Kyle Rittenhouse was an 18-year-old man charged with reckless homicide and intentional homicide in the shooting of three men during protests against the shooting of a black man, Jacob Blake, by a white police officer in Kenosha in 2021. Rittenhouse’s defense attorneys argued that Rittenhouse was the person facing danger, with one man trying to attack Rittenhouse with a skateboard and Rittenhouse only defending himself against his would-be attackers.
Rittenhouse was ultimately acquitted of all charges, and many legal observers noted that Rittenhouse’s self-defense argument only needed to convince one juror, which was much less of a burden than what prosecutors were facing. While the case certainly demonstrated that Wisconsin recognizes self-defense arguments, people need to understand that self-defense claims are still complex, and any person facing criminal charges relating to an act of violence will want to be working with an experienced Wisconsin criminal defense lawyer for help exercising these rights.
Wisconsin State Law on Self-Defense
Wisconsin Statute § 939.48 establishes that a person is allowed to threaten or intentionally use force against another person for the purpose of preventing or terminating what they reasonably believe is an unlawful interference with their person by the other person. A person can intentionally use only such force or threat thereof as they reasonably believe necessary to prevent or terminate the interference.
A person cannot intentionally use any force that is intended or is likely to cause death or great bodily harm unless they reasonably believe that the force was necessary to prevent either imminent death or great bodily harm to themselves. If a person intentionally used force intended or likely to cause either death or great bodily harm, a court cannot consider whether the person had the opportunity to flee or retreat before they used force and must presume that the person reasonably believed such force was needed to prevent either imminent death or great bodily harm to themselves if the person makes such a claim and either the individual against whom force was used was actively in the process of unlawfully and forcibly entering a person’s dwelling, motor vehicle, or place of business, the person was present in the dwelling, motor vehicle, or place of business, and the person knew or reasonably believed that some unlawful and forcible entry was occurring, or the alleged offender against whom the force was used was in a person’s dwelling, motor vehicle, or place of business upon unlawfully and forcibly entering it, the person was present in their dwelling, motor vehicle, or place of business, and the person knew or reasonably believed that the alleged offender had unlawfully and forcibly entered a dwelling, motor vehicle, or place of business.
The presumption above does not apply when the person was engaged in criminal activity or was using their dwelling, motor vehicle, or place of business to further some criminal activity at the time of an offense, the person against whom force was used was a public safety worker who entered or attempted to enter the person’s dwelling, motor vehicle, or place of business in performance of their official duties and the public safety worker identified themselves to the person before the force described was used by the person and the person knew or reasonably should have known that an individual entering or attempting to enter their dwelling, motor vehicle, or place of business was a public safety worker.
Provocation can also affect the privilege of self-defense. A person engaging in the unlawful conduct of a kind likely to provoke others to attack them and does provoke an attack will not be entitled to claim the privilege of self-defense against such an attack, except when an attack that ensues is of a kind causing the person engaging in unlawful conduct to reasonably believe that they are in imminent danger of either death or great bodily harm.
In such cases, a person engaging in unlawful conduct is privileged to act in self-defense, but a person will not be privileged to resort to the use of force either intended or likely to cause death to their assailant unless they reasonably believed they had exhausted every other reasonable measure to escape from or otherwise avoid either death or great bodily harm at the hands of their assailant. A privilege lost by provocation can be regained if a person in good faith withdraws from a fight and gives adequate notice thereof to their assailant.
A person who provokes an attack, either through lawful or unlawful conduct, with the intent to use such an attack as an excuse for causing death or great bodily harm to an assailant will not be entitled to claim the privilege of self-defense. The privilege of self-defense extends not only to intentional infliction of harm upon real or apparent wrongdoers but also to unintended infliction of harm upon third persons, except that if an unintended infliction of harm amounts to a crime of first-degree or second-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or second-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the person is liable for whichever one of those crimes is committed.
