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Thread: Stand Your Ground???

  1. #1
    Regular Member BROKENSPROKET's Avatar
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    Stand Your Ground???

    I have been working out of state since last August.

    When visiting home, my Dad said Wisconsin now has Stand Your Ground. I tried telling him that we do not, because I would know about it via FB. He said that he saw it on TV.

    Anyone know what he might have been talking about?

  2. #2
    Regular Member anmut's Avatar
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    Quote Originally Posted by BROKENSPROKET View Post
    I have been working out of state since last August.

    When visiting home, my Dad said Wisconsin now has Stand Your Ground. I tried telling him that we do not, because I would know about it via FB. He said that he saw it on TV.

    Anyone know what he might have been talking about?
    Is SYG the same as Castle Doctrine?

  3. #3
    Regular Member MKEgal's Avatar
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    No, I don't know what he's referring to,
    and
    no, they're not the same.

    CD applies to a very specific set of places, and in WI it gives the presumption that someone was in fear of death or great bodily harm if a criminal entered (or attempted to enter) illegally & by force. I think that should also include "or by stealth", unless they're going with the physics definition of force (as the WA Co. DA seemed to).

    SYG usually says that a person who is attacked, who is where s/he is legally, does not have a duty to retreat & may meet force with force. There may be some state that includes a presumption of reasonable fear of DorGBH.

    In a way, CD is sort of a specialized SYG, with the added presumption that the house occupant was in fear & was reasonable in using deadly force.
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    Quote Originally Posted by MKEgal View Post
    No, I don't know what he's referring to,
    and
    no, they're not the same.

    CD applies to a very specific set of places, and in WI it gives the presumption that someone was in fear of death or great bodily harm if a criminal entered (or attempted to enter) illegally & by force. I think that should also include "or by stealth", unless they're going with the physics definition of force (as the WA Co. DA seemed to).

    SYG usually says that a person who is attacked, who is where s/he is legally, does not have a duty to retreat & may meet force with force. There may be some state that includes a presumption of reasonable fear of DorGBH.

    In a way, CD is sort of a specialized SYG, with the added presumption that the house occupant was in fear & was reasonable in using deadly force.
    What MKEgal said. Wisconsin does NOT have stand your ground. Our law makers didn't take the Castle Doc far enough.
    JJC

  5. #5
    Regular Member sharkey's Avatar
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    Do your state laws codify "duty to retreat"? If not you have stand your ground unless there is a plethora of contrary case law.
    "Public opinion and votes have nothing to do with this. The challenge of the Court is not what they're going to do with votes. The challenge-- of the Court is are they going to protect people's rights." - Al Sharpton


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    Quote Originally Posted by MKEgal View Post
    WI it gives the presumption that someone was in fear of death or great bodily harm if a criminal entered (or attempted to enter) illegally & by force.
    I'm not sure that's quite right.

    Actor is immune from civil liability from use of force that is intended or likely to cause death or great bodily harm, if the actor
    (1) reasonably believed that the force was necessary to prevent imminent death or bodily harm to her/himself or to another person...

    There's not a presumption. There still needs to be a reasonable belief. My guess is that if you can't articulate a reasonable statement that could convince a reasonable/average person, you'd be in a heap of trouble. My layperson's opinion.
    Last edited by ksks; 01-30-2013 at 07:52 AM.

  7. #7
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by ksks
    I'm not sure that's quite right.
    Actor is immune from civil liability from use of force that is intended or likely to cause death or great bodily harm, if the actor
    (1) reasonably believed that the force was necessary to prevent imminent death or bodily harm to her/himself or to another person...
    What WI statute are you quoting, 'cause that doesn't come from 939.48 (self-defense)?
    http://docs.legis.wi.gov/statutes/statutes/939/III/48

    Never mind... entered that first phrase into the search box:
    895.62 Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity
    http://docs.legis.wi.gov/statutes/statutes/895/II/62

    Thank you for bringing that up! I learned something today.
    Now how the he|| did I manage to miss seeing that all this time?!?!?
    (Side note: hot d@mn! They got something right!)

    There's not a presumption. There still needs to be a reasonable belief.
    939.48(1m)(ar)
    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 [unlawful & forcible entry to home, car, business w/ actor being inside]

    also:

    895.62(3)
    If [unlawful & forcible entry to home, car, business w/ actor being inside] applies, the finder of fact may not consider whether the actor had an opportunity to flee or retreat before he or she used force and the 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.

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    Sorry, I should have left a reference.

    The wording "presumed" for the trier of fact in 895.62 (3) comes in to play after the establishment of reasonableness in the choice to use force in 865.62 (2).

    Again, layman's opinion...

    Other thoughts on "forcible" below too.



