WI Statutes and Use of Force...

[Interceptor_Knight]

...This is hindsight again, the totality of circumstances perceived at the time have the weight.

The jury believes themselves to be reasonable people, therefore, their own personal standard of what would be reasonable at the time is relevant. Like it or not, the jury is looking at the totality of circumstances at the time and is going to make a hindsight evaluation. If the jury believes that a lesser force would have been more reasonable and that a reasonable person would see that as an option then they will not see the use of deadly force as justifiable.
This is why dedicated concealed carry classes spend more time on the law and use of force than they do with weapon familiarity. It is easy to teach someone how to shoot but much more difficult to teach them when not to shoot.

 

[protias]

That one talks about how standing your ground vs. retreating goes to the reasonableness standard right? I can't find the .pdf of the case but found a quote in State v. Wegner.

That is correct.

 

[Interceptor_Knight]

Wenger used deadly force instead of trying to retreat and was convicted which was upheld when appealed

The point I think is Wisconsin does have an objective portion to their self-defense law, so it is not a matter of what Mr. Wenger thought was reasonable entirely that's the issue. The issue is whether a reasonable person confronted with this situation would have acted in the fashion Mr. Wenger did. I think therefore the portion of retreat instruction in this case is relevant to the case as set forth ….

No arguable basis exists for challenging the trial court's instructions. The statutory privilege of self-defense requires that the actor refrain from intentionally using force 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. Section 939.48(1), STATS. While Wisconsin has no statutory duty to retreat, whether the opportunity to retreat was available may be a consideration regarding whether the defendant reasonably believed the force used was necessary to prevent or terminate the interference. See Herriges, 155 Wis.2d at 303, 455 N.W.2d at 638. Evidence was presented that Wenger may have had an opportunity to retreat, and under Wisconsin law, retreat goes to the reasonableness of the defendant's conduct. See id.; see also WIS J I—CRIMINAL 810 cmt.

Here, the trial court used the pattern instruction to inform the jury of the applicable law on retreat. The jury instruction put squarely before the jury the disputed issue of whether Wenger's use of deadly force was reasonably necessary to "prevent or terminate the interference," as there was evidence that Wenger may have been able to retreat safely into his house and lock the door. The feasibility of retreat goes to the reasonableness of Wenger's belief that he needed to shoot Mueller to prevent or terminate the interference.

 

[Brass Magnet]

The jury believes themselves to be reasonable people, therefore, their own personal standard of what would be reasonable at the time is relevant. Like it or not, the jury is looking at the totality of circumstances at the time and is going to make a hindsight evaluation. If the jury believes that a lesser force would have been more reasonable and that a reasonable person would see that as an option then they will not see the use of deadly force as justifiable.
This is why dedicated concealed carry classes spend more time on the law and use of force than they do with weapon familiarity. It is easy to teach someone how to shoot but much more difficult to teach them when not to shoot.

Once again, the jury will be instructed to decide if a reasonable person could have reasonably acted in the manner that the defendant did; at the time. What they decide is out of our control; yes, but the law is the standard. Jury's are smarter than you seem to think and are well instructed on how to decide the matter of law at hand. I can nearly guarantee that they will be instructed properly to put themselves in a reasonable person shoes at the time of the incident. I sure as heck wouldn't want you on a jury though if you come in with the preconceived notions you seem to have.

I'm beginning to believe that "dedicated concealed carry courses" are more likely to produce people who believe they have nothing left to learn just like certain schools these days. I haven't seen anyone advocate using deadly force unless they feel it's completely justified. As for the case that started this conversation, we have no idea of the facts so conjecture is useless.

Wenger used deadly force instead of trying to retreat and was convicted which was upheld when appealed

There was more reason than just retreat in Wegner, if you read the case.

 

[Trip20]

This is a good perspective: Ability, Opportunity and Jeopardy

 

[Interceptor_Knight]

..Jury's are smarter than you seem to think and are well instructed on how to decide the matter of law at hand. I can nearly guarantee that they will be instructed properly to put themselves in a reasonable person shoes at the time of the incident. I sure as heck wouldn't want you on a jury though if you come in with the preconceived notions you seem to have....

I have served on juries and have experienced how other people react to jury instruction and their opinion of what is reasonable. Everyone comes in with preconceived notions and often must be convinced otherwise.

 

[BROKENSPROKET]

A single blow to the head can kill or permanently injure someone. In fact, an intentional blow to the head can be (and has been) considered as intent to use deadly force.

And again, you have no idea what kind of physical or hand to hand combat training the other person has had. If you wait until the point that physical contact has been made, it may already be too late.

I am with you 100% on this. I saw a guy get killed with a single punch to the nose.

