I'll keep this short and sweet. Wife and I are trying to sell our condo and we've started to have quite a few open houses. We had one yesterday from 10:30-2pm.

Nobody showed up (no surprise), and at ~10:30 last night my wife shook me (we had just gone to bed) saying "someone is trying to get in!". I quickly got up but by that time the dog started barking, and by the time I was at the door, whomever it was, was gone. I went and did a perimeter check, and it must have been someone on foot, as I couldn't see anyone. Thought about calling the local PD, but figured it would do no good and they'd just write a report. (maybe I should have?)

Main question is, if someone would have gotten in, what are the issues at hand for lethal force? Shoot first and ask questions later, or make sure the perp has a firearm?

Thanks for the advice. I looked through the sticky, but couldn't find something pertaining to this. If I need to consult a lawyer, let me know. Also if I should still call the PD today and file a report.

EDIT: just had an officer come over and made the police report. Talked quite a bit and she told me that if it were to happen again, I do have a right to protect my property and our life, just to make sure when we call 911 to make sure to tell them that I have a firearm so there is no confusion.

Any other discussion would gladly help though.

weapon, intent, delivery system
if they have those three things lethal force is justifiable
if they are not armed hold them at gun point if you can, and call 911
tell dispatch you have them at gun point, might get a LEO their a little faster.

AP

pretty much what I figured. thnx

Now it is correct, I believe. I am not positive on this but IIRC you cannot take a life in WI to protect property.

exactly why I was asking. I thought that life had to be in danger to use lethal force. Thought she might have had it wrong, wanted to check with you guys.

tell you what though, you never realize how hard it is to think when the situation actually occurs. (insert random training comment here, lol)

Correct..

Are you sure that 939.49 applies to home as opposed to cars, backpacks, wallets, etc?

Until we have a castle doctrine type law it does.

DP, consider this your "random training comment" wake-up call.  

Well, hang on, one still has 939.45 and  939.47, privilege and necessity.

I don't have the time at the moment to comb through the caselaw, but I'd be curious to hear from someone who has.

edit: I'd also note that to the best of my knowledge, Wisconsin has no duty to retreat doctrine.

Perhaps I should be more clear...

Depending upon how it is written, castle doctrine could give a carte blanche to homeowners to shoot on site anyone found inside his dwelling who is there without owner's consent.

Otherwise, using privilege/necessity my sense is that unless you shoot the suspect in the back, employ more force than necessary to neutralize the situation, etc, I think you're on solid legal ground BEFORE looking to the caselaw.

Disclaimer: this is not legal advice

You are on solid legal ground unless you discharge or even draw your firearm.......

It's been hashed out here in the HTF before.

Even in your own home, deadly force is not justified to protect property.  IOW: You cannot legally point a gun a someone who is stealing your TV, or otherwise not threatening you with D/GBH.

Deadly force needs ability, opportunity and intent no matter where you are at the time. Further:

Any use of force is unlawful.  The fact that your use of some force (up to and including DF) may be privileged conduct by the statutes cited is simply an affirmative defense to prosecution.

That would be lawyer speak for "You may not do the time, but you will take the ride".

Again, I'm no so sure that is correct.  I'll try to scoop up some case law as time allows this week.

FMD is correct.  You can't shoot someone just because they're taking your TV out the front door.  You have to be able to articulate how you or someone else were in imminent risk of death or great bodily harm, and how lethal force was the only reasonable option.

And, frankly, I think that's how it should be.  It's not worth ending someone's life over a lousy TV.  We're the good guys, remember?  Life has value.

(Neo, please do search around.  Bet you a donut I'm right.  You can pay me when we meet sometime.)    

From the annotations of 939.48:



ETA: Privileged conduct is an affirmative defense.  If you don't know what an affirmative defense is, click here.

glenn_r

I am not disputing the removal of moveable property... I am talking about the homeowner comes downstairs, finds the suspect standing in his/her kitchen.  The lights are low and between that and the suspect being largely obstructed from clear LOS it is impossible to tell if the suspect is armed.


I am not talking about situations where someone is busting into your car or running out of the front door with the tv.  

Rather, the run in to a criminal trespasser with intent unknown.  That's where I think the privilege/necessity may apply.

edit: I'll further qualify by adding again from a post I made before that certain restrictions would likely still apply.  IE, don't shoot the suspect in the back, do not employ more than lethal force.  So don't unload a whole magazine if that is not necessary.  Don't go up and slit the throat or any other "finishing move."  Etc.

