A Guide to Self Defense Law in Wisconsin
To understand Wisconsin’s self defense laws, it is crucial to first have an understanding of the very basics of how self defense works under Wisconsin law. Generally speaking, self defense is defined as the right to use force to protect oneself or one’s property from an unlawful attack. This definition implies a certain level of necessary force that can be used, as self defense cannot simply be interpreted as an individual acting however they desire or want against a supposed attacker.
The way that Wisconsin self defense laws are structured is that there is no requirement to retreat from a situation in order to claim self defense, as long as the other circumstances of the situation are such that self defense against the use of force is allowed . The individual would have to have a reasonable belief that they were under an unlawful and imminent attack in order to use self defense as a legal defense in court. Wisconsin laws even state that there is not a duty to retreat if the individual is in their home or vehicle and was not the initial aggressor.
Under both federal law and the law of many states, including Wisconsin, the Stand Your Ground doctrine protects individuals from treating their attackers in a way that may lead to the attacker’s death or serious injury, so long as the alleged attack was not warranted. Wisconsin state law does not require individuals to retreat from the threat before resorting with the proper level of self defense, which is in contrast with some other states where the situation is dependent on whether that retreat was possible or not.
The Legal Requirements for Self Defense
A key aspect of self-defense claims in Wisconsin law is how much force you are legally allowed to use to protect yourself. W.I.J.A.-800 Self-Defense, Defense of Others, and Defense of Property (2016 Edition) is the pattern jury instruction for self-defense. This instruction essentially says that a person is justified in using force in these circumstances: A person may intentionally use reasonable force upon or toward another person only for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person, or by a third person. Only so much force may be intentionally used as the actor reasonably believes is necessary under the circumstances to prevent or terminate the unlawful interference. In addition, force used in defense of others is not reasonable if the actor intentionally disarms an assailant of a weapon or uses a firearm or other deadly weapon against a person who the actor knows is attempting to commit suicide. The above instruction makes few assumptions. Intentionality enters into our analysis right away. If you act intentionally, you may use "reasonable force." "{O}therwise, force is not considered reasonable." Notice that force is not reasonable if it is illegal, or unnecessary. The jury is charged with determining the reasonableness of the force employed. The term "necessary" in philosophical terms is very different than in legal discussions. The law does not ask whether force is advisable to use, or whether it is in fact needed, but only whether a reasonable person in a similar position would have used it. There are important limitations in these instructions. It is important for a court or jury to determine whether the individual using force has done so "for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference." In short, the reasonable force doctrine asks whether a person confronted with a real or threatened attack would have used force, not whether or not the person thinks they need to use force.
Wisconsin Castle Doctrine
Beyond a stand your ground law, Wisconsin boasts one of the most comprehensive castle doctrine statutes in the country. Wisconsin Statute 939.48, titled "Defense of habitation, property, and persons," contains three subsections, the last of which is specific to Wisconsin’s castle doctrine, or "home rule," and states:
(3) "The occupant’s dwelling place" means a dwelling in which a person has a right to be, including any adjacent outbuilding such as a garage.
(a) A person may use force to prevent or interrupt an unlawful entry into or attack upon the occupant’s dwelling place by an intruder if the person reasonably believes that the act is necessary to prevent or interrupt the commission of a felony in the dwelling.
(b) A person may use force to remove or cause the removal from the occupant’s dwelling place of a person who is present in that dwelling place under any of the following conditions:
- The person was not lawfully permitted or entitled to be in the dwelling place.
- The person was asked or told by the occupant to depart and refused or failed to do so.
- (4) In this section "occupant" means a person who has the right to occupy the owner’s dwelling place.
- (5) In this section "intruder" means a person, who enters the occupant’s dwelling place, except any of the following:
(a) An individual who has the intent to commit an act of terrorism against the occupant’s dwelling place.
(b) An individual who is committing or attempting to commit a crime against the occupant’s dwelling place or against property located within the occupant’s dwelling place.
(c) An individual who the occupant has sought or obtained a temporary restraining order or injunction against under ch. 813.