If someone shows aggression towards me and does not stop with a verbal warning and they are closer that 25 feet, I will draw at the low ready. I will raise and fire if I need to stop the threat. Anyone who does not back down from a drawn handgun is crazy and is intent to do great bodily harm.

One punch or laceration from a concealed knife and I could be dead.

 

[BROKENSPROKET]

there are a couple of non-lethal options one can use based on the evaluation of the circumstances:

Hand on gun, still in holster, order assailant to stop!

Draw and go to ready, low position. (gun in low position, near body, pointed at ground)

draw, but do not fire, and hope like hell they get the hint, and retreat.

EXACTLY that!!!!!!!!

Drawing a handgun can be a non-lethal show of potential lethal force.

 

[Captain Nemo]

I_K:

I'm surprised you didn't bring up the complication of verbal and physical provocation.

Also from State v Nollie:

¶19. To sustain a claim of self-defense the defendant must show that (1) the defendant had an actual and reasonable belief that there was an actual or imminent unlawful interference with the defendant's person; (2) the defendant had the actual and reasonable belief that the threat or use of force was necessary; and (3) that the defendant only used such threat or force as he actually and reasonably believed was necessary. Wis.Stat.§939.48(1).

In other words when a person claims the privilege of self defense he/she must prove themself innocent. The prosecution doesn't need to prove much of anything. The prosecution only needs to prove a homicide was committed and that the defendant did the killing. The defendant must prove the shooting was justified. There is no presumption of innocense. Only in the police state of Wisconsin, and one huge reason we need "stand your ground" legislation.

anyone want to read more on the privilege of self defense read State v Nollie and State v Dundon.

 

[Interceptor_Knight]

... I saw a guy get killed with a single punch to the nose...

I saw that scene with Nicolas Cage in Con Air too...:dude:

 

[Interceptor_Knight]

If someone shows aggression towards me and does not stop with a verbal warning and they are closer that 25 feet, I will draw at the low ready. I will raise and fire if I need to stop the threat. Anyone who does not back down from a drawn handgun is crazy and is intent to do great bodily harm. One punch or laceration from a concealed knife and I could be dead.

Your fear of a single punch is not reasonable and does not justify the use of deadly force in accordance with WI law in my opinion. The odds of getting struck by lightning are greater than those of killing someone with a single punch to the head including the nose.
You can not infer intent base exclusively on the fact that they will not comply with your order to stop even with your handgun drawn.

 

[BROKENSPROKET]

You can not infer intent base exclusively on the fact that they will not comply with your order to stop even with your handgun drawn.

I am not. Intent is already present to give a verbal waring and draw. What happens after that adds to the reasonableness that I am in fear of my life if the perp does not comply. If the perp complies, then intent and reasonble fear of life is no longer present.

 

[GlockMeisterG21]

Being able to justify using deadly force against an unarmed person is not hard. Let's look at this simple scenario. Fyi, I am an AACFI certified Firearms Instructor. Those of you who have taken an AACFI course should recognize this.

It is late at night and you just ran out of gas in a bad looking neighborhood. You now have to walk a mile or so to a gas station you think you passed. You are carrying concealed. As you are walking you see a man start crossing the street heading straight for you from let's say 50 ft away. As he gets closer, at say 40 ft he asks if you have a light. You reply that you don't smoke. He continues to approach anyway, saying something like "come on man, help me out" or whatever. At 30ft you subtly place your hand on your weapon. You do this because now he has broken the distance established by the Tueller drill. (for those of you who don't know what that is you really need to look it up) He continues to approach saying whatever at this point, it really doesn't matter because he has no reason to approach you other than to do you harm. At 20ft you assume a more defensive posture, put you hand out and say STOP BACK OFF or other things to that effect. He continues towards you and around 15ft you draw your firearm and present it still shouting commands at him to stay away. You also begin to retreat, creating distance between you and your attacker. He still continues to advance and about 10ft away you discharge your firearm. Let's skip the aftermath other than to say that he was found to be unarmed. Here's how this was a justified shooting.

You established that you were a reluctant participant. You did not willingly go into that neighborhood, nor did you at any time show that you wanted to be in that situation. In short you did not seek out that conflict and it found you anyway.

You established that you were in imminent fear of death or great bodily harm. This fear was due to the fact that he continued advancing for no reason. This implies evil intent. The fact that even after you warned him off and presented a firearm he continued to advance on you. This implies that he is either insane or assuming that your bluffing and won't shoot him because he appears unarmed. The fact that if you let him get upon you that you would now have to retain your firearm and fight him off with only one hand. The fact that he could have easily been armed and just chose not to pull something out until he was closer, lulling you into a false sense of security. Remember every conflict you are in is an armed conflict even if the other guy is unarmed. That firearm can be taken from you and used against you if you are not able to retain it. This also helps to establish the next criteria.

