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."
