By: Casper Mehlos Law Group August 29, 2024

Understanding Successful Self-Defense Strategies

The Requirements of Self-Defense in Wisconsin

If you are charged with a crime and believe you have acted in self-defense, there are certain things you need to know.

First, to be able to argue self-defense, you need to merely provide “some evidence” that:

1. That you believed that another person created an “actual or imminent unlawful interference with” your person, meaning you believed the other person was on the verge of or actually was attack you;

2. That you believed that the amount of force you used to stop the attack was necessary to terminate that unlawful interference, or that you did not act excessively by not using force beyond what was necessary to stop the attack; and

3. That both of your two beliefs were reasonable, meaning that a person in your situation would reasonably believe those same beliefs.

If you use potentially deadly force, such as shooting someone during an act of self-defense, then you must also provide some evidence that you feared an imminent threat of death or great bodily harm (defined as bodily injury which creates “a substantial risk of death” or “serious bodily injury” such as permanent disfigurement or prolonged loss of a body function or organ or other serious bodily injury) and the use of force was necessary to prevent that risk. Refer to Wisconsin Criminal Jury Instruction 805.

How To Determine If Using Force In Self-Defense Is Justified

Self-defense experts will explain that an immediate threat that justifies self-defense requires consideration of three key factors: ability, opportunity, and jeopardy. “Ability” means the aggressor has the power to cause physical harm from bruising all the way up to death. “Opportunity” means the aggressor can deliver that power immediately. “Jeopardy” means the aggressor’s actions or words would lead a reasonable person to believe the aggressor intends to attack immediately. The Wisconsin’s Department of Justice teaches the same concepts when evaluating the use of potentially deadly force in self-defense but uses the terms weapon (vs ability), delivery system (vs opportunity), and intent (vs jeopardy), with the same definitions. Accordingly, the threat assessment requires consideration of the attacker’s ability to cause harm (Is the aggressor strong enough to cause harm? Does the aggressor have a weapons?); the opportunity or delivery system (is the aggressor within a close enough distance to carry out an attack, meaning within accurate shooting distance with a firearm, within 21 feet with a knife, or within close enough distance that the attacker can reach you before you get can away and remove
yourself from the situation; the closer the attacker is, the more dangerous the situation); and has the aggressor placed you in jeopardy through a threat or action that signals an immediate attack is or will happen.

Use of force studies demonstrate a “reactionary gap” (i.e. the action of the attacker is always quicker than the reaction of the defender) that gives an advantage to the attacker over the defender because the attacker knows what s/he is going to do whereas the defender needs more time to react to the attacker’s actions. In the context of self-defense cases that involve discharging a firearm, studies demonstrate the need for the defender to be as proactive as possible once he or she believes the attacker poses a deadly threat. Police are trained that if a person with a knife is within approximately 21 feet of the officer, a trained officer who believes the armed attacker intends to stab him will need to use deadly force because of the time it takes to unholster his service pistol, aim, and shoot before the attacker can reach and kill the officer, which takes approximately 1.5 seconds. Unfortunately, FBI statistics demonstrate that 7 percent of officers killed in the line of duty are shot with their own service pistol, meaning the attacker reached them and wrested their gun away from them, in many cases because they hesitated too long before using deadly force. When an armed defender is holding a gun or weapon in one hand, s/he only has one “weapon retention” hand to fight off the attacker and prevent the attacker, with two hands, from wresting the weapon away from the armed defender.

Contrary to what many people believe, potentially deadly self-defense may be justified even if the attacker does not have a conventional weapon such as a gun or knife. Motivated attackers, often under the influence of drugs, can and do kill through strangulation or beating someone to death, or can beat someone so severely without a weapon that they can cause great bodily harm to the innocent person. As one example, tragically, in 2019, an unarmed attacker with apparent mental health issues, killed an unarmed nurse without a gun or a knife at a Milwaukee Hospital. https://www.jsonline.com/story/news/local/milwaukee/2019/01/27/couples-dog-alerts-husbandwifes-danger nurse-practitioner-found-trapped-under-car-bleeding-and-froz/2696787002/ Similarly, the attackers’ access to unconventional weapons, including broken glass or sharp objects, hard objects such as bricks, increase the risk that the attacker can kill or cause great
bodily harm.

