WISCONSIN: State House passes Castle Doctrine, 71-24, goes to State Senate.

[GreenStormCloud]

http://centralwisconsinhub.wausaudailyherald.com/article/20111102/WDH0101/111020539/Assembly-passes-castle-doctrine
A resident facing an intruder in his or her dwelling would have greater latitude to use force, without fear of criminal prosecution or civil liability, under a bill passed by the state Assembly on Tuesday.

The proposal, passed on a bipartisan 71-24 vote, is called "the castle doctrine," from the saying "one's home is one's castle." Twenty-nine states already have similar legislation, according to the National Rifle Association.

Under current law, if a resident uses deadly or severe force against an intruder and claims self-defense against criminal prosecution, the burden of proof falls to the resident to prove the force was needed to prevent imminent death or substantial harm to himself or others.

The proposed law would create an automatic presumption of immunity for the resident if the intruder unlawfully or forcibly entered the dwelling or was in the process of doing so. Whether the intruder was armed would not be a factor, said Rep. Dean Kaufert, R-Neenah, the bill's lead sponsor.

MORE AT LINK

Passage by the State Senate and signature by the Governor is all but certain.

[Name removed]

1. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[iverglas]

2. some people will just take anything good and decent

and turn it into something perverted and nasty, won't they?

Look what you've done to this one.

http://www.phrases.org.uk/meanings/an-englishmans-home-is-his-castle.html

An Englishman's home is his castle

What was meant by 'castle' was defined in 1763 by the British Prime Minister with an admirable selection of names to choose from - William Pitt, the first Earl of Chatham, also known as Pitt the Elder:

"The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter."

That's what that fourth amendment thing came from, I do believe.

If only some people really did believe in their Bill of Rights ... ALL of it ... they would stop denying that a law that grants an irrefutable presumption that an assault or homicide is justified is a flat out violation of the right not to be deprived of life without due process and of the right to the equal protection of the law ... well, you'd be back on track to being civilized.

[PavePusher]

12. "a law that grants an irrefutable presumption that an assault or homicide is justified"

Well, except that it does no such thing, of course.

But you knew that.

[jmg257]

15. Can you explain why it does not? (or Iverglas - why it does?)

"...
AB69
Under this bill, if a person used defensive force that was intended or likely to
cause death or great bodily harm, the court must presume that the person reasonably
believed that the force was necessary to prevent death or great bodily harm to himself
or herself or to another person if: 1) the individual against whom the force was used
was in the process of unlawfully and forcibly entering, or had already unlawfully and
forcefully entered, the residence of the person who used the force; 2) the person was
present in that residence; and 3) the person knew or reasonably believed that an
unlawful and forcible entry was occurring or had occurred. This presumption,
however, does not apply if: 1) the person who used the force was engaged in a criminal
activity or was using his or her residence to further a criminal activity; or 2) the
individual against whom the force was used had identified himself or herself as a
peace officer (or was or should have been known to be a peace officer) and was
entering the residence in the performance of his or her official duties."
AB69"


I am trying to wrap my head about the...nuances(?) involved in these laws.

Is it Iverglas' "irrefutable presumption" phrase you take issue with? What does "must presume..." actually mean legally - how much weight does it carry, other then apparently shifting the burden of proof to the state/DA?

[iverglas]

23. for the 50th time? ;)

Okay. But forgive me if I don't write it out all over again. Here are directions.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=125237&mesg_id=125237

It's from over four years ago, and it was somewhat old news at the time as I had already been over and over and around and around the piece of legislative crap in question more than once.

It isn't an especially easy read, but it is fairly thorough.

I'm not surprised that few people here understand it (and I'm generally willing to believe they actually don't understand it and aren't just pretending this time). I've seldom seen an accurate representation of these laws in the press, for example. Your average person doesn't have the first clue what a legal presumption is.

Here's a little blurb that could help:

http://www.youtube.com/watch?v=embj6ZVEG6o
"A Legal Presumption is defined by the La. Code of Evidence. Simply stated, it's a fact that the judge or jury in a case must find to be true unless the other party can show otherwise."

