Stand Your Ground Defined
"Stand Your Ground" is a colloquial term referring to self-defense laws in some states in the United States. These laws broadly state that there is no duty to retreat in the face of enough force that would create a reasonable belief of death or great bodily harm. Stand your ground is also sometimes referred to as the "Castle Doctrine" of self-defense; this is because many stand your ground laws include a provision that states you have no duty to retreat in your home or car before using deadly force. Wisconsin does not currently recognize the "Castle Doctrine" but does not impose a duty to retreat .
"Stand your ground" law are an advancement of the "duty to retreat" doctrine, which is recognized in most jurisdictions. The "duty to retreat" doctrine requires that a citizen using deadly force refrain from doing so if they could safely retreat from the situation. In fact, you may be charged with a crime if you fail to do so. In 2011, the Wisconsin Supreme Court held in State v. Head that a person cannot be required to retreat before using deadly force in a place where he or she has a right to be. Wis. Stat. § 939.48(1).
As a result, Wisconsin courts have essentially adopted a stand your ground doctrine that includes an exception for home and car invasions, even though there is no statutory basis for doing so.
Does Wisconsin Have a Stand Your Ground Law?
Wisconsin does not have a stand your ground law. In 1995 the Wisconsin State Legislature passed 941.23, which allows people to use deadly force—and the provisions of the law pertain to both the defense of self and of others—if the individual has reasonable strong belief that the use of deadly force is necessary to prevent death or great bodily harm. The law further states that a person is not normally obligated to retreat from their residence if someone is forcefully entering. While this section of the law concerns itself specifically with the use of deadly force in self-defense, overall, Wisconsin has no law allowing an individual to use deadly force to protect their property. However, this should not be construed as allowing someone to take physical action to stop an individual who is breaking in or trying to steal something from them. If reasonable, an individual does not need to wait for the police to arrive before taking action to stop the individual. Self-defense is always a valid defense to murder, manslaughter, or other homicide charges.
Wisconsin Self-defense Statutes
Wisconsin Criminal Code Annotated section 939.48 provides the elements of the complete and partial defenses of self-defense and defense of others. The law in Wisconsin is that a person may intentionally use only that force Wisconsin County Criminal Protection District Attorney Office reasonably believes is necessary to prevent or stop the unlawful interference with his or her person by another.
Further, a person may intentionally use only that amount of force Wisconsin County Criminal Protection District Attorney Office the person is reasonably believes necessary to prevent or stop from immediately being stopped an unlawful interference Wisconsin County Criminal Protection District Attorney Office a third person by another person.
It is reasonable for a person to use only that amount of force that he or she reasonably believes necessary to prevent or stop an unlawful and forcible entry into any dwelling Wisconsin County Criminal Protection District Attorney Office in Wisconsin’s jurisdiction. Further, a person may intentionally use that amount of force Wisconsin County Criminal Protection District Attorney Office the person Wisconsin County Criminal Protection District Attorney Office reasonably believes necessary to dislodge and remove an individual who enters a commercial premises Wisconsin County Criminal Protection District Attorney Office in Wisconsin’s jurisdiction without the consent of the person Wisconsin County Criminal Protection District Attorney Office the commercial premises, if the premises:
seems to be entering the premises unlawfully and with force or aggression;
is not allowed to remain in the premises without permission; and
is in the immediate act of dislodging, damaging, or destroying; or immediately prior to the entry or presence in the premises, has dislodged, damaged or destroyed a commercial structure on the premises.
A person may defend himself or herself by using non-lethal force or threatening to use non-lethal force against another person, even when he or she cannot retreat safely, and even if the non-lethal force is intended to cause only bodily harm, if the following exist:
an immediate threat of an unlawful use of force against the actor;
in the time allowed by the circumstances, the actor cannot retreat safely; and
the actor believes that he or she can eliminate the danger only by the immediate use of non-lethal force upon another person.
Further, a person may use non-lethal force against another person if:
the person may lawfully enter or remain upon the premises in Wisconsin, with or without his or her consent;
the person reasonably believes the other person is about to seriously damage, destroy, or dislodge any property contained in the unlawful entry or presence; and
the person uses the non-lethal force only after doing one of the following that was practical under the circumstances:
giving the intruder notice to lawfully depart the premises; or
directing the intruder to depart the premises Wisconsin County Criminal Protection District Attorney Office if the person is not in the actor’s presence.
Wisconsin law also allows a treating victim in Wisconsin to use lethal force Wisconsin County Criminal Protection District Attorney Office immediately stop an unlawful and forcible, or attempted unlawful and forcible, entry into a residence or occupied vehicle by another. However, Wisconsin Self-defense and Defense of Other Law Annotated section 939.48 (2)(f) limits the use of lethal force, as follows:
Wisconsin law does not allow a person to threaten to use lethal force unless the person reasonably believes those circumstances require the use of lethal force.
