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The Law of Self-Defense in Wisconsin

If you have been charged with a crime in Wisconsin and you believe you had a right to self-defense, you may be found not guilty or may be convicted of a lesser crime based on your right of self-defense.

What types of self-defense are there?

In Wisconsin, there are two types of self-defense: perfect self-defense and imperfect self-defense. Perfect self-defense involves a situation in which the criminal behavior you are charged with is privileged, or legally justified, by your right to either threaten or use force to prevent another person from harming you. If you act perfectly in self-defense, you cannot be found guilty of the crimes you are charged with.

Imperfect self-defense involves a situation in which the criminal behavior you are charged with is considered less serious but neither privileged nor excused entirely because, generally, your threat or use of force was in excess of what was necessary to prevent the other person from harming you, or the potentially deadly threat you were facing was not imminent or requiring an immediate response. In these situations, you may be convicted of another, less-serious crime such as Second Degree Intentional Homicide if you kill someone under circumstances where you thought that person was harming you but you did not need to kill them, and could have used less force to stop them from harming you.

What are my self-defense rights?

Wisconsin’s criminal law states that a person has a right to act in self-defense, without being convicted of a crime, by either threatening to use force against another person or intentionally using force against another person “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,” provided that (1) the person acting in self-defense only threatens or uses force “as the actor reasonably believes is necessary to prevent or terminate the interference” and (2) if the person acting in self-defense intentionally uses or threatens to use an amount of force that is “likely to cause death or great bodily harm,” he or she must “reasonably [believe] that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” Wis.Stat. § 939.48(1).

When could Intentional Homicide be charged?

The State can charge First-Degree Intentional Homicide whenever there is enough evidence to believe you probably killed someone intentionally, meaning you did so purposefully or knowing that your actions were practically certain to kill that person. Wis.Stat. § 940.01(1). Sometimes the prosecutor will decide to not charge an armed defender acting in self-defense with First-Degree Intentional Homicide when they hire an attorney and exchange evidence that allows the prosecutor to conclude that the person accused of the crime acted in perfect self-defense. Yet more often, the prosecutor will charge that person with First-Degree Intentional Homicide and the person accused of the crime will have to raise perfect self-defense at trial.

By contrast, Wisconsin’s statute concerning Second-Degree Intentional Homicide specifically states that if a person acts in self-defense based on an actual but mistaken belief about the risk of harm to themselves or the amount of force they need to threaten or use to prevent the other person from harming them while killing the other person in an act of self-defense, then they can be convicted of Second Degree Intentional Homicide rather than First Degree Intentional Homicide. Wisconsin’s statute on Second Degree Intentional Homicide explains that if the prosecution is able to prove beyond a reasonable doubt that the defendant intended to kill, and did kill, yet the person claiming self-defense “believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person” though one of the defendant’s beliefs were unreasonable, then the defendant can be charged with Second Degree Intentional Homicide. Wis.Stat. § 940.05(1); Wis.Stat. §940.01(2)(b).

What does the prosecution commonly argue?

A common issue that is raised in self-defense cases by the prosecution is whether the defendant could have avoided intentionally using force or threatening to intentionally use force by either retreating from the situation. In Wisconsin, unlike some states, there is no duty for someone to retreat during a conflict but a jury can consider whether a defendant’s failure to retreat, if possible, demonstrates that the defendant’s belief that he or she was at risk of imminent harm from the other person or that he or she needed to use force to stop the other person from harming him or her was a reasonable belief. For example, if you were at your friend’s house, got in a heated argument, and your friend charged at you from the other side of the room while you were standing next to the front door, you may be able to safely leave house and run to your vehicle, rather than engage your friend in a fight.

Additionally, the prosecution commonly argues that the person claiming self-defense is not entitled to self-defense because his or her behavior was the type of behavior that causes another person to attack and that the attack would not have happened if the other person had not been provoked. Wis.Stat. § 939.48(2)(a). Under this situation, a person forfeits the right to use self-defense unless:

  1. the attack results in the behavior that is the person claiming self-defense reasonably believes is likely to result in death or great bodily harm and the person claiming self-defense does not use “force intended or likely to cause death or bodily harm” to the other person; Wis.Stat. § 939.48(2)(a);
  2. the person claiming self-defense has “exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant;” Wis.Stat. § 939.48(2)(a); or
  3. the person claiming self-defense “in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.” Wis.Stat. § 939.48(2)(b).

Yet if a person intentionally provokes a fight as part of a pre-meditated “plan” to cause death or great bodily harm another person and claim a right of self-defense, he or she forfeits the right to use self-defense because his or her action is premeditated or intentional. Wis.Stat. § 939.48(2)(b).