But there's the difference: this is no ordinary legal presumption. This is an absolute presumption.

The court MUST presume. There is no provision for the other party (the prosecution) rebutting the presumption by showing otherwise, i.e. that the person did not have a reasonable belief that the force was necessary to prevent death or great bodily harm to himself or herself or to another person. Which could obviously be done if the victim was, say, the 12-year-old neighbour kid breaking in to steal booze.

If the person meets (1), (2) and (3), they may not be convicted, period -- unless, I would submit, the prosecution has evidence that there was a completely different motive for the assault/homicide, and that even if it must be presumed that the person had that reasonable belief, they really killed the other person to get their insurance money, for instance.

So I might surmise, anyway. There has been a case in Florida along those lines, where the crime was between people involved in drug debts, but the accused ended up pleading guilty to a lesser charge so the law wasn't tested.



"the court must presume that the person reasonably believed that the force was necessary"

Now, imagine that a legislature wrote a law that made it legal to beat your dog on the 6th Tuesday in February. Well that's not a problem. There never has been and never will be a 6th Tuesday in February.

Now the legislature amends the law to say:

"the court must presume that the act occurred on the 6th Tuesday in February"

Anybody who beat their dog on any day of any month would be 100% impossible to convict.

The court could not look at someone who had beaten their dog to death in the most appalling way on Friday, November 4, and say "guilty". The court would have to look at the law and say "the offence occurred on the 6th Tuesday in February; not guilty".

And that is exactly - exactly - what this law and all its siblings do.

If a person actually does have a reasonable belief that they are in danger of death or serious injury at the hands of someone who has unlawfully entered their home, it isn't really that difficult to persuade a judge or jury of that fact.

Not as easy, however, as it is to persuade a mob of stupid right-wing bigots that the NRA and its right-wing politician puppets have the mob's interests at heart, obviously.

[jmg257]

24. Ok - I do appreciate it! :) I started looking into the Kentucky judge (Issac) incident to

get a head start.

Will read that, and all this and digest ASAP!

[jmg257]

41. Sheesh...I am glad I asked!

I read much of what you linked to (though the original Havard paper was not there), and will do more.

from the law:
"the court must presume that the person reasonably believed that the force was necessary...if: 1); 2)the person was
present in that residence; and 3)the person knew or reasonably believed that an unlawful and forcible entry was occurring or had occurred."

You said:
"the court MUST presume. There is no provision for the other party (the prosecution) rebutting the presumption by showing otherwise.."

Wow.

I initially had the impression that the shooter would be 'presumed innocent until proven guilty', but now I understand that he must be presumed innocent...period! And not even for what may indeed be a true act of self-defense, but for any situation where he thinks (or says he had reason to think) an illegal entry had occured!

Just wow. I hadn't payed these castle-doctrine codes enough attention...now I understand and agree with your anger/frustation at this type of law.

[iverglas]

42. and thank you

It is always a pleasure when somebody gets it. Which you 100% did.

[TheWraith]

49. No. Iverglas is completely mischaracterizing the law.

I'm not sure why some people consider it so horribly inappropriate that a person should be presumed to be acting in self defense if their home is being broken into. Iverglas' claim that somehow it's a license to murder is simply wrong: as the law clearly states, the person has to know or believe that their home is being broken into illegally. Just asserting that they believed so is NOT a defense.

[iverglas]

50. go misrepresent somebody else, will you?

as the law clearly states, the person has to know or believe that their home is being broken into illegally. Just asserting that they believed so is NOT a defense.

I'm sure you're not pretending that I said otherwise.

I know it's too complicated for you to understand. I mean, actually, it isn't; I'm sure I could explain it to my 81-year-old mum in five minutes so that she could turn around and try to explain it to one of her rather dimmer friends.

It's just that when somebody really, really doesn't want to understand, there's nothing ya can do, is there?

What would happen if you admitted that the law says what it says and has the effect it has?

Would you have to do one of those 12-step things, do a searching self-inventory or whatever it is, and admit to yourself and another person that you have been arguing the case for a despicable and stupid piece of garbage legislation, for whatever reason that might be?


I'm not sure why some people consider it so horribly inappropriate that a person should be presumed to be acting in self defense if their home is being broken into.

Well, basically, because that is not the presumption. Really, it's right there in black and white in this thread. Why don't you just copy and paste it? The presumption is that they were acting on a reasonable belief, which is one of the elements of the self-defence excuse.


Assuming for the sake of argument that you had accurately characterized the law that way,
the answers to your wonderment are:

Because there is no reason to.

Because the presumption covers all cases, including any case in which the presumption is just plain flat-out false as a matter of fact. It presumes that someone had a reasonable belief even when they did not and did not so much as have an iota of grounds for a reasonable belief.

Because the presumption outsts the courts from the proper role of the judicial system, and replaces them with individual whim, subject to no oversight whatsoever by anyone, and thus opens the door to the use of force with impunity.

It actually doesn't matter whether it ever happens. It's the fact that garbage like this is in the statute books that is the problem. It's garbage legally and it's garbage morally. And it says that the society that adopted it has retreated from modernity, both intellectually and ethically.


This is what we in the law biz call "bad law".

In this instance, it's also what anyone with a grain of human decency, not to mention respect for human rights, calls bad law.

[TheWraith]

53. Actually it's what normal people refer to as "incredibly bad understanding of the law."

"I know it's too complicated for you to understand. I mean, actually, it isn't; I'm sure I could explain it to my 81-year-old mum in five minutes so that she could turn around and try to explain it to one of her rather dimmer friends."

I pity your mother for being the target of your completely inaccurate explanation.

You repeatedly insist that there is NO WAY for ANY situation to not be covered by this presumption, even after one is pointed out to you. It's an insanely simple "If = then" statement that should be obvious to anyone with basic logic skills. If someone knows or reasonably believes their home is being broken into, THEN they have the right to employ lethal self defense. IF they don't have cause to reasonably believe this, THEN they don't. You seem to want to mentally edit out the entire latter part and claim the law says that you can murder anyone just by claiming they were breaking into your home.

There's nothing whatsoever about the law which prevents anyone from providing evidence that someone claiming justification was in fact NOT justified. All it says is that in the case of burglary, you can't be treated like a murderer for defending your home. Apparently you consider that uncivilized.

[iverglas]

54. just come straight out and tell us what you think this means

the court must presume that the person reasonably believed
that the force was necessary to prevent death or great bodily harm
to himself or herself or to another person if:

Not what it doesn't mean.

Not what something else in the law means.

What that means a court must do when someone shows that

1) the individual against whom the force was used was in the process
of unlawfully and forcibly entering, or had already unlawfully and
forcefully entered, the residence of the person who used the force;
2) the person was present in that residence; and
3) the person knew or reasonably believed that an unlawful and forcible
entry was occurring or had occurred.

You may feel free to use my hypothetical if you like.

1) the 12-year-old neighbour kid is in your basement rec room with three bottles of booze stuffed in his pockets
2) you arrive home and find him there
3) you see that the basement window above where the kid is standing is broken and the glass is all on the shag rug at his feet

You bash the kid over the head with the nearest wine bottle. Let's say the injury wasn't life-threatening and the kid survives so you have only committed whatever an assault causing bodily harm is called in the jurisdiction.

What course(s) of action are open to the court?

[TheWraith]

56. Why not make it that the kid was stealing medicine for his sick mother?

So long as you're making up crazy hypotheticals.

Apparently, you believe that it's more common for someone facing a minor break-in by a 12 year old boy to turn into a crazed lunatic and want to murder him, then use the legal system to get away with it, than it is for someone to break in with either the intent or the potential to do you harm. Out of curiosity, what is it about gun control advocates that you all seem to think every single human being is a barely controlled psychopath just looking for excuses to kill? You over and over assert this idea that given a chance a normal person will turn into Hannibal Lecter at the slightest provocation.

