Results 1 to 6 of 6

Thread: What civil or criminal protections do I have

  1. #1
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    What civil or criminal protections do I have

    I just got around to researching the Wisconsin Castle Doctrine and realized that it only covers an actor in his or her dwelling, motor vehicle, or place of business.


    What civil and criminal protections do I have if I am at a gas station and a robber enters armed and attempts to rob the store putting the clerk and me and others at risk of bodily harm and I shoot him or her.

    If this has been discussed before, please direct me to the postings.


    Castle Doctrine

    https://docs.legis.wisconsin.gov/201...ed/acts/94.pdf

  2. #2
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    No protection outside of his or her dwelling, motor vehicle, or place of business

    Apparently, the current Wisconsin Castle Doctrine don't cover a person in any other place he or she has a right to be besides his or her dwelling, motor vehicle, or place of business or the Wisconsin Doctrine would have stated the following which is what is included in the ALEC Model:

    ALEC Model URL

    http://alecexposed.org/w/images/7/7e...ct_Exposed.PDF


    A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.


    And


    A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony.
    ALEC Model


    Castle Doctrine Act


    SummaryThis act authorizes the use of force, including deadly force, against an intruder orattacker in a dwelling, residence, or vehicle under specified circumstances.It further creates a presumption that a reasonable fear of death or great bodilyharm exists under these specific circumstances, and declares that a person has noduty to retreat and has the right to stand his or her ground and meet force withforce if the person is in a place where he or she has a right to be and the force isnecessary to prevent death, great bodily harm, or the commission of a forciblefelony.
    Finally, the act provides immunity from civil prosecution or civil action for usingdeadly force, defines the term “criminal prosecution,” and authorizes lawenforcement agencies to investigate the use of deadly force while prohibiting theagencies from arresting a person in these circumstances unless the agencydetermines that there is probable cause that the force the person used wasunlawful.
    Model Legislation
    Legislative Resolution and Intent
    WHEREAS, the Legislature of [insert state/commonwealth name] finds that it isproper for law-abiding people to protect themselves, their families, and others fromintruders and attackers without fear of prosecution or civil action from acting indefense of the themselves and others; and
    WHEREAS, the “Castle Doctrine” is a common-law doctrine of ancient origins thatdeclares that a person’s home is his or her castle; and
    WHEREAS, [insert appropriate reference to the State/Commonwealth Constitutionthat provides for the right of citizens to bear arms] guarantees the right of thepeople to keep and bear arms; and
    WHEREAS, the persons residing in or visiting this [state/commonwealth] have aright remain unmolested within their homes or vehicles; and
    WHEREAS, no person or victim of crime should be required to surrender his or herpersonal safety to a criminal, nor should a person or victim be required toneedlessly retreat in the face of intrusion or attack;*This model is based upon Florida legislation enacted April 26, 2005.
    BE IT RESOLVED, the Legislature of [insert state/commonwealth name] herebyenacts the following:
    Section 1. {Home Protection, Use of Deadly Force, Presumption of Fear of Deathor Harm}
    1. A person is presumed to have held a reasonable fear of imminent peril of deathor great bodily harm to himself or herself or another when using defensive forcethat is intended or likely to cause death or great bodily harm to another if:
    a. The person against whom the defensive force was used was in theprocess of unlawfully and forcefully entering, or had unlawfully orforcefully entered, a dwelling, residence, or occupied vehicle, or if thatperson had removed or was attempting to remove another against thatperson’s will from the dwelling, residence, or occupied vehicle; and
    b. The person who uses defensive force knew or had reason to believethat an unlawful and forcible entry or unlawful and forcible act wasoccurring or had occurred.
    2. The presumption set forth in Subsection (1) does not apply if:
    a. The person against whom the defensive force is used has the rightto be in or is a lawful resident of the dwelling residence, or vehicle,such as an owner, lessee, or titleholder, and there is not an injunctionfor protection from domestic violence or a written pretrial supervisionorder of no contact against that person; or
    b. The person or persons sought to be removed is a child, grandchild, oris otherwise in the lawful custody or under the lawful guardianship of,the person against whom the defensive force is used; or
    c. The person who uses defensive force is engaged in a criminalactivity or is using the dwelling, residence, or occupied vehicle tofurther a criminal activity; or
    d. The person against whom defensive force is used is a lawenforcement officer, as defined in [insert appropriate reference tostate/commonwealth code, which defines the term “law enforcementofficer” or similar], who enters or attempts to enter a dwelling,residence, or vehicle in the performance of his or her official duties andthe officer identified himself or herself in accordance with applicablelaw, or the person using force knew or reasonably should have knownthat the person entering or attempting to enter was a law enforcementofficer.
    3. A person who is not engaged in an unlawful activity and who is attacked in anyother place where he or she has a right to be has no duty to retreat and has theright to stand his or her ground and meet force with force, including deadly force ifhe or she reasonably believes it is necessary to do so to prevent death or greatbodily harm to himself or herself or another, or to prevent the commission of aforcible felony.
    4. A person who unlawfully and by force enters or attempts to enter a person’sdwelling, residence, or occupied vehicle is presumed to be doing so with the intentto commit an unlawful act involving force or violence.
    5. As used in this section, the term:
    a. “Dwelling” means a building or conveyance of any kind, includingany attached porch, whether the building or conveyance is temporaryor permanent, mobile or immobile, which has a roof over it, including atent, and is designed to be occupied by people lodging therein at night.
    b. “Residence” means a dwelling in which a person resides eithertemporarily or permanently or is visiting as an invited guest.
    c. “Vehicle” means a conveyance of any kind, whether or notmotorized, which is designed to transport people or property.
    Section 2. {Immunity from Criminal Prosecution and Civil Action}
    1. As used in this subsection, the term “criminal prosecution” includes arresting,detaining in custody, and charging or prosecuting the defendant.
    2. A person who uses force as permitted in Section (1) [and other state codes whichare affected/amended by this legislation and which refer to the use of forceincluding deadly force] is justified in using such force and is immune from criminalprosecution and civil action for the use of such force, except when:
    a. The person against whom force was used is a law enforcementofficer as defined in [insert appropriate reference tostate/commonwealth code, which defines the term “law enforcementofficer” or similar], who was acting in the performance of his or herduties and the officer identified himself or herself in accordance withapplicable law; or
    b. The person using force knew or reasonably should have known thatthe person was a law enforcement officer.
    3. A law enforcement agency may use standard procedures for investigating theuse of force as described in subsection (2), but the agency may not arrest theperson for using force unless it determines that there is probable cause that theforce that was used was unlawful.
    4. The court shall award reasonable attorney’s fees, court costs, compensation forloss of income, and all expenses incurred by the defendant in defense of any civilaction brought by a plaintiff if the court finds that the defendant is immune from
    prosecution as provided in subsection (2).





