this incident and his lawsuit.

    Not surprisingly, the Prochaska case generated some public outrage. As one commentator has noted, “Few tort scenarios seem to arouse more public outrage than the prospect of an intentional and morally culpable trespasser – for example, a burglar – being injured during his trespass and suing the property’s possessor for damages sustained during this trespass.”52

    Future Expansion? It is no surprise that the NRA is the primary organization promoting enactment of castle doctrine laws in Wisconsin and elsewhere. Some NRA members continue to urge Wisconsin to broaden its law into a stand your ground law, such as Florida’s, thereby allowing a person to use appropriate force in self-defense anywhere the person has the lawful right to be (not just in a home, vehicle, or business).53 It remains to be seen whether such a law will be proposed and enacted.

    Trespasser Liability Act (2011 Wis.Act 93)

    In addition to the concern, remedied through passage of Wis. Stat. section 895.62, that criminals involved in home invasions would try to profit from their crimes, Wisconsin legislators also had a concern that trespassers would also benefit from a potential looming change in the standard of care owed to them by landowners. Under Wisconsin common law, landowners owe a duty of reasonable care to all persons who come onto property with the owner’s consent and owe a lesser duty of care to trespassers on their property than they do to other people, such as employees, frequenters, and guests. The only duty owed to a trespasser is to refrain from willful, wanton, or reckless conduct.

    In 2011, the American Law Institute released the Restatement Third, Torts: Liability for Physical and Emotional Harm. Among other things, the new Restatement adopts a unitary standard of “reasonable care” to all persons who enter onto land (including trespassers), with a sole exception for “flagrant trespassers.”54 Consequently, courts adopting the Restatement Third paradigm “no longer have to address whether an entrant is a licensee, an invitee or a trespasser in determining whether and which duty applies.”55

    Sponsors of the trespasser liability act expressed concern that if Wisconsin courts were to adopt this new provision, only suits by flagrant trespassers, such as armed burglars, would be barred. The door would be opened to claims and lawsuits by all other trespassers, such as hunters or snowmobilers. This would not only potentially result in insurance companies raising their rates but also would require landowners to take greater precautionary measures to deter trespassers or protect them even if they are unlawfully on the land.

    The new law staves off the new Restatement. Newly created Wis. Stat. section 895.529, “Civil liability limitation; duty of care owed to trespassers,” codifies existing Wisconsin law as to the duty of possessors of land, defined as an owner, lessee, tenant, or other lawful occupant, to trespassers. Under the law, a possessor of real property owes no duty of care to a trespasser. He or she may be liable for injury or death to a trespasser if the possessor of real property willfully, wantonly, or recklessly caused the injury or death, but not if the possessor used reasonable and necessary force for the purpose of self-defense or the defense of others under Wis. Stat. section 939.48 or for the protection of property under Wis. Stat. section 939.49. A possessor under the new law can also be held liable under certain circumstances if the person injured or killed was a child.


    There is some public misconception that the two new laws dramatically enhance property owners’ right of self-defense and diminish their duty to trespassers. Although the castle doctrine law has fortified or clarified existing law, it has not dramatically expanded the right of homeowners to shoot and kill in self-defense. That is, it has not relieved persons acting in self-defense from the prior standards of reasonableness. Wisconsinites have always had the right to defend themselves and others against imminent threats to their life. While the new law, just as the old, requires them to act reasonably in doing so, it provides a different paradigm for judging reasonableness. As for the trespasser liability act, it does not downgrade trespasser standing in the duty-of-care hierarchy but merely codifies the existing common-law standard of no general duty owed to trespassers

    The rarity of incidents involving unreasonable instances of homeowner self-defense will not deter the state’s criminal and civil jury instruction committees from propounding appropriate instructions that will be at the ready when they will be needed. Moreover, the Wisconsin appellate courts will be of eventual aid, as necessary, to interpret and apply these fledgling laws, and the State Bar Criminal Law Section will continue to lend its expert insight into the immersion of these laws into mainstream criminal law practice. But no amount of legislative drafting, artful crafting of instructions, careful judicial review, or insightful commentary will ensure that those unlucky future victims facing forcible intrusions into their homes, businesses, or vehicles will be able to successfully defend themselves and other inhabitants.

    In 1921, U.S. Supreme Court Justice Oliver Wendell Holmes Jr. penned a more sophisticated version of Mike Tyson’s “plan until punched” principle, observing that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” Because the castle doctrine law does not inoculate against poor judgment or rash acts under pressure, one obviously hopes that its passage will not embolden gun owners to cavalierly, and with no fear of reprisal, “shoot first and ask questions later.” The goal, of course, is to shore up self-defense while not losing a single innocent life, such as, for example, trick-or-treaters, locked-out teenagers sneaking back in late at night, intoxicated trespassers wondering why they have a different couch, or any other individual who, without intent to forcibly enter and do harm, goes into the proverbial wrong place at the wrong time.

    Despite advances in technology and modern legislation to ostensibly fortify protection and safety, human nature is such that victim and criminal, thrown together during the unscripted horrific event of an intrusion into a place where a person has the right to stand his or her ground, may at times act unreasonably, mistakenly, and even irrationally. One hopes that any discussion of the scenarios involving the new laws is purely hypothetical or academic.