Moreover, a person may use lethal force Wisconsin County Criminal Protection District Attorney Office a third person’s defense where:
the person is lawfully present at the location used as a defense, and;
the person reasonably believes the circumstances of defense to the third person are imminent and, are such as authorizes the use of lethal force by the third person, Wisconsin law does not allow a person to threaten to use lethal force against a third person unless he or she reasonably believes those circumstances require the use of lethal force.
Stand Your Ground Compared
Unlike Florida and many other states, Wisconsin has yet to enact a separate "Stand Your Ground" law providing an individual with the right to use force without a duty to retreat. However, this does not mean, in practical terms, that Wisconsin does not have a Stand Your Ground law; indeed, there exists a robust body of court interpretations regarding self-defense provisions, which if applied to the facts of recent high-profile events, would yield the same result as if a stand your ground provision were in effect. Accordingly, although Stand Your Ground may not be explicitly included in Wisconsin law, the body of the law in place centers on the fundamental principle associated with stand your ground law: a person may "stand his ground" possessed of no duty to retreat under the circumstances.
Further, Wisconsin’s first castle doctrine statute was enacted in 1985 and provided a bright line approach to Castle Doctrine law in the state in that use of deadly force was presumed to be reasonable if use of such force met certain standards . The now repealed law has since been replaced by Section 939.48 (2m), Wisconsin Statutes which provides as follows:
A person is not criminally responsible for the person’s own conduct if the person reasonably believed that the circumstances necessary to establish any of the following existed:
d) The person reasonably believes the force is necessary to prevent or terminate the commission or imminent commission of a burglary of a building or dwelling or of a criminal trespass to a building or dwelling. The person avoiding the threat to personal safety has a right to be in the building or dwelling. This paragraph does not apply to the protection of property other than a building or dwelling. (emphasis added).
Wisconsin’s self-defense law, along with the more typical elements such as necessity, provocation by the defendant, and danger of serious bodily harm to oneself, places Wisconsin in the mainstream, broadly consistent with most states.
Key Cases and Controversy
In Wisconsin, the concept of self-defense has garnered attention through various legal cases and public debates. One high-profile case involved the killing of Joseph Pettaway by Deputy John Doe, a dispute set to begin in 2020 and an instance where officers reportedly used excessive force. However, because Wickstrom was deemed the initial aggressor, and since the theory is sound that Wickstrom had committed the battery beforehand, the defense most likely will seek a dismissal on the basis of youth violence.
Cases involving Black men in self-defense have been under review in the public courts as well as the media lately, with the case of the death of Jacob Blake making national headlines. Three witnesses who claim to have seen the shooting of Blake are among the eight witnesses being called in a trial that has dragged on for over a year so far. The case has attracted a great deal of media attention, but has not resulted in any changes to self-defense laws in Wisconsin.
The debate about self-defense, however, has been intense. Such alliance should be strongly disapproved by law because it places all citizenship in jeopardy, which makes no sense at all. Nobody can support a system that protects everybody that kills, unless the use of lethal force is justified and the evidence of same is well documented. There are no "free passes" in the law. The public understands self-defense.
When You Can and Can’t Use Self-Defense
Wisconsin law does not put an explicit obligation on any individual to attempt to retreat if the individual is threatened with bodily harm or death, but it is not a bad idea to do so when possible. However, whether an individual has retreated is not an issue for self-defense. Now, there are potential benefits of retreat. An individual’s duty to retreat if able can be asserted by the prosecution to show the person is at fault, but retreat also can show that you did not meet the initial aggressor element of self defense.
If the altercation is in your home (your "castle"), even if the party was not an initial aggressor, and even if they are not armed, you have no duty to retreat. You also have no duty to retreat if you are attacked by family (not to condone that type of behavior, just letting you know). At the same time, you cannot be a trespasser to utilize self defense , and you cannot use deadly force if the other party uses no deadly force. If the situation is between two parties in control of their castles, by statute, the aggressor is usually the person who was first to use deadly force.
It is important to note that the initial aggressor element literally means the individual does not have to be "at fault" in some manner for the altercation. There are many situations in which someone is attacked by another, and while the victim is not at fault, because the person was the one attacked, they are nonetheless the initial aggressor.
An example is an unintentionally bumped person who turns around angry and ready to fight. The person is not at fault, but they need to be the one who steps back to avoid a fight. If the unintentionally bumped person takes the bait and fights the original aggressor, despite being innocent, they are the one "at fault" for the fight.
+ There are no comments
Add yours