You established that no lesser force would due. You had no other weapons other than your hands/feet and your firearm. Since you were not confident that you could retain your firearm and fend off the attacker one-handed you only had one other option.

You established that retreat was not practical. You tried to retreat and he continued to advance upon you. Turning and running was not a valid option because you do not know if he has a gun or not and could just easily shoot you in the back. Certainly his behavior implied that he might be armed. He was continuing to advance upon you even after you presented your firearm.

Under these circumstances your shooting was justified.

Now we can play the "what if" game until the end of time but if you meet those four criteria then you are justified. Please try and remember that his is just an example and was designed to show you how you can justify those four criteria.

 

[AaronS]

Your fear of a single punch is not reasonable and does not justify the use of deadly force in accordance with WI law in my opinion. The odds of getting struck by lightning are greater than those of killing someone with a single punch to the head including the nose.
You can not infer intent base exclusively on the fact that they will not comply with your order to stop even with your handgun drawn.

At my age, and with my back problems, one good punch that knocks me down might do a little more harm then you seem to be thinking about.
That one good punch from you might just put me in the hospital for weeks.
Also, with my back issue, I would bet I can not out run you.
Now think if you and a friend wanted to hurt me. 2 to 1... I hate them odds. I bet I end up hurt... Bad...

So what would you do if you were me?

No matter how you look at it, I would still be in a real bad spot. I would do my best not to get hurt...

 

[E6chevron]

GlockMeisterG21,

Thanks for the excellent scenario walk-thru and evaluation of tactics and use-of-force considerations.

The portion of the scenario that you were not specific on, would that involve .45 caliber 230 grain projectiles, changing the BG's priorities?

 

[Interceptor_Knight]

.....You established that you were in imminent fear of death or great bodily harm. This fear was due to the fact that he continued advancing for no reason. This implies evil intent. The fact that even after you warned him off and presented a firearm he continued to advance on you. This implies that he is either insane or assuming that your bluffing and won't shoot him because he appears unarmed. The fact that if you let him get upon you that you would now have to retain your firearm and fight him off with only one hand. The fact that he could have easily been armed and just chose not to pull something out until he was closer, lulling you into a false sense of security. Remember every conflict you are in is an armed conflict even if the other guy is unarmed. That firearm can be taken from you and used against you if you are not able to retain it. ....

Your imminent fear of death was based on the fact that your personal space was being infringed and the chance that he may take your firearm and use it against you?

.....You established that no lesser force would due. You had no other weapons other than your hands/feet and your firearm. Since you were not confident that you could retain your firearm and fend off the attacker one-handed you only had one other option....

You were forced to use your firearm because you chose to carry a firearm and you had already removed it from its holster?


It appears that your scenario and justification for the use of deadly force is being put to the test this week in Milwaukee. There is not much more to say on the matter until the jury rules.

 

[Interceptor_Knight]

At my age, and with my back problems, one good punch that knocks me down might do a little more harm then you seem to be thinking about.
That one good punch from you might just put me in the hospital for weeks.
Also, with my back issue, I would bet I can not out run you.
Now think if you and a friend wanted to hurt me. 2 to 1... I hate them odds. I bet I end up hurt... Bad...

So what would you do if you were me?

No matter how you look at it, I would still be in a real bad spot. I would do my best not to get hurt...

You can obviously justify the use of deadly force sooner than I can in a confrontation.....

 

[AaronS]

You can obviously justify the use of deadly force sooner than I can in a confrontation.....

I hope I never have to find out.
To be honest, I would still try to run first. I bet I go a little faster when my life is at stake.

Bottom line, I feel we need a real "stand your ground" law.

 

[Interceptor_Knight]

.. Bottom line, I feel we need a real "stand your ground" law.

100% Agreed...

 

[Fast Ed]

What about my kids?

All of the discussion so far on this thread is making the assumption that you are alone and have the ability, although maybe not the opportunity, to retreat. I am carrying more for the protection of my wife and kids than for me. I am 56, but still in good enough condition to cause the typical predator to think twice about taking me on. I like to think they would look for easier prey. Suffice it to say that if I was with my family, retreat becomes problematic as my wife and kids cannot run, or backpedal, as fast as I can. Reasonability (?) and standing my ground take on completely different meanings when I am standing between a creep and my kids. No way he gets past me. No way he gets close. If it comes down to keeping my wife and kids safe from harm, I'll make sure they live and take my chances with the jury.

Fast Ed

Fast Ed