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Castle Law Revisited in Wisconsin


In 2007, the Wisconsin Assembly introduced the Castle Law or the Defense of Habitation Law. The term Castle Law (circa 1758), comes from our brethren across the great big pond. It has been adopted here in America as a counter measure to increased home invasions, the right to defend ourselves and our property, and freedom from frivolous legal action. In Wisconsin it passed in the assembly but was “shot down” in the senate. The bill would have created immunity for an act of self-defense for any person who used deadly force while in their residence while not engaging in illegal activity.

Currently new and improved Castle Law legislation has been brought before the assembly. The Assembly Judiciary Committee approved it just last week. The foundation of the 2007 bill has not wavered in this new piece of legislation. It would still be legal to shoot someone who forces their way into your home, business, or property, regardless if that person is not threatening you with bodily harm or your life. The intended victim would be protected from civil action if found to have used reasonable defense.

The Legislative Reference Bureau describes the existing law as:

“In general [under current law], a person who uses force in self−defense or in the defense of another person may not be convicted of a crime stemming from that use of force. This law applies only when: 1) the amount of force used is reasonable; and 2) the person uses that force to prevent or stop what he or she reasonably believes is an unlawful interference with himself or herself or another person, such as the crime of battery.”

Wisconsin’s Current law

“It is not reasonable to use force intended or likely to cause death or great bodily (substantial) harm for the sole purpose of defending property. Deadly force is only justified if a person reasonably believes such force is necessary to defend against imminent death or substantial harm.”

Wis. Stat. section 939.49(1). Section 939.48(1)

According to the State Bar Other Provisions in the New Castle Law Bill Include:

“The mandatory presumption would not apply if the person who used force was engaged in criminal activity or using the residence to further criminal activity. Additionally, the presumption would not apply if force is used against a police officer who identifies himself.

The presumption would work to bar civil suits against a homeowner who uses force against a person they reasonably believed entered (or was in the process of entering) the residence unlawfully by force, and the resident was home.

Despite immunity, if the homeowner is nevertheless sued in civil court, he or she would be entitled to all costs incurred to defend against the civil action.”

Why Castle Law

Over half the states in the union have some form of Castle Law on the books including: Alabama, Alaska, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Washington, West Virginia, Wyoming.

With the backing of mainly the NRA (National Rifle Association) and similar groups, states that have enacted such legislation have either sustained or expanded these laws to protect the right to defend life and property and have advocated in some cases for the property owner not to be sued in civil courts.

Simply stated, people should have the right to reasonably protect themselves and their property from intruders with the use of any force of their choosing. It is not enough to have a Louisville Slugger propped up by the front door when a potential criminal has an AK-47 in tote. In these times of easily accessible and high powered weapons, slow response times by police, and a growing number of violent home invasions, we should have the right to be able to “level the playing field,” or ward off potential perpetrators with the knowledge that the next home or property they violate could be their last!

Secondly, why should a person who is reasonably protecting their property and their lives against intruders have to incur frivolous court costs and legal fees when they are found innocent of protecting themselves and their property? With the presumption that these people are not guilty of committing any crime whatsoever, it would remove many cases before an already overwhelmed civil court system. We would be placing the burden of proof back on the criminal and not the innocent.

In Milwaukee we have seen a few cases that produced undesired outcomes. Business owners who are upstanding citizens of the community, sent to jail, fined excessively, or tried in civil court just for protecting themselves. They have little recourse to fight for their right to defend themself and/or their property. They also become reoccurring marks as the criminal knows all too well that businesses cannot shoot at people who are stealing, damaging, or fleeing from crimes.

If Conceal and Carry Wisconsinites are educated as mandated by that law, we could presume they are trained in what is necessary force versus extreme force. Why then would we not give them the benefit of the doubt if they have done their due diligence to educate themselves and ready themselves for these types of situations, if they should even occur at all?

Looking at a more recent and controversial incident, I reflect back on the case in which a homeless man shot and killed a young man who illegally entered a property. The young man and those with him attempted to steal from the property, but the crime was foiled by the homeless man, ending in gunshots and death. Yes it was unfortunate, very unfortunate that a young person was killed. Worse yet, he was prompted to commit an act of crime by a relative-the true criminal in all of this. However the person who thought he was going to be harmed, naturally and instinctively protecting property has rights too. He deserves a fair and just trial that will allow him to prove the fear and trauma he personally witnessed. In this situation, all too familiar, the victim did not know the circumstances of the young man. He did not know if these people were going to hurt him. He also did not know he was going to murder them. He shot and defended himself in the heat of a confrontation of which he did not know the intended outcome or target. He feared for his safety and his life.

Imagine if you are in your home and you see or hear an unknown person. What would you do? How would you react? Would you have more comfort knowing you are guarded by Smith & Wesson instead of Chief Flynn? Would you be more at ease? How many people are already “packing” to protect their kids and themselves? If you are a dad with a daughter at Marquette or UW-Milwaukee, would you be comforted knowing she had “protection” other than Trojans as she walked to and from her dorm at night? I know I would feel more comfortable and I would also be more at ease if I knew that a potential criminal also knew I could defend myself as well.

Arguments Against Castle Law

Many opponents of the law have renamed it “the shoot to kill bill.”

In and of itself, the term suggests people are intending to kill someone. Some even go one step further and suggest people are looking to kill. This presumes people are not going to shoot to stop or shoot to heed, they are then as ruthless as the criminals. Really? So we are supposed to believe that otherwise well-intentioned people will transform into monsters protecting their homes and property. Are we then supposed to believe that these people put themselves into these circumstances and want to shoot people and that we will return to the Wild West days.

Should we hide in closets and under beds “hoping” for a good outcome or should we question the assailant as to his intentions. “Excuse me robber, are you going to just take my possessions or do you plan to shoot, rape, or hurt me or my family?” Somehow I do not think we will have this time to chat and work out a resolution.

While there are some interesting theories about why we should not have Castle Law in Wisconsin; the drunken neighbor, the “accidental” criminal, the possible use of deadly force when unwarranted, overkill, or situations such as above where the criminal was young and foolish, etc…are we willing to accept those incidences may be far and few between when using deadly force? Or do we think these occurrences outweigh the need of the right to protect and defend ourselves?

I think it is time we shift the burden of proof back onto the offender. As law abiding citizens we are also inherently civilized and this would be legislation that curtails violent criminal behavior and aids the citizen in fighting crime and defending themselves.

I personally think the good outweighs the bad with Castle Law. I trust that my fellow Wisconsinites will be responsible citizens who continue on with their lives and use this as a last resort when all other possibilities are exhausted. I would like to think that as a mom and female (in the most “vulnerable of victims” category), I could decide for myself how best to protect my family and myself.

Well family what do you think, protect your castle or olly olly oxen free? I prefer to have criminals think Dirty Harry is behind my door keeping us safe.

Peace Family,