Defense of A Third Party

Similarly, under Wisconsin law, you have a right to defend another person who is being attacked or threatened “under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably.” Refer to Wis.Stat. § 939.49(1). In other words, if a person with a knife attempted to attack an innocent family member standing near you, you would have the same right to defend your family member as if the attacker were attacking you as long as all of the required conditions of self-defense were present.

How Much Evidence Is Needed In A Criminal Case To Raise The Issue of Self-Defense

The evidence to raise the argument of self-defense is not much evidence. Wisconsin law requires “a low bar” that the accused provides merely “some evidence” that would support each of those three points to be able to argue self-defense even if that evidence is weak or even inconsistent. State v. Stietz, 2017 WI 58, 369 Wis. 2d 222, 880 N.W.2d 182.

The Government’s Burden of Proof Once You Successfully Raise Self-Defense

Assuming the person accused of a crime provides some evidence of self-defense, the government then has the difficult burden of proving that self-defense does not apply by demonstrating proof beyond a reasonable doubt. Proof beyond a reasonable doubt means such strong evidence that there can be no reasonable question that the person is guilty, meaning the type of uncertainty that is merely enough to make a person of reasonable intelligence to simply pause or hesitate as that person would before making one of the most important decisions of their life.

It is important to know that under Wisconsin law, a person acting in self-defense can be mistaken about perceiving what he or she reasonably believes to be an imminent threat that requires the use of force to terminate that threat. A common example of this is “mistake of fact shootings.” Studies estimate that between 16 to 33 percent of justifiable use of force events by trained police offices acting in their official capacity involve a mistaken yet reasonable belief that it was necessary for officers to use deadly force based on the perception of an imminent threat of death or great bodily harm. This can happen in a dynamic and quickly changing environment involving poor lighting. For example, a police officer may see in poor lighting someone abruptly reaching for an object s/he believes to be a gun but turns out later to be a cell phone.

Legal Arguments And Factors In Wisconsin Criminal Cases

That Are Used To Determine the Reasonableness of Using Self-Defense

One exception to self-defense or defense of third parties is provocation: if you provoke an altercation, inciting the other person to attack you or a third party, you cannot then claim selfdefense. Otherwise, Wisconsin law allows the defender to stand his or her ground when facing an imminent attack from a third party. You do not need to retreat when someone signals they may attack you. Research demonstrates that one of the most dangerous things you can do when confronted by an aggressive attacker, particularly one who is armed, is turn your back and expose yourself to a defenseless attack in which you are essentially blind to the actions of the potential attacker. Lt. Col. David Grossman’s extensive study of how and why people kill people, ON KILLING (Ref. 7, pg. 173), explains, “We have seen before that when the [intended victim] is fleeing or has his back turned, he is far more likely to be killed. One reason for this is that in doing so he has provided both means [ability] and opportunity for his opponent to kill without endangering himself.” At the same time, if it is safe to exit and avoid a physical and potentially deadly altercation, you should do so as long as it does not put you at any risk. If you had clear and obvious opportunity to safely escape a situation and choose not to do so, that can be used against you when deciding whether your decision to use force was objectively reasonable, meaning that a jury could find that while you may have believed the use of force was necessary in the moment, that belief may not have been objectively reasonable under the circumstances. At the same time, self-defense analysis must be considered from the standpoint of the defender at the time of his or her acts under the circumstances that existed at the time, not based on second guessing, Monday-,morning quarterbacking of what someone safely removed from the situation after the fact believes he or she would have done. An expert self-defense witness will explain that when a defender is placed in a stressful situation reacting to a threat by a potentially dangerous person and may be required to make a split-second decision to save his or her life, it oftentimes is not easy to accurately assess a threat and unlike the officers who waited too long and lost their lives, the actor should always use the minimal amount of force necessary to prevent harm to themselves or others when they believe their lives are truly in jeopardy.

