Much of our practice is devoted to defending people accused of violent crimes and in many of those cases, we defend a client who was acting in self-defense. One of the most common questions we get is under what circumstances it is legal to defend yourself.
Let’s start with the statute. Self-defense is an affirmative defense that allows a defendant to claim an exception to violent offenses. Closely related is defense of others, which allows someone to protect another person under similar circumstances. We see self-defense and defense of others commonly raised in cases alleging battery, disorderly conduct, and homicide. As an affirmative defense, a defendant has to show that he or she (1) had a reasonable belief that someone else was, or was about to, unlawfully interfering with them, (2) acted to end the illegal act, and (3) used only the force that was reasonable under the circumstances. This usually, but not always, requires a defendant to testify to his or her beliefs in order to get the defense before the jury.
What do I need to show to claim self-defense?
Before a client claims self-defense or defense of others, the first question is whether or not he has a “reasonable belief” that another person is unlawfully interfering with them. An unlawful interference can be anything illegal or anything prohibited under civil law. Most of the time, the unlawful interference is another person attacking or threatening to attack the person who defended herself. Bar fights, battered spouses, and self-defense shootings are all classic examples of an unlawful act that enables a person to protect herself. However, even a reasonable belief that such an act is about to occur is enough to satisfy this requirement. So if an angry person in a bar raises a fist, a robber tells you you’re going to die, or snarling dog corners you in an alley, you can use the force you believe is necessary to protect you or another from harm. This applies even if the person who threw a punch, fired a gun, or delivered a roundhouse kick to the face was objectively wrong about what the other person planned to do. The focus is on the perception of the person who is acting.
But that’s not all: the force used has to be reasonable under the circumstances. This means that you have to act in proportion to the perceived threat. If one punch brings an attacker down, it’s not reasonable to jump on that person and pummel them some more. Once the attack is over, so is your right to use force. This is particularly important when a person uses force that is likely to cause death or great bodily harm. In other words, if you use a gun, knife, bat, car, Chuck Norris, or other device that is likely to kill someone, you must reasonably believe that you’re doing it to save your own life. In most cases, bringing a gun to a fist fight will not be a reasonable exercise of self-defense.
Don’t I need to try running first?
No. You have a right to defend yourself in a reasonable and proportionate manner. However, from a legal perspective it is always better to leave a hostile environment when you are safely able to do so and let the police handle the aggressor.
Wait, can’t I consent to a fight?
Believe it or not, adults have that right in Wisconsin. But there are some exceptions. A consensual fight must result in injuries that are no worse what would remain a misdemeanor. If a participant bleeds, breaks a bone or tooth, or suffers any number of other injuries beyond simple bruising, then the law presumes that there wasn’t consent. With very limited exceptions, anyone under the age of eighteen is presumed legally incapable of consenting to a fight.
What’s this about the Castle Doctrine? Can I shoot the salesman at my door?
Wisconsin recently adopted the castle doctrine, which presumes that an act of deadly force in your home is reasonable, so long as the person entered your home illegally. This does not allow you to shoot salesmen, Jehovah’s Witnesses, or Girl Scouts that show up at your door. Nor does it presumptively allow you to use deadly force during an argument inside of your home. It is a narrow exception intended to allow homeowners to protect themselves from home invaders. Even when you invoke the castle doctrine, you can still be prosecuted if the use of force was unreasonable.