    Quote Originally Posted by cowboyridn View Post
    I just got around to researching the Wisconsin Castle Doctrine and realized that it only covers an actor in his or her dwelling, motor vehicle, or place of business.


    What civil and criminal protections do I have if I am at a gas station and a robber enters armed and attempts to rob the store putting the clerk and me and others at risk of bodily harm and I shoot him or her.

    If this has been discussed before, please direct me to the postings.


    Castle Doctrine

    https://docs.legis.wisconsin.gov/201...ed/acts/94.pdf

  3. #3
    Regular Member MKEgal's Avatar
    Join Date
    Jan 2010
    Location
    in front of my computer, WI
    Posts
    4,426
    939.48 is only Castle Doctrine, not Stand Your Ground.
    That's one thing that needs to be corrected. It does say that the court can't consider the possibility of retreat and must presume that the person thought the force used was necessary...
    IF you're in one of those places
    AND the criminal unlawfully and forcibly entered.

    895.62 provides civil immunity also IF the criminal unlawfully and forcibly entered one of those places.

    Several things I see need to be changed.
    1) providing protection against criminal suits; if someone asserts a claim of self-defense, is put on trial, & the jury says it was self-defense, the gov't division responsible must reimburse all expenses, double, plus a $10,000 fine paid to the citizen for the stress & character slander. I'd like to see similar double jeopardy + fine for the civil suits.

    2) as CD is expanded to SYG, expand the civil & criminal protection.

    3) change the entry method to cover stealth, and specify that "forcibly" means the use of any force, however small, as in opening a window, door, screen, gate, etc. The WA county DA did a good job of this in the first home invasion shooting which could have been covered under CD, though he also said that simple self-defense applied.

    Here's what UT uses:
    [the entry is] "unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony"
    In both WI & UT, burglary is a felony.

    *****

    http://docs.legis.wi.gov/statutes/statutes/939/III/48
    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 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.

  4. #4
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by cowboyridn View Post
    What civil and criminal protections do I have if I am at a gas station and a robber enters armed and attempts to rob the store putting the clerk and me and others at risk of bodily harm and I s
    You are privileged to use deadly force to defend yourself or a 3rd party from imminent danger of death or great bodily harm...
    "Castle" doctrine does not apply but standard WI Self Defense does. "Castle" Doctrine is not a separate law. 939.48 covers all self defense using deadly force. There is simply a presumption that the force is reasonable under specific circumstances...
    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.

  5. #5
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Thanks

    Thanks for the info


    Quote Originally Posted by Interceptor_Knight View Post
    You are privileged to use deadly force to defend yourself or a 3rd party from imminent danger of death or great bodily harm...
    "Castle" doctrine does not apply but standard WI Self Defense does. "Castle" Doctrine is not a separate law. 939.48 covers all self defense using deadly force. There is simply a presumption that the force is reasonable under specific circumstances...

  6. #6
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Thanks

    Thanks for the info



    Quote Originally Posted by MKEgal View Post
    939.48 is only Castle Doctrine, not Stand Your Ground.
    That's one thing that needs to be corrected. It does say that the court can't consider the possibility of retreat and must presume that the person thought the force used was necessary...
    IF you're in one of those places
    AND the criminal unlawfully and forcibly entered.

    895.62 provides civil immunity also IF the criminal unlawfully and forcibly entered one of those places.

    Several things I see need to be changed.
    1) providing protection against criminal suits; if someone asserts a claim of self-defense, is put on trial, & the jury says it was self-defense, the gov't division responsible must reimburse all expenses, double, plus a $10,000 fine paid to the citizen for the stress & character slander. I'd like to see similar double jeopardy + fine for the civil suits.

    2) as CD is expanded to SYG, expand the civil & criminal protection.

    3) change the entry method to cover stealth, and specify that "forcibly" means the use of any force, however small, as in opening a window, door, screen, gate, etc. The WA county DA did a good job of this in the first home invasion shooting which could have been covered under CD, though he also said that simple self-defense applied.

    Here's what UT uses:
    [the entry is] "unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony"
    In both WI & UT, burglary is a felony.

    *****

    http://docs.legis.wi.gov/statutes/statutes/939/III/48
    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 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.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •