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The Castle Doctrine

What is the castle doctrine?  Our criminal defense attorneys explain:

The Castle Doctrine became law in Wisconsin on December 7, 2011.

On December 7, 2011 Governor Scott Walker signed a bill passing the Castle Doctrine in Wisconsin.  The law provides criminal immunity (along with civil protection) for individuals who use a gun in self-defense while on their property.  The doctrine provides the gun-user a presumption that use of the gun was justified.  The law is a “stand your ground” version, which does not require that the individual using his gun retreat before using deadly force.  The law applies in one’s car, business, and home.  The intruder must have forcibly entered the place, or be in the process of attempting to forcibly enter, and the defender must be present within the home, car, or business.

This doctrine focuses on self-defense.  There are numerous other defenses to criminal liability that may be applicable to your criminal case.  Your defense attorney certainly determines whether any of these doctrines apply to your criminal case.  If they don’t, there are still plenty of other ways to defend your case.  For example, if you’re completely innocent, an affirmative defense simply doesn’t apply.  Your defense attorney will almost certainly argue you didn’t do it (rather than I did it, but it’s okay because [blank].)  Finally, if you face criminal charged in Wisconsin, call our criminal defense attorneys at (414) 270-0202.

What does the law say?

Section 939.48(1m)(ar) of the Wisconsin Statutes describes the Castle Doctrine:

If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:
1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor’s dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.
2. The person against whom the force was used was in the actor’s dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.

The law, in other words:

In other words, courts cannot consider the defendant (the home owner) had an opportunity to retreat prior to using the force.  And secondly, the court presumes the defendant acted reasonably when using the force.  In order to qualify, the defendant must show one of the following:
  1. The victim (person entering the place) was unlawfully and forcibly entering the defendant’s home, car, business.  The owner of that property (defendant) was present.  And finally, the defendant knew/reasonably believed that the victim’s entry was unlawful.
  2. Alternatively, the victim was already in the home, car, or business.  The owner of the property (defendant) was present.  And finally, the defendant knew/reasonably believed the victim’s entry was unlawful.

Obviously this finding is extremely powerful.  Firstly, it eliminates a need to show the defendant retreated.  And secondly, it creates the presumption that the defendant’s actions were reasonable.

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Clarification of the Castle Doctrine:

At least one case helped clarify the castle doctrine.  In State v. Chew, the Court of Appeals was tasked with determining whether the doctrine applied (whether a jury instruction should be given) when Mr. Chew fired shots from the hall in his apartment and the doorway of the apartment building at two attackers who fled across a parking lot.  Mr. Chew faced recklessly endangering safety by use of a dangerous weapon charges based on the shots he fired across the lot.

As the law makes clear, the doctrine is applicable in two scenarios: when someone is in the process of unlawfully and forcibly entering the dwelling (939.48(1m)(ar)1) or someone who has already unlawfully and forcibly entered the dwelling (939.48(1m)(ar)2).  Chew’s situation is clearly the latter, since the attackers had already succeeded in entering Chew’s apartment when he fired.

The court’s finding in State v. Chew:

The court found that the circuit court was correct in not providing the jury an instruction regarding the Castle Doctrine.  It found:

¶ 11 Under WIS. STAT. § 939.48(1m)(ar)2., the person against whom the force was used must be “in the actor’s dwelling.” We find it significant that the singular possessive is used here. To possess means “to have and hold as property: have a just right to: be master of: OWN.WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1770 (1993). The statute applies only if the men were in Chew’s dwelling.
¶ 12 WISCONSIN STAT. § 939.48(1m)(a)1. imports the definition of the actor’s dwelling set forth at WIS. STAT. § 895 .07(1)(h), which states:
(h) “Dwelling” means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use. “Dwelling” includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.

The key to Chew:

Key in this definition is the requirement that the part of the lot or site in question is “devoted to residential use.” While the statute lists several parts of a residential lot that are part of “dwelling,” it tellingly does not include a parking lot. See State v. Popenhagen, 2008 WI 55, ¶ 43, 309 Wis.2d 601, 749 N.W.2d 611 (a statute that lists specific items may exclude those not listed). We can discern whether or not the list should be extended to include an apartment shared parking lot by looking at the items on the list. The common denominator of driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements as relates to an actor’s “home” is that all are on the homeowner’s lot—property over which the actor has exclusive control. The same would be true of tenants renting a single place of residence. An apartment building parking lot, on the other hand, is shared by all the tenants. It is not exclusive to Chew or “devoted to [the] residential use” of any one tenant. Sec. 895.07(1)(h). While Chew may have had the right to park there, the parking lot was not part of his own dwelling.
What the court found was that the Castle Doctrine did not include Mr. Chew’s shared parking lot.  It pointed out that things covered by the doctrine, such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages and basements are all linked to the home itself, and are property over which the defendant has exclusive control.  Mr. Chew does not have exclusive control over the parking lot.  Instead, all tenants share the parking lot.  Therefore, the doctrine does not apply.
A man is prepared to defend his home pursuant to the castle doctrine.
The castle doctrine strengthens Wisconsin self-defense law. If you face criminal charges, call us at (414) 270-0202.

Hire a top criminal defense attorney to fight your criminal case

The castle doctrine sounds relatively straightforward.  Firstly, show the victim entered unlawfully.  Alternatively, show the victim was entering unlawfully.  Secondly, show you were present.  That’s certainly an easy one, as you must be present to act in self-defense.  And finally, show your belief the entry was unlawful.  But this isn’t as easy as it sounds.  By following these three steps, by definition you’re admitting to committing a crime.  If you screw up the wording, you may talk your way out of the castle doctrine and into serious criminal charges.  Those serious charges could include something as serious as first-degree intentional homicide.  Even on the mitigated end, you’re facing something such as second-degree reckless injury.  Remember: not all cops want the truth.  Some could be simply looking for the easy way out.  And what’s that? It’s arresting you.  A criminal defense attorney seeks to avoid criminal charges and to protect you moving forward.
If you’re under investigation regarding a criminal offense, contact Meyer Van Severen today.  Our criminal defense attorneys focus 100% of their practice on issues just like this.  Call us at (414) 270-0202.
Our criminal defense attorneys updated this blog post on December 9, 2019.