Nonetheless, even if a defendant were to have mistaken beliefs that another person was about to harm him or her or that it was necessary to threaten or intentionally use force to terminate the unlawful interference, the defendant may show that he or she acted reasonably even though one or both of his beliefs were mistaken. Refer to Wis JI- Criminal 770; Maichle v. Jonovic, 69 Wis. 2d 622, 628, 230 N.W.2d 789, 793 (1975) (applying mistake to a defendant’s self-defense claim in a civil context); Crotteau v. Karlgaard, 48 Wis.2d 245, 250, 179 N.W.2d 797, 799 (1970); Keep v. Quallman (1887), 68 Wis. 451, 32 N.W. 233. Understandably, in situations where someone believes another person may attack him or her, there often is not much time to evaluate the situation such that it may be easy to mistake the other person’s actions for a threat even if it later turns out that the belief was mistaken.

A good example of this is the Philandro Castile case in Minnesota where a police officer shot the driver of a vehicle he had pulled over when the driver told the officer he had a firearm and then reached in his back pocket, possibly in response to the officer’s command that he present his driver’s license and proof of registration.  Under these circumstances, the officer’s belief that Mr. Castile presented an imminent threat of death or great bodily harm may have been considered mistaken but reasonable.

Similar to mistake, if a person claiming self-defense “unintentionally” harms an innocent third person, different from the person who believed to be posing a risk of harm, his or her behavior is privileged and may not result in conviction if he or she acted lawfully in self-defense unless it involves crimes of: First-Degree or Second-Degree Reckless Homicide, Homicide By Negligent Handling of A Dangerous Weapon, Explosives or Fire, the actor is liable for whichever one of those crimes is committed. Wis.Stat. § 939.48(3).

Additionally, depending on the facts of the case, a person claiming self-defense may be able to argue that he or she was acting in self-defense to prevent a dangerous threat, which resulted in an accidental discharge of a firearm, causing death. State v. Watkins, 2002 WI 101, ¶¶ 41, 45, 58; 255 Wis. 2d 265, 285, 647 N.W.2d 244, 253 (“[a]ccident is a defense that negatives intent, and may negative lesser mental elements”).

What’s the “Castle Doctrine” defense?

Finally, under the “Castle Doctrine” defense, a defendant can kill another intentionally even without a reasonable belief that the person presented an imminent threat to him or that using violence was necessary to protect him or herself and still be presumed to be acting lawfully and not receive any criminal consequences under certain circumstances. In 2011, Wisconsin adopted a “Castle Doctrine” law that provides a presumption that the beliefs of a person acting in self-defense are reasonable if he or she uses force against a person who forcibly entered the area surrounding another person’s, vehicle, or place of business, regardless of whether he or she had the opportunity to flee or retreat so long as the person acting in self-defense was present and reasonably believed that the other person had made forcible entry; this presumption of reasonableness does not apply, however, if the person making entry was a public safety officer acting within official duties and the person claiming to act in self-defense “reasonably should have known” that the other person was a public safety officer, particularly if the public safety officer identified himself or herself or the person claiming to act in self-defense was engaged in criminal activity at the time she believed forcible entry was occurring.

Wis.Stat. § 939.48(1)(ar) states:

If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:

  1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor’s dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.
  2. The person against whom the force was used was in the actor’s dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.

(b) The presumption described in par. (ar) does not apply if any of the following applies:

  1. The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time.
  2. The person against whom the force was used was a public safety worker, as defined in s. 941.375 (1) (b), 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. This subdivision applies only if at least one of the following applies:
  3. The public safety worker identified himself or herself to the actor before the force described in par. (ar) was used by the actor.
  4. 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.

Under the “Castle Doctrine,” for example, it is presumed to be reasonable for a person to shoot and kill a burglar who broken into a person’s house, appears to be unarmed, and immediately flees when he or she recognizes that the homeowner has a gun. Yet if the person claiming self-defense were to shoot and kill the an unarmed burglar in another person’s home under the same situation, the person claiming self-defense would not have a presumption of reasonableness and therefore could easily be convicted of Second Degree Intentional Homicide under a theory of imperfect self-defense or First Degree Intentional Homicide.

The attorneys at our firm have a history of successfully arguing self-defense in homicide and non-homicide cases. We consult with leading experts throughout the United States on the dynamics of using deadly force, the principles of self-defense, crime scene reconstruction to provide our clients with the best possible defense. If you or a loved one has been accused of a crime for using or threatening to use force while acting in self-defense, please contact our law firm to discuss the facts of your case and possible defenses. Particularly in cases involving homicide or a serious felony, it is important to retain a skilled criminal defense attorney as soon as possible to begin an investigation while evidence is still available, and share information with the prosecutor in some circumstances to maximize your chance of avoiding criminal charges altogether.