    2011 Wisconsin Act 94
    Castle Doctrine
    895.62

    Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity

    "Actor" means a person who uses force that is intended or likely to cause death or great bodily harm to another person.
    "Dwelling" has the meaning given in s. 895.07 (1) (h).
    Dwelling means 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. "Dwelling" includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.
    "Place of business" means a business that the actor owns or operates.

    Actor is immune from civil liability from use of force that is intended or likely to cause death or great bodily harm, if the actor
    (1) reasonably believed that the force was necessary to prevent imminent death or bodily harm to her/himself or to another person, and either of the following applies:
    (a) The person was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was there, and the actor knew or had reason to believe that an unlawful and forcible entry was occurring.
    (b) The person was in after unlawfully and forcibly entering it, the actor was there, and the actor knew or had reason to believe that the person had unlawfully and forcibly entered.

    If above applies,
    - the court may not consider whether the actor had an opportunity to flee or retreat before she/he used force.
    - and, the actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to her/himself or to another person.

    Above does not apply if:
    (1) The actor was engaged in a criminal activity or was using her/his 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 who entered or attempted to enter in the performance of her/his official duties.
    But only if:
    1. The worker identified her/himself to the actor before the actor used force.
    or
    2. The actor knew or reasonably should have known that the person entering
    or attempting to enter was a worker.

    In any civil action, if a court finds that a person is immune from civil liability, the court shall award the person attorney fees, costs, compensation for loss of income, and other costs of the litigation reasonably incurred by the actor.

    ..
    This creates new sections in:
    1. Chapter 895 Damages, Liability, and Miscellaneous Provisions
    regarding actions in court
    2. Chapter 939.48 - Self−defense and defense of others.

    ----------------------

    Use of force, force defined:

    Morrison/Slinger case. See ADA Mark Bensen's reasoning below related to "forcible" and Castle Doctrine:

    March 21, 2012

    http://www.wisn.com/download/2012/0321/30733454.pdf
    (this is a wisn link, if someone can find the county document I will link it here)

    page 23
    The person against whom the force was used must have forcibly entered the dwelling.
    - The meaning of "forcibly" is not totally clear.
    - Based on our offices review of the evidence in this case and based upon our analysis of the meaning of "forcibly", our office believes that Mr. Morrison "forcibly" entered the homeowner's residence. At a minimum, he utilized some degree of force in opening two doors to get inside the homeowner's residence and make an unlawful entry.

    page 23
    What does "forcibly" mean?

    Unfortunately, the self-defense statute does not define "forcibly". Not all words in criminal statutes or in jury instructions are given specific definitions. During deliberations in a jury trial, it is not uncommon for a jury to submit a question to the presiding judge and ask for a specific word or term to be defined. When that occurs, the presiding judge will consult with the attorneys for both sides. Sometimes a judge will provide the jury a definition of the term from the dictionary. However, more often than not, a judge (in response to a question about the meaning of a specific word) will instruct a jury to give the word the common meaning of the word as understood by the jury. In those cases, in actuality the jury is providing the meaning to the term.

    page 24
    Goes on to discuss force in robbery and purse snatching.

    Here, it is reasonable to believe that a court (or the Wisconsin Criminal Law Jury Instruction Committee which promulgates proposed instructions for trial judges) would define "forcibly" under the Castle Doctrine as using some degree of "force" which links the unlawful entry and the dwelling.

    In 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.

    Our office therefore concludes that "forcibly" does not require that any doors be broken in order for the Castle Doctrine to apply.

    It should also be noted that the Wisconsin common law has indicated that an entry into a building, obtained by fraud, is deemed a "forcible" breaking though accompanied by no actual force or violence. See Walton v. State 64 wi" z 36, 4t (1g74), which discusses state v. Lewis I 3 Wis.39l, 89 N.V/.143 (1902). If entry into a building by fraud is deemed a "forcible" entry, then certainly an unlawful entry to a residence at 2 a.m. by opening two doors, would be considered a "forcible" entry.

    page 25
    The bottom line is that no one cannot predict precisely how a court would define "forcibly" under the Castle Doctrine, nor can anyone predict whether a court would simply instruct a jury that the term "forcibly" should be given its common meaning as understood by the jury. However, it is clear that Mr. Morrison must have used some minimal "force" in opening two doors in order to gain access to homeowner's three season room/porch.

    No jury instruction for the Castle Doctrine has yet been approved by the committee which prepares and drafts proposed jury instructions for courts to use in criminal cases.

    The American Heritage Dictionary defines "forcibly" as "effected through the use of force."

  9. #9
    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by sharkey View Post
    Do your state laws codify "duty to retreat"? If not you have stand your ground unless there is a plethora of contrary case law.
    We do not have a "duty to retreat". We do not have a statutory "Stand your ground" law either. Whether you had the opportunity to flee may go into judging the reasonableness of your using deadly force.

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