I for one am not particularly of the belief that someone peacefully inhabiting their own home, and confronted by someone breaking in ten feet from where their kids are sleeping, should be required to politely withhold the use of force and ask nicely whether that person is a kidnapper, a rapist, or just a burglar. Which is, by the way, about as reasonable a hypothetical scenario as what you laid out.

[iverglas]

59. it doesn't matter what you think of the scenario

The FACT is that the scenario falls within the four corners of that law.

You obviously agree, or you would have made some effort to prove me wrong.

You agree that this law allows a person to kill a 12-year-old kid whom they know, who breaks in a window in their house to steal booze.

Do you actually know of some other law that lets people do things quite that unpleasant with impunity?

It doesn't matter a smidgen of an iota whether anybody ever kills that 12-year-old kid. I find it odd that you would find that so outlandish though. Do I have to go hunt up the Boca Raton accountant all over again?

This is about the law, and what it says and what it does. And all your loud honking and flapping seems to have amounted to a tacit admission that I'm right. Ta.

[jmg257]

55. Not for nothing, but if someone were contemplating blasting at me

or mine with a gun, I would really want them to have to consider a bit more justification then "I thought they were trying to illegally enter my home/car/business' (this even knowing I would not actually be doing such a thing).

Always good to remember that 1/2 the people in the world have below-average intelligence. Not sure I want them being the sole arbitrator of due process in highly-questionable deadly situations involving themselves.

This law applies to vehicles too. Are there any scenarios where a driver might have reason to think, or to say he thought, that someone was trying to forcibly enter his car that may not be really doing so? I can think of a couple...say, maybe at a protest, or near a picket line?

Anyway, I think that the possibility is there often enough where a person will NOT be acting in self defense when confronting what he/she perceives to be a burglar (or later states was a burglar) with deadly force. In fact, THEY DO NOT HAVE TO BE - it will be presumed that deadly force was NECESSARY! Simply because they thought someone had entered/was entering their home/car/business illegally.

[TheWraith]

57. If someone is likely to believe in good faith that you're attempting to break into their home...

... then I'd ask you, which of you is more likely to be going beyond the bounds of reasonable behavior there?

As I said to iverglas, I don't think people facing down an intruder ten or twenty feet from where their kids are sleeping should be required to politely inquire whether that person is a kidnapper, rapist, or just a burglar. To find scenarios justifying the claims made about the castle doctrine, you have to both twist around the meaning of the law, and even then create highly imaginative and improbable scenarios.

More to the point, the castle doctrine is law in 25 states, including California, Michigan, Illinois, Ohio, and others. The scenarios dreamed up to justify the claim that it's legalized murder turned out to be exactly that: imaginary scenarios, the same as the claims that legalizing concealed carry would lead to daily shootouts over parking spaces. People are uncooperative that way, turning out to be on average much more reasonable and responsible than folks like iverglas claim they are.

[iverglas]

60. what is wrong with you?

As I said to iverglas, I don't think people facing down an intruder ten or twenty feet from where their kids are sleeping should be required to politely inquire whether that person is a kidnapper, rapist, or just a burglar.

And you said that to me why?

Because I said I thought they should be required to do that?

And if that is what you are saying, you are making this disgusting, despicable false allegation about me, an allegation that you know beyond a shadow of a doubt to be false because you have read my posts in this thread at the very least, why?

And if that is not what you are saying then you are yammering away about this why?

[jmg257]

63. Well that would GREATLY depend on whether I was actually attempting

to break into their house, wouldn't it? As it turns out, it doesn't matter IF I was really trying to break into their house, as long as they can articulate how they thought I was. Then their use of even deadly force must be presumed necessary.

"If someone is likely to believe in good faith that you're attempting to break into their home...
... then I'd ask you, which of you is more likely to be going beyond the bounds of reasonable behavior there?"