Another factor is the availability of other options that would have caused less harm to the aggressor or attacker. The continuum of force is another factor that can be considered when deciding the reasonableness of using force in self-defense, generally in cases involving potentially deadly force where nonlethal options were clearly and obviously available that would have prevented the potentially deadly threat. Officers are trained to use the least lethal methods to terminate a threat to themselves or others, starting with non-violent verbal commands if possible, then non-lethal actions that create the minimal amount of harm to the aggressor, and finally deadly force. Unlike trained law enforcement officers, civilians acting in self-defense generally have fewer options available. The purpose of self-defense is to not second guess a defender who through no fault of his or her own was placed into a very stressful and difficult situation, but rather to determine whether during what is oftentimes a split-second decision, the person has some justifiable reason for taking action in self-defense.

What To Do If You Have To Use Self-Defense

If you do have to use self-defense and cause injury, you should first render aid to the person harmed if it is safe to do so, and as soon as you can call 911. The focus should be on saving the person’s life. In some cases, an individual who prosecutors assume did not use appropriate selfdefense can be charged with First Degree Reckless Homicide if they could have saved the life of the person they killed but chose not to do so because they showed “no regard for human life.” If due to injuries to yourself, you need as much or more medical attention compared to the person you attacked in self-defense, you should first call 911 and only render medical aid to the other person if you can. When speaking to the 911 operator, you should clearly explain the basic facts: (1) the details needed to provide aid to the person (such as the location and injuries); and (2) who you are and the fact that you had to use self-defense (my name is _______ and I injured my attacker in self-defense; you can also clarify the type of injury). It is recommended that you do not go into further details about what happened because you may be under a lot of stress at the time, which can affect your memory of events, and therefore generally should speak to a lawyer before making a statement to police. Many police and sheriff departments have a policy of not taking a statement from officers involved in a use of force situation for that very reason. So if the 911 operator or police continue to press you for more details, you can respectfully and politely explain to them that you need to first speak to a lawyer before answering questions. If you want to answer questions without first speaking to a lawyer that is your right; however, just as police officers themselves generally speak to a lawyer before answering questions, there is nothing wrong with following the same practice because and have a constitutional right to not answer questions without first speaking to a lawyer.

How To Prepare Yourself Before Being Put In A Situation

In Which You May Be Required To Use Self-Defense

One of the best things you can do to avoid or win a criminal case involving self-defense is to attend training sessions on self-defense. This will allow you to (1) learn tactics to prevent the unnecessary use of force to avoid harm; (2) best protect yourself or others in a dangerous
situation;

and (3) if you have to use force, to be able to explain the reasons for doing so, which makes it more likely that a jury or judge will agree that your actions were objectively reasonable. That is because in Wisconsin the reasons for a person using deadly force are critical, and if you can explain that you followed the training you received in a reputable self-defense course, that tends to support your argument that your actions were reasonable. Two groups that provide selfdefense training are The Armed Citizens Legal Defense Network, https://armedcitizensnetwork.org/, and The United States Concealed Carry Association, https://www.usconcealedcarry.com/. Both groups also provide membership opportunities that provide legal insurance to help pay for the costs of what are often expensive attorney and criminal attorney expert fees in the event that you have to use force and are charged criminally. Note that even if you use justifiable use of force and are not charged with a crime, you still may be subject to a civil lawsuit from the estate of the deceased person’s family.

For many reasons, it is best to avoid the use of force; however, you should give yourself the most education and training possible to ensure you are best able to protect yourself, especially given statistics that 7 percent of officers killed in the line of duty were killed with their own weapon and many of them likely delayed too long in deciding to use self-defense.

Finally, if you are going to use a firearm for possible self-defense reasons, you should practice shooting at the range regularly and maintain the firearm. You can train with full metal jacket bullets, but you should have hollow point bullets in your pistol when using for possible selfdefense reasons because that avoids the risk of a bullet passing through the body of the attacker and accidentally striking and injuring an innocent person. Although this blog cannot provide legal advice on what to do in a specific situation, understanding Wisconsin law’s requirements for the use of self-defense and defense of others and educating yourself on the principles of self-defense can be critical in giving yourself the best opportunity to avoid unnecessary harm and/or have a successful result in a potential criminal case. Our law firm has a history of consistent success defending clients how act in self-defense from misdemeanor cases all the way up to homicide cases. We work with some of the best experts in the state of Wisconsin and the country to stay on top of the studies and best practices that have allowed us to provide the best results for our clients in complex cases involving selfdefense.