A person will be privileged to defend a third person from real or apparent unlawful interference by another person under the same conditions and by the same means as those under and by which a person is privileged to defend themselves from real or apparent unlawful interference, provided that a person reasonably believes that the facts are such that the third person is privileged to act in self-defense and that a person’s intervention will be necessary for the protection of the third person. A person is also allowed to use force against another person if they reasonably believe that using such force will be necessary to prevent the person from committing suicide, but the privilege does not extend to the intentional use of force that is intended or likely to cause death.
Castle Doctrine and Stand Your Ground Laws
Wisconsin is a Castle Doctrine state, which means a person who is in their home, car, or business has a legal presumption of deadly force to be used against another person when they break into, or are in the process of breaking into, one of these locations while they are present inside. The Castle Doctrine does not apply to invited guests, and it also will not apply if a person chases an alleged offender off of the property.
Stand Your Ground laws are very similar to the Castle Doctrine because both relate to the use of deadly force on private property, meaning that when people have a legal right to be in a certain location, were not instigators, and did not provoke a confrontation but the other party continues to threaten them, they within their rights to use deadly force under Stand Your Ground laws. The difference between Stand Your Ground and the Castle Doctrine is the location of an incident, as the Castle Doctrine requires an intruder to be inside a property while Stand Your Ground laws do not.
Wisconsin does not have a Stand Your Ground law. Nonetheless, there is a defense argument that can be made that a victim was simply protecting themselves for fear of their life.
Weapons and Self-Defense Claims
People who are concerned about their safety in public and want to carry weapons for self-defense may legally do so in Wisconsin as long as they follow certain guidelines. A person is legally protected if they threaten or use a weapon against another person to prevent unlawful interference or other actions that might cause death or bodily harm.
If a person uses a weapon for self-defense measures, it cannot be to intentionally cause death or great bodily harm unless they believe the other person is going to cause great harm to themselves or another person. Concealed weapons are generally illegal for people to carry in Wisconsin unless they have been permitted by Wisconsin or another state to carry concealed weapons.
People with concealed carry permits must be aware that there are certain locations where they cannot carry a concealed weapon, such as prisons, police stations, airports, courthouses, school grounds, and other locations on which alcohol can be consumed. Guns are perhaps the most common kind of weapon people choose to carry in many cases.
Wisconsin is an open carry state, meaning any person who is allowed to possess a firearm legally can carry a loaded gun in public. This policy does not mean that every person can carry a handgun in public because of Wisconsin gun ownership regulations.
Wisconsinites can own guns when they are over 21 years of age, are not a convicted felon, have not been convicted of misdemeanor domestic violence charges, and do not have any expunged felony convictions. People also cannot open-carry guns in many of the same locations listed above.
Tasers, or stun guns, are not legal in Wisconsin. They are prohibited from ownership, use, sale, and shipment.
While tasers can be an effective weapon, they are also extremely harmful to people and may cause great bodily harm. They are often found online and sold in combination with pepper sprays because of their small size and nature.
Pepper spray is another deterrent that may fight off attackers through a single canister. Pepper sprays can be effective for people who are in close proximity to their attackers.
People can carry pepper spray in Wisconsin for protection so long as they are at least 18 years of age, are not convicted felons, the pepper spray’s volume is less than two ounces, the oleoresin capsicum (OC) concentration is less than 10 percent, and the pepper spray is not disguised as another item. People carrying pepper spray should practice using the weapon safely to ensure it does have a cover over the trigger button that prevents accidental use.
Wisconsin’s self-defense laws do not cover knives, which are not typically considered dangerous weapons by the state. People may carry knives for self-defense purposes both inside and outside of their homes, even concealed in purses or pockets.
Contact Our Appleton Criminal Defense Lawyers Today
Do you think that you have a valid self-defense claim relating to the criminal charges you are currently facing? You will want to be sure you speak with Hogan Eickhoff as soon as possible.
Our team focuses exclusively on criminal defense matters and will work tirelessly to help you overcome your criminal charges. You can call (920) 450-9800 or contact us online to schedule a free consultation.