Defense of property and protection against retail theft is an affirmative defense to certain crimes in Wisconsin. This defense applies when the defendant uses an amount of force the defendant believes will prevent or terminate the interference. Force intended or likely to cause death or great bodily harm is never deemed reasonable in this situation, and therefore the defense never applies to those cases.
We’ll break this defense down section by section by analyzing the statute, section 939.48 of the Wisconsin Statutes. Subsection 1 of that statute indicates the following:
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 the person’s property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one’s property.
A person is privileged to defend a 3rd person’s property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person’s property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant’s employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
Generally, the law is almost the same as the first subsection. The protection transfers from the actor’s property to the property of another, but there are a few additional requirements. First, the actor must believe that if this property was his that he’d be able to lawfully protect it. Second, the actor must believe that his intervention is necessary for the protection of the property. Third, the actor must either be a family member of the property owner, live in the household of the property owner, have a legal duty to protect the property (loss prevention officers), or is an agent of the merchant who owns the property. Interestingly, the subsection also makes clear that this protection applies to the property of libraries.
In this section “unlawful” means either tortious or expressly prohibited by criminal law or both.
This subsection provides the definition of unlawful, used in the first two paragraphs.
Attorneys Meyer and Van Severen regularly defend cases involving affirmative defenses. If you’ve been accused of a crime after defending your property, or the property of someone else, contact us immediately. It’s crucial that your defense attorney begin working on your case as early as possible. Contact us at (414) 270-0202.