imported post
Landose_theghost wrote:
I'll be the guy biting thedirt and returning fire
. Which while we're on the subject, what are the legalities of doing so?
939.48 Self−defense and defense of others.
(1) A person
is privileged to threaten or intentionally use force against
another 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. The actor may intentionally use
only such force or threat thereof as the actor reasonably believes
is necessary to prevent or terminate the interference. The actor
may not intentionally use force which is intended or likely to cause
death or great bodily harm unless the actor reasonably believes
that such force is necessary to prevent imminent death or great
bodily harm to himself or herself.
(2) Provocation affects the privilege of self−defense as follows:
(a) A person who engages in unlawful conduct of a type likely
to provoke others to attack him or her and thereby does provoke
an attack is not entitled to claim the privilege of self−defense
against such attack, except when the attack which ensues is of a
type causing the person engaging in the unlawful conduct to reasonably
believe that he or she is in imminent danger of death or
great bodily harm. In such a case, the person engaging in the
unlawful conduct is privileged to act in self−defense, but the person
is not privileged to resort to the use of force intended or likely
to cause death to the person’s assailant unless the person reasonably
believes he or she 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.
(b) The privilege lost by provocation may be regained if the
actor in good faith withdraws from the fight and gives adequate
notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or
unlawful conduct, with intent to use such an attack as an excuse
to cause death or great bodily harm to his or her assailant is not
entitled to claim the privilege of self−defense.
(3) The privilege of self−defense extends not only to the intentional
infliction of harm upon a real or apparent wrongdoer, but
also to the unintended infliction of harm upon a 3rd person, except
that if the unintended infliction of harm amounts to the crime of
first−degree or 2nd−degree reckless homicide, homicide by negligent
handling of dangerous weapon, explosives or fire, first−degree
or 2nd−degree reckless injury or injury by negligent handling
of dangerous weapon, explosives or fire, the actor is liable for
whichever one of those crimes is committed.
(4) A person is privileged to defend a 3rd person from real or
apparent unlawful interference by another 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
believes that the facts are such that the 3rd person would be privileged
to act in self−defense and that the person’s intervention is
necessary for the protection of the 3rd person.
(5) A person is privileged to use force against another if the
person reasonably believes that to use such force is necessary to
prevent such person from committing suicide, but this privilege
does not extend to the intentional use of force intended or likely
to cause death.
(6) In this section “unlawful” means either tortious or
expressly prohibited by criminal law or both.
History: 1987 a. 399; 1993 a. 486; 2005 a. 253.
Judicial Council Note, 1988: Sub. (3) is amended by conforming references to the
statute titles as affected by this bill. [Bill 191−S]
When a defendant testified that he did not intend to shoot or use force, he could not
claim self−defense. Cleghorn v. State, 55 Wis. 2d 466, 198 N.W.2d 577 (1972).
Sub. (2) (b) is inapplicable to a defendant if the nature of the initial provocation is
a gun−in−hand confrontation of an intended victim by a self−identified robber. Under
these circumstances the intended victim is justified in the use of force in the exercise
of the right of self−defense. Ruff v. State, 65 Wis. 2d 713, 223 N.W.2d 446 (1974).
Whether a defendant’s belief was reasonable under subs. (1) and (4) depends, in
part, upon the parties’ personal characteristics and histories and whether events were
continuous. State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989).
Evidence of prior specific instances of violence that were known to the accused
may be presented to support a defense of self−defense. The evidence is not limited
to the accused’s own testimony, but the evidence may not be extended to the point that
it is being offered to prove that the victim acted in conformity with his or her violent
tendencies. State v. Daniels, 160 Wis. 2d 85, 465 N.W.2d 633 (1991).
Imperfect self−defense contains an initial threshold element requiring a reasonable
belief that the defendant was terminating an unlawful interference with his or her person.
State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
The reasonableness of a person’s belief under sub. (1) is judged from the position
of a person of ordinary intelligence and prudence in the same situation as the defendant,
not a person identical to the defendant placed in the same situation as the defendant.
A defendant’s psycho−social history showing past violence toward the defendant
is generally not relevant to this objective standard, although it may be relevant, as in
spousal abuse cases, where the actors are the homicide victim and defendant. State
v. Hampton, 207 Wis. 2d 369, 558 N.W.2d 884 (Ct. App. 1996).
The right to resist unlawful arrest is not part of the statutory right to self−defense.
It is a common law privilege that is abrogated. State v. Hobson, 218 Wis. 2d 350, 577
N.W.2d 825 (1998), 96−0914.
While there is no statutory duty to retreat, whether the opportunity to retreat was
available goes to whether the defendant reasonably believed the force used was necessary
to prevent an interference with his or her person. A jury instruction to that
effect was proper. State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App. 1999),
98−1739.
When a defendant fails to establish a factual basis to raise self−defense, prior specific
acts of violence by the victim have no probative value. The presentation of subjective
testimony by an accused, going to a belief that taking steps in self−defense was
necessary, is not sufficient for the admission of self−defense evidence. State v. Head,
2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9, 99−3071.
Although intentionally pointing a firearm at another constitutes a violation of s.
941.20, under sub. (1) a person is privileged to point a gun at another person in self−
defense if the person reasonably believes that the threat of force is necessary to prevent
or terminate what he or she reasonably believes to be an unlawful interference.
State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00−0064.
A defendant asserting perfect self−defense against a charge of 1st−degree murder
must meet an objective threshold showing that he or she reasonably believed that he
or she was preventing or terminating an unlawful interference with his or her person
and that the force used was necessary to prevent imminent death or great bodily harm.
A defendant asserting the defense of unnecessary defensive force s. 940.01 (2) (b) to
a charge of 1st−degree murder is not required to satisfy the objective threshold showing.
State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99−3071.
A person may employ deadly force against another, if the person reasonably
believes that force is necessary to protect a 3rd−person or one’s self from imminent
death or great bodily harm, without incurring civil liability for injury to the other.
Clark v. Ziedonis, 513 F. 2d 79 (1975).
Self−defense—prior acts of the victim. 1974 WLR 266.
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin’s
Law of Imperfect Self−defense Homicide. Leiser. 1995 WLR 742.