    1 Drunken Man Found In Bed, Racine Weekly J., March 2, 1906.

    2 From The Police Blotter, Racine J.-News, Aug. 12, 1912, at 2 (describing man who, “while under the influence of liquor, made a mistake and went to the wrong house when on his way home on Mead Street”).

    3 In The Wrong Home But Hadn’t Forgot His Musical Power, Racine J.-News, Sept. 11, 1914, at 3.

    4 Ordered Out Of Town, Racine J.-News Oct. 15, 1913, at 10 (“Adam Brown, a man who entered the wrong house yesterday, and was found asleep sitting on a chair, woke up in the municipal court this morning. He was let go on promising to leave the city”).

    5 Michael Winter, Okla. mom kills intruder after operator says to protect baby, USA Today, Jan. 4, 2012.

    6 2011 Wis. Act 35. See Wis. Stat. §§ 175.60, 941.23, 943.13.

    7 Mark Hinkston, Wisconsin’s Concealed Carry Law: Protecting Persons and Property, 85 Wis. Law. 7 (July 2012).

    8 4 Blackstone, Commentaries on Laws of England 223 (1765-1769).

    9 Miller v. State, 139 Wis. 57, 75, 119 N.W. 850 (1909).

    10 Id.

    11 Id. at 75-76.

    12 Manuel Roig-Franzia, Fla. Gun Law to Expand Leeway for Self-Defense, Washington Post, April 26, 2005, at A1.

    13 Fla. Stat. § 776.013.

    14 American Legislative Exchange Council (ALEC) Model Castle Doctrine Act (adopted by many states, including Wisconsin, in full or in part).

    15 Fla. Stat. § 776.013.

    16 Marc Fisher & Dan Eggen, Stand Your Ground laws coincide with jump in justifiable-homicide cases, Washington Post, April 7, 2012.

    17 State v. Brown, 107 Wis. 2d 44, 54, 318 N.W.2d 370 (1982).

    18 Wis. Stat. § 939.48(1).

    19 Estate of Sustache v. Mathews, 433 B.R. 732, 735-36 (Bankr. E.D. Wis. 2010), aff’d, 452 B.R. 751 (E.D. Wis. 2011).

    20 Wis. Stat. § 939.45(2).

    21 State v. Stoehr, 134 Wis. 2d 66, 87, 396 N.W.2d 177 (1986).

    22 See Wis. JI–Criminal 805. See also Wis. Stat. § 939.48(1).

    23 State v. Staples, 99 Wis. 2d 364, 376-77, 299 N.W.2d 270 (Ct. App. 1980).

    24 Maichle v. Jonovic, 69 Wis. 2d 622, 230 N.W.2d 789 (1975).

    25 State v. Mendoza, 80 Wis. 2d 122, 171, 258 N.W.2d 260 (1977) (Hansen, J., dissenting).

    26 State v. Herriges, 155 Wis. 2d 297, 305, 455 N.W.2d 635 (Ct. App. 1990).

    27 Wis. Stat. § 939.48(2)(b).

    28 Wis. Stat. § 939.48(1m)(ar).

    29 Id.

    30 Id.

    31 Wis. Stat. § 939.48(1m)(b).

    32 Report of the Washington County District Attorney’s Office Regarding the Shooting of Mr. Bo Morrison on March 3, 2012 [hereinafter Morrison Report] at 1.

    33 Id. at 15.

    34 Id. at 3.

    35 Wis. Stat. § 939.48(6).

    36 Morrison Report, supra n.32, at 23.

    37 Id. at 24.

    38 Id. at 23.

    39 Id. at 24.

    40 Id. at 25.

    41 Wis. Stat. § 895.07(1)(h).

    42 Wis. Stat. § 939.48(1m)(a)2.

    43 Maichle, 69 Wis. 2d at 628.

    44 Memorandum, RE: Opposition to AB 69 relating to: the privilege of self-defense, from Gregory J. O’Meara to Wisconsin State Assembly on behalf of State Bar Criminal Law Section (Oct. 31, 2011).

    45 Id.

    46 Wis. JI–Civil 2006.

    47 Crotteau v. Karlgaard, 48 Wis. 2d 245, 249, 179 N.W.2d 797 (1970).

    48 Wis. Stat. § 895.62(4).

    49 Wis. Stat. § 895.62(5).

    50 Prochaska v. Rainiero, No. 08-1019, 2009 WL 1406982 (Wis. Ct. App. May 21, 2009) (unpublished opinion citable for persuasive value).

    51 Mike Dupré, Judge dismisses burglar’s lawsuit, Janesville Gazette, March 6, 2008.

    52 Richard L. Cupp Jr., In Praise of Moral Judgment: The Restatement (Third) of Torts and Flagrant “Bad Guy” Trespassers, 1 Wake Forest L. Rev. Online 37 (2011).

    53 Erica Goode, N.R.A.’s Influence Seen in Expansion of Self-Defense Laws, N.Y. Times, April 12, 2012.

    54 Hope T. Cannon, The New Restatement, Chapters 8 and 9, For The Defense (Jan. 2011).

    55 Id. at 19.

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