A review of the case law and applicability of use of force in the home shows that courts have read Wisconsin Statute 939.48 broadly and consistently granted defendants the right to use force where the defendant reasonably believes the entry or attack was unlawful. One case is instructive: State v. Day, 211 Wis. 2d 262, 565 N.W. 2d 540 (Wis.App. 1997). In that case, police entered on a warrant. The defendant, upon seeing the police entering his home through the front door, went to the kitchen, grabbed his gun, and issued a warning that he had a weapon. The defendant’s warning was followed by a gunshot, although it’s unclear who fired the shot. The defendant was charged with a felon in possession of a firearm. He defended on self defense grounds. The court discussed the castle doctrine:
The use of a firearm to protect the home is consistent with a person’s right to defend the home and the people in it from entry by a violent person. See sec. 939.48(2)(a), Stats. To be privileged to protect the home, however, the actor must have a reasonable belief that the entry of the intruder is forcible. Here, we must view Day’s belief as to the forcible nature of the entry from his perspective. The test of reasonableness of belief is objective; however, when the circumstances are closely related to personal experiences, the belief of the person must be considered. See State v. Head, 2002 WI 99, ¶32, 255 Wis.2d 194, 648 N.W.2d 413. Day did not know whether the entry of the authorities was forcible or forcible. There is nothing in the record affirmatively establishing that the authorities were entering day’s home forcibly. The evidence indicates only that the authorities knocked on the door and made themselves known. Day’s subjective belief of a forcible entry was not reasonable; he may not protect the home by using a firearm while believing the authorities were entering the home forcibly.
Duty to Retreat or Stand Your Ground
There are two different theories of self-defense in Wisconsin: "Duty to Retreat" and "Stand Your Ground." Under the "Duty to Retreat" theory, a person generally has a duty to retreat from the threat before using deadly force in self-defense, unless he or she is attacked in his or her own home, automobile, or place of employment. "Stand Your Ground" is only applicable when you have an honest belief that you or someone else is in danger of great bodily harm or death: In that situation, you have no duty to retreat from the threat before using deadly force in self-defense, even if you have the option of retreating to a different location.
The "Duty to Retreat" theory is not as simple as it sounds. For example, Wisconsin Statute 939.3(2) provides: A person does not have an obligation to retreat from a place where the person is present lawfully. Nothing in this subsection limits the applicability of the presumption under s. 895.62 [regarding immunity from criminal prosecution for the use of defensive force] to a dwelling or vehicle. Under this statute, retreat is not obligatory when you are in a place where you have a right to be – e.g. your house or your workplace. However, if you are not in a home or workplace protected by special statutes, then it seems that you have an obligation to retreat if possible: A person is not justified in using force against another under this section if the person knows that he or she can avoid the necessity of using that force with complete safety by retreating from the situation, except that the actor is not required to retreat from that person’s dwelling or from his or her place of employment unless he or she was the initial aggressor or is attempting to commit, committing, or escaping the commission of a felony. Wis. Stat. 939.3(2). In other words, in other situations (outside of one’s home or workplace) you have a duty to retreat before using deadly force if that retreat is safe and complete. Yet, the statute provides exceptions where you do not have the duty to retreat before using deadly force: (A) The actor is attacked in the actor’s dwelling or vehicle, even if the actor is in the process of illegally entering into the dwelling or vehicle. (B) The actor is an initial aggressor, but is then attacked with unlawful force that the actor could not reasonably avoid retreating from. Under most circumstances, if you try to run and it’s not safe to run and an attack occurs anyway, you lose your self-defense argument. But if the attack was coming to you anyway, or it came out of nowhere before there was time to run, then you still have a self-defense argument.
The "Stand Your Ground" doctrine is a more straightforward rule. It is based on a public policy decision that individuals do not have a duty to withdraw from an encounter before using deadly force where there is an honest belief that such use of force is reasonable. There are obviously dangers to a "stand your ground" approach to self-defense. For example, you could imagine a scenario where you are walking down the street at night and someone tries to mug you, but you could easily run home. Under a "stand your ground" approach, you are free to shoot to kill the robber. But under a "duty to retreat" approach, you have an obligation to run away. Because of the potential for unintended fatalities, some states have chosen to require individuals to retreat from a potentially life-threatening situation before using deadly force in self-defense. Other states, however, recognize a need to justify deadly force on the basis of honest, good faith belief that such force is necessary. Certain courts in Wisconsin have also recognized a limited "stand your ground" doctrine under Wisconsin law.
Domestic Self Defense
Wisconsin law holds additional considerations for claims of self defense in domestic situations. The law here is different in terms of the duty to retreat and the concept of retained physical control. In these cases, a defendant will not have a duty to retreat when he or she is in his or her residence and is not physically attacking the spouse (or other domestic partner). A physical attack raises other issues, however, as a recent case demonstrates.