Well yes it is an affirm. defense... but how does that change anything?  Burden is still on the state to overcome the defense as almost any other affirm. defense in a criminal setting (some exceptions to apply, such as insanity, etc).


edit: I do know what an affirmative defense is. ;)

Maybe you don't.  By "affirmative" it means that you affirm (corroborate or agree with - whatever you want to call it) the State's factual evidence against you, however by affirming those facts, you may now legally claim that your conduct was "privileged" (to use the statutory language).  Your trial then becomes a matter of determination by a jury to see if you satisfied the criteria for privileged conduct as set forth by the statute.

Absent a clear articulation of why you felt threatened by death or GBH justifying your actions, you will be found guilty - since you already admitted to committing the crime.

Just so we're clear, here's your original question:



The answer is "yes".  If you use DF inside your home - or anywhere else - you will only prevail on a  "privileged conduct" affirmative defense if you can articulate a specific threat of death/great bodily harm.

ETA:



Can you articulate that you, as a reasonable man, were in fear of death or great bodily harm from someone who had ability opportunity and intent to cause you or someone else death or great bodily harm?  If you can not, then introducing deadly force into the situation would not be privileged conduct under the statute.  If you can, then even a mag dump and anchor shot might be justified.

Haha, thanks again FMD.  I'm pretty sure that I do know what an affirmative defense is (it's part of my job).  In civil courts, the defendant there needs to prove their affirmative defense.  In criminal law, the state must overcome most affirmative defense.

As an example... 940.01(3)

"(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1)."
http://www.legis.state.wi.us/Statutes/Stat0940.pdf


Now that we've cleared that up... ;)

As to your second point about privilege: yes, that is exactly what I was asserting.  

I think you can try to explain the mag dump, but it's going to hurt you at trial.  I can just imagine the questions on cross already.

I'll have to plead ignorance on the term "anchor shot."  Is this a shot delivered in an attempt to curve any attempt by the suspect to move?

Excellent, but that isn't at issue here.  What is at issue is your ability (as hypothetical defendant) to convince a jury that you had a reasonable belief that the guy you shot posed a threat of death/great bodily harm.

Articulating that the bad man that you pointed a gun at was some unidentified shadowy figure in the kitchen probably isn't going to cut it in any number of jurisdictions in Wisconsin.  If you don't think that's the case, you need to spend more time in the gallery at criminal trials.  ETA: If you think juries at civil trials are clueless...



That's why you hire experts for trial.  Tache-Psyche effect FTW.



Yes, an "anchor shot" might be used to curb further activity from a downed threat (to put it mildly).  "The bad man I shot to the ground was still a threat to my safety" might be a reasonable explanation.

Like I said, we've been through this here in the HTF several times (including me playing Devil's Advocate to Glenn_R's righteous prosecutor).  Morally, I may have a difference of opinion with the law, but as it stands, one cannot lawfully use deadly force outside the threat of death or great bodily harm in WI, period.  That period is final, with no exception for your own dwelling.

Haha, you're making me want to keep looking for cases. ;)  I'll try to take the points in turn:


1. re. the status of the law by case law
I cracked open my westlaw account and was flipping through some cases, found a few tangential ones, I'll keep you updated.


2. re. my familiarity with criminal juries
Yes: I am familiar with criminal juries and judges.


3. re. the status of the law by statute
The language in the statute is unambiguously clear: the state bears the burden to disprove any affirmative defense, period.  If the defense attorney fails to make this fact emphatically clear to the jury, then it's time for a Machner hearing.

Overcoming self-defense arguments can be a major problem in many criminal prosecutions.  I don't say that in a "screw the victim" way, but rather to overcome the decision to raise self defense where the state can prove the elements of the homicide.

edit: as an additional note, I'm curious when/if you're going to stop thinking that I know nothing about criminal law.  ;)

There are about a dozen that are old enough not to be had via .pdf on the WISC site.  The few that I have looked at (other than Watkins) seem to have little or no bearing on what we are talking about though.



I'm not sure if you're arguing with me or trying to make my point for me.  FWIW,  the two statements above are at odds ideologically.  It's the latter that matters from a practical standpoint.

You seem to be missing the practical parts of dealing with human nature and a zealous prosecution (or maybe my points are too obtuse?).  We all understand "reasonable doubt" and the idea of being innocent unless proven guilty to that standard.  In reality (and especially in a case where you are admitting to the key elements of the offense), a jury's decision will be based solely on who makes the better argument.  Remember, by asserting privilege, you've already admitted to the material facts of the homicide.  I'm fairly certain the prosecution will bring that up during closing.  In short, if the shoot isn't a slam-dunk case of self defense, you will have some serious issues convincing a jury not to send you to jail for a loooooong time.



