Dehlia Seim

Self-Defense; Rights and Risks

So-called “stand your ground” or “castle doctrine” laws have been prominent in the news since the Trayvon Martin case broke in February 2012. What exactly does it mean to have the right to stand your ground? Can you be prosecuted for shooting that drunken college student who stumbles through your door at 3:00 a.m.? What about a neighbor who saunters into the garage to borrow your lawnmower and catches you by surprise? Will you be prosecuted if you shoot a city inspector or the meter reader in your backyard? (The answers: probably not, yes and yes.)

Stand your ground or the “castle doctrine” refer to a person’s right not to retreat when threatened with bodily injury. The terms are used interchangeably in this article, although specific states have made distinctions between the two terms. These laws, which have been championed by the National Rifle Association across the country, are highly controversial. In December 2011, after ambitious campaign promises, Wisconsin’s governor Scott Walker and its legislature enacted two laws addressing self-defense and criminal and civil liability for using deadly force, specifically in one’s own home, vehicle or place of business. Wisconsin is the 30th state to have implemented a castle doctrine law. Such castle doctrine laws are also in effect in Illinois, Indiana, Michigan, North Dakota and South Dakota (note: not all of these states have the broader stand your ground law). Minnesota has a limited castle doctrine law that provides for no duty of retreat before using deadly force when faced with great bodily harm or death, or to prevent a felony in one’s place of abode. However, the Minnesota courts have not always upheld this no “duty of retreat”.

Wisconsin’s law is codified at section 939.48 of the Wisconsin Statutes. It states that “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 extent of force used may only be that which the person reasonably believes is necessary to prevent or terminate the interference. The force may not be so great as to intend or likely cause death or great bodily harm unless the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to him or herself. In other words, if you are afraid that someone is about to kick you in the shin and steal your potted plant, you can’t (under the stand your ground law) shoot that person in the head. This seems fairly reasonable and self-explanatory, yet there has been plenty of opposition to the laws. Why?

The new law expands the existing rules regarding self-defense. The Wisconsin castle doctrine extends beyond the “castle” to include your vehicle and place of business in addition to your home. While it may not seem fair to deny this presumption to mere employees, the place of business is defined by statute to mean a business that the person owns or operates. Consider the implications of the expanded scope, particularly when combined with existing conceal and carry laws. There certainly may be greater opportunity – and risk to the general public – for unnecessary or reckless gun use in alleged self-defense. Of course, the other side of the argument is that gun violence may be stopped earlier or more easily due to the additional guns and the actions of quick-thinking citizens. The debate continues to burn hot.

Wisconsin’s new self-defense law requires a presumption that a homeowner using force against an intruder believed such force was necessary to prevent death or great bodily harm. The person against whom the force was used must have unlawfully and forcibly entered the dwelling, and the homeowner-victim must have known (or reasonably believed) an unlawful and forcible entry was occurring. If these are not the circumstances then the homeowner-victim could be criminally liable, civilly liable, or both. Before the 2011 law took effect the presumption, or burden of proof, fell on the homeowner-victim to show the homeowner-victim believed the use of force was necessary. Now, so long as the statutory requirements are met, such force is presumed necessary.

A person (the “actor”) is privileged to threaten or intentionally use force against an intruder under two scenarios. The first, if: (1) the person was in the process of unlawfully and forcibly entering the actor’s dwelling, motor vehicle, or place of business, and (2) the actor was present in the dwelling, vehicle, or business, and (3) the actor knew or reasonably believed such unlawful and forcible entry was occurring. The second, if (1) the person was already in the actor’s dwelling, vehicle or business after unlawfully and forcibly entering it, and (2) the actor was present, and (3) the actor knew or reasonably believed such entry had occurred. Dwelling includes the home and the lot on which the home is situated, plus driveways, sidewalks, swimming pools, patios, fences, porches, garages and basements. An actor does not benefit from this presumption if the actor was engaged in criminal activity or, if the person against whom the force was used was a public safety worker attempting to enter the actor’s dwelling, vehicle or business in the performance of his or her official duties. A public safety officer means an EMT, a first responder, a peace officer, a firefighter, or a person staffing or operating an ambulance.

If these requirements are met and no exception applies, the court may not consider whether the actor had an opportunity to flee or retreat before using the deadly force. In fact, under Wisconsin law, the court must presume that the actor reasonably believed the deadly force was necessary.

Under former laws, having an opportunity to escape or retreat was a key consideration in evaluating self-defense claims. This element of retreat is no longer part of the analysis. The presumption of immunity from criminal and civil liability has also been coined the “shoot first” law since there is no longer any burden on the actor to prove he or she could not flee from the unlawful intrusion. Whether anyone is alive to answer questions is irrelevant.



This article should not be deemed legal advice. You should always consult with an attorney about your specific circumstances and legal rights and obligations.


Dehlia C. J. Seim is an attorney with Fryberger, Buchanan, Smith & Frederick, P.A., licensed in Wisconsin and Minnesota, and practicing in the areas of real estate and creditor remedies.