In State v. Head (2016 WI App 49), the defendant, 59, was charged with felony-domestic abuse and criminal damage to property for breaking his wife’s arm. Previously, the couple had been married for 15 years; divorce proceedings were pending at the time of the injuries. The dispute that led to the injuries was a verbal argument about a cat they did not want and that they had agreed to get rid of together. The argument escalated, and the defendant’s wife said he "was not going to get the best of her." He interpreted this as a threat. As he turned to leave, she slapped him on the back and exclaimed that "[n]obody was going to get the best of her." He spun around towards her, and the door to their bedroom hit her arm, breaking it.
In defense, the defendant claimed that his action was justified as self defense. He initially tried to flee the scene, but because the altercation occurred in the couple’s bedroom, he was forced to defend himself from what he thought was a battery by his spouse.
The issue in the case turned on the jury instructions. The trial judge refused to include the domestic situation exception with regard to his wife’s physical attack. The defendant was convicted and appealed. The Court of Appeals, examining the history of the "hidden circle rule," found that jury instructions in domestic violence situations which require a person to attempt to avoid the danger or confront it without using force are an inaccurate statement of law. Moreover, the jury instructions should not have stated that the law required the defendant to attempt to retreat to avoid the situation.
Apparently, the second circuit of the Wisconsin Court of Appeals felt the trial court’s error in denying the inclusion of the domestic exception so serious that the conviction was vacated.
Criminal Repercussions of a Self Defense Plea
Legal Consequences of Self Defense Claims in Wisconsin: After the Court Decides
When a self defense claim is successful, meaning that the person raised the claim and the jury found they acted in self defense or the court dismissed the charges, it can have a variety of consequences based upon the facts and what is alleged. For instance, the most common legal consequences are: If the use of force or deadly force was not justified, then it may be that a claim for self defense will be unsuccessful in a court, and then one is vulnerable to criminal penalties. The possible sentences for criminal types of batteries or homicide are varied . The following are some of the major potential charges and sentences: Violations of Wisconsin’s self defense laws is serious and so you need to hire an attorney if you have been charged with violating the law, have been arrested or are being investigated for having violated or possibly having violated Wisconsin’s self defense laws. Each potential violation can have very serious consequences and penalties. You may be exposed to terms of probation, fines, jail, prison, DMV points and loss of license and more based upon how your case turns out. In any investigation the police may want to attempt to determine if the claim of self defense is valid or not and may interrogate you until they are sure. You need to contact a criminal defense attorney immediately if you have been charged with violating Wisconsin’s self defense laws.
Recent Cases
There are countless examples of self defense claims gone wrong, but in Wisconsin, several recent cases can give us insight into the application of self defense. Two cases started with the same issue; a claim of self defense resulting in injury and death. On July 2, 2019, a man on trial in the shooting death of a Milwaukee police officer claimed he was acting in self defense when he shot the officer after a foot pursuit. The case is still on trial, awaiting a verdict. On September 4, 2018, a man claiming self defense in the shooting death of his father, was convicted for second degree intentional homicide. On September 19, 2019, the man was sentenced to 20 years in prison and 20 years of extended supervision. He claimed that his father was approaching in a way that made him fear for his life and so he fired at his father. Evidence showed, however, that the father was not charging and the man had ample opportunity to go around, so this was not a situation of imminent danger. It is important if you are involved in any type of altercation or self-defense situation, to avoid further escalation and exercise caution. Both cases above were situations that unfortunately turned deadly.
Consult an Attorney
The import of the facts and the law as set out in your police report depend on the legal advice and analysis of your actions offered by your attorney. This is so because despite the fact that the self defense law is so important and legal standards are well established, the legal elements for self defense must be proved by you, i.e. the defendant.
This means that the Government will focus on anything available to dispute any part of the proof you need to present to the jury. Oftentimes your self defense argument will require you to literally testify in a way that seems to contradict your prior statements. Sometimes this is what is so difficult and why you should be ready to testify for yourself and permit the judge and jury to hear from you directly. But there are many legal reasons why you not only are justified in having a lawyer argue for you, you are served by having your own legal team present your case to the judge and jury.
Conclusion
In conclusion, self defense is a vital topic to be familiar with in case of an emergency. Knowing the laws of when and how to use self defense in Wisconsin could mean the difference between losing and protecting your life. Without a basic understanding of the self defense laws in your state, you could be caught off guard when facing a life-threatening situation. This is not an uncommon scenario , as it’s not unusual for individuals unaware of their rights regarding self defense to find themselves in need to assert those very rights. We recommend you study these laws so that you are prepared to protect yourself in any situation. Should you ever end up facing a charge, it’s essential you consult a criminal defense attorney for assistance in determining your next steps.