You may be a crackerjack ADA (or land shark) somewhere, but your posts in this thread indicate that your view of these particular statutes is overly broad and your faith in our jury pool's ability to determine guilt beyond a reasonable doubt would make Polyanna proud.  I mean absolutely no offense when I say that: I wish I still had the ability to be hopeful when it comes to justifying righteous actions in front of a jury of our "peers".

Forgive me if I have come across as demeaning.  I have no standing* to be lecturing anyone on the intricacies of dealing with the court, civil or criminal.












*ETA: My lack of a JD notwithstanding, I'd counsel you to seek the knowledge of those you work with.  The opinions I've offered are backed by applicable case law as well as LE that are sort of familiar with the topic of the use of deadly force.

There is no such thing as more than lethal force.



Once you hit lethal force it doesn't particularly matter if you shoot them once in the foot or a million times in the face.



 

Good luck explaining why shot #17 to the face was necessary for self defense...

That said: I never said that shooting the foot was not lethal force.  My point is that if you "anchor shot" the suspect, then the natural line of argument that will follow is that if you really feared for your life why did you not just shoot them in the chest/head?  It may work in your kitchen, but it will cause headaches for your defense attorney(s) in court (again, I'm not saying one could not still prevail on self defense/necessity/privilege, only saying that it makes things more difficult).

FMD,

Well, I think our differences (if any... still trying to sort that out ) boil down to who we view as having the burden.  

(Note:  I hate putting words in other people's mouths but I'm going to do it here anyways to make sure that I accurately understand your position)

1) Burden
Correct me if I am wrong, but it seems to be your belief that the defense must prove their affirmative defense against the state?

I am saying that the above statement is incorrect.  Instead, it is the state's burden to prove beyond a reasonable doubt that either there is no affirmative defense, the elements for it were not met, or that it does not apply, etc.  

Ergo, I say the state has the burden and you indicate that the defense does.


2) Practically speaking
Now, I think (once more, correct me if I am wrong) you may also be saying that the above distinction is purely academic: the jury will still treat the defense as having the burden whether they legally do or do not.

My response is that any defense attorney worth their salt, especially one working with such high grade felonies, should do two things: i) make it entirely clear that the burden is on the state to disprove any defense and not on the defendant to prove a defense; and ii) that this burden, 'beyond a reasonable doubt', is a tremendously high standard, in fact the highest legal standard in the American legal system.

Additionally, while I do not have the judge's jury instructions for 1st degree homicide, etc, in front of me now my hunch is that the judge would loosely corroborate this to the jury and again emphasize that the burden is with the state.


3) Everything else
i.
Yeah, I'm going to keep looking around for case law on the subject.  

ii.
Haha, no, not demeaning.  I just wanted to advance the conversation.  I cannot blame you for assuming that the anonymous person on the internet does not know much about the law, let alone its practical application.

iii.
It seems that you may be a LEO?  If so, then you've probably testified at enough motions, prelims, trials, etc, to get at least a sense of what's up with commissioners, judges and juries.  So that certainly gives you a high grade of qualification to speak to the subject especially compared to the random sampling of folks off the street.

Ok, so I took a moment to read the wikipedia blurb on affirmative defense.  It seems to conflate matters of criminal and civil law.  For instance, it discusses subject matter jurisdiction which is entirely a civil law concept and within the same undistinguished article it flips back to criminal law.

To restate what has already been said numerous times:

Civil law
Burden rests with the defendant (in all the jurisdictions that I am familiar with, including federal courts)

Criminal law
Burden rests with the state (in Wisconsin at least)

Be careful about using wikipedia for legal questions, states can vary greatly.

The Wisconsin Supreme Court said:

"To sum up, under the present statutes, to prove first-degree intentional homocide, the state must prove that the defendant caused the death of another with intent to kill.  Wis. Stat. Section 940.01(1).  If perfect self-defense is placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that one of the defendant's beliefs was not reasonable.  Wis. Stat. Section 939.48(1)."  State v. Head, 255 Wis.2d 194, 230 (2002) (emphasis added) (opinion available here).

So if the defendant claims perfect self defense as a defense to the murder charge, then the defendant has to come up with enough evidence to place it in issue.  Once it is in issue, then the state has to prove that defendant was unreasonable (e.g. state must prove that the defendant did not reasonably fear for their life).

Neo,

You're asking if you can legally shoot a person you haven't identifed, who is not attacking you, who has demonstrated no hostile intent, as far as you know isn't armed, and from whom you have cover or concealment...shoot them just because they're in your home??

Umm, no, you can't do that.  

Wisconsin does not have a "shoot anyone in your home" castle doctrine.  On the flip side, Wisconsin doesn't have a duty to retreat.  But claiming self-defense is not a get-out-of-jail-free card.  In less-than-clear circumstances you're going to have to prove your case counter the prosecution's rather convincing argument that you murdered the person.  Call it whatever you want, you're not going to be able to sit there and relax because the burden is on the prosecution.  The state has to prove murder beyond a reasonable doubt, but they have the benefit of a dead body and your admission that you shot the person.  And your claim of self-defense is going to be hard to believe without some testimony from you.  So, I'd say you're going to have to prove your case.  

There have even been court cases where someone wanted to argue self-defense and the judge did not allow that defense to be presented, because the self-defense claim was so ridiculous.

Have you Googled how many mistaken-identity shootings there are out there?  My goodness.  Identify your target.  

Suggested reading:

“In the gravest extreme” by Massad Ayoob.  

The book is definitely dated by his references to self defense guns, but the arguments about when lethal force is justified is still very valid.  

A big +1 for that book. I have taken several of his firearms training classes and they are worth it too. He also has a class called Judicious Use of Deadly Force that is so good.

For the shooting to be justified as self-defense the intruder would have to be armed with a weapon and you would need to prove that he/she was trying to cause GBH.

You know I have come to the realization that there is no such thing as a quick legal question here.

Does such a thing as a "quick legal question" even exist?

I suppose there there are "quick legal questions" just no "quick legal answers".

Depends: did you pay a flat fee or are you billed by the minute?

What's so Hard about this... The use of deadly force requires that you are someone else in the house is about to be harmed...

You don't take a life over stuff...Period...

No one has said this...

I will take a life if someone tries to go and steal one of my firearms.

The Defense must convince a judge at trial of certain objective and subjective beliefs held by the Defendant in order to raise the affirmative defense of privileged conduct at trial.



The Defense must admit to many of the facts in order to raise the affirmative defense. 1/2 of the job is done for the Prosecution, and it's done by the Defense.  Juries are not exactly known for their smarts.



Actually, the burden is on the Defense at that point - see State V. Head. i.e. The burden is on the Defense to convince the judge that the privileged conduct of Self Defense should be included as a jury instruction.



There are practicing lawyers and long-time LEOs that don't know much about the law.



Nope.  Just a random guy off the street who happens to read a lot of case law (probably enough for a JD at this point ), and likes to sit in the gallery.  The wife working for a downtown firm (Westlaw and Pacer) helps.

ETA: The part above in blue, and:

Apologies for using Wiki, but it's a decent, quick primer if you're not delving too deeply.

Security6 has posted a decent explanation of the current case law here in WI.

But.. but... ammo costs... fuel costs...

Such a class might come close to costing as much as two hours consultation with a mediocre defense attorney.

You would be mistaken Sir. Even when employing lethal force, one is expected and required to use the minimum force necessary for defense. You'll find yourself having a difficult time articulating a reasonable belief of an ongoing threat requiring you to empty that second mag into the perp on the floor.

+1

This would be why you would be glad to give a statement...





...after speaking with your attorney.

Just to throw some gasoline on the fire...

http://www.channel3000.com/news/20975084/detail.html

and

http://host.madison.com/wsj/news/local/crime_and_courts/article_b4185a76-a2fd-11de-8aa7-001cc4c002e0.html

"I flinched and the gun went off" means the shooting wasn't self-defense.  The DA isn't going after homicide by negligent handling of a dangerous weapon.  That charge would have been difficult––but not impossible––to prove to a jury.

it also seems the bad guy was NOT armed.

Also on the news about that story, they interviewed an attorney on the subject, and he said that you can use deadly force to protect yourself and your property, from an intruder in the home, in Wisconsin.  So long as its not a shoot in the back, somebody you know, or a long range shot.

Guess we don't need to consult an attorney after all

That statement is so general that it is nearly useless as a guideline...   All it means is that under the right circumstances, self defense can be used as a defense for killing someone in your home... and that you are going to have a harder time if you know the person... It is irresponsible for him to make a general statement to the effect that you can not use deadly force against "someone you know"..  

just thought I'd throw it into the pot.