"I don't think people facing down an intruder ten or twenty feet from where their kids are sleeping should be required to politely inquire whether that person is a kidnapper, rapist, or just a burglar."

And I would agree....likely most people would.

[jmg257]

65. I found some more on this, if interested...

http://www.wisbar.org/AM/Template.cfm?Section=InsideTrack&Template=/CustomSource/InsideTrack/contentDisplay.cfm&ContentID=105635

"Under {proposed} legislation, a court must presume a resident was justified in killing a person, regardless of whether the resident reasonably believes the force is necessary to defend against imminent death or substantial harm, if certain conditions exist.

The presumption applies if a person entered or was in the process of entering the residence “unlawfully” and by force, the resident was home, and the resident knew or reasonably believed that an unlawful and forcible entry was occurring or had occurred.

That is, the resident would benefit from an instruction to the jury that use of deadly or substantial force is presumed “reasonable” if the jury finds that someone unlawfully and forcibly entered or attempted to enter the residence when the resident is inside.

But O’Meara points out that under Wisconsin law, the presumption does not disappear, even in the face of evidence to the contrary.* Thus, the law of mistake would benefit someone who lies.

In other words, a person could still get the mandatory presumption of “reasonableness” – even if there is evidence the person did not reasonably believe deadly force was necessary – by falsely claiming he or she believed (but was mistaken) that an unlawful and forceful entry was occurring or had occurred."


"O’Meara is immediate past chair of the State Bar’s Criminal Law Section, which is made up approximately 600 judges, prosecutors, criminal defense lawyers, and academics. The section voted unanimously to oppose the legislation, which was introduced in the Assembly in March."

*"The Criminal Law Section’s opposition centers in part on the law of mistake, which holds that an actor’s belief may be reasonable even if that belief was mistaken. Section 939.43."



Seems in Wisconsin, this presumption may indeed be absolute.

[iverglas]

71. the experts pretty much seem to agree

I haven't seen one disagree yet, and it's not like I haven't researched these damned laws.

And it isn't just defence counsel. Prosecutors are flummoxed, that Kentucky judge was flummoxed, the Florida legislature's own counsel advised against the presumption, and that guy who was the primary drafter of the Kentucky penal code, he was the one who called it the worst law he'd ever seen?


Now that bit about the law of mistake -- there's no problem with mistake as a defence generally, as long as the assertion of mistake genuinely meets whatever standard applies. (The CBC did a program last year about a woman from the US who shot and killed her husband while they were hunting in eastern Canada, and claimed she had mistaken him for a bear. They recreated the scene so viewers could assess that claim for themselves, because frankly, it was pretty implausible. You can watch it! http://www.cbc.ca/fifth/2010-2011/tildeathdouspart/)

I haven't really looked into that aspect of things much, since it was the presumption of a reasonable belief that the force was necessary to avert death/injury that I focused on. (This discussion has been going on here for several years now!)

But yes, it does appear that it opens a double door. The person could actually get the benefit of that bizarre presumption, which is bad enough on its own, by lying. One would hope there would be some standard that would have to be met to substantiate the clami of mistake, though.

[iverglas]

20. I knew it but I said it anyway?

So I guess that makes me a liar.

Me and the judge in Kentucky and the guy who wrote the real penal code in Kentucky and every prosecutor who has ever commented on it and academics and the legal counsel to the Florida state legislator, all of whom, as I have already said, know as well as I do what it means, and share my opinion that it is legislative garbage.

I have no idea what you know. I very sincerely doubt that you have the ability to understand what the legislation said, no matter how many times it is explained to you.

Just in case you actually didn't know it: your intellectual failings do not justify calling people who are smarter and more knowledgeable than you liars.

[ileus]

14. Until we can convince criminals to text, or write their intentions I’m afraid...

...any and all means necessary to protect life needs to remain on the table, up to and including lethal force. Savage and antiquated as it may sound, that’s truly the most progressive stance one can have when it comes to the desire to stay alive and protect home and family.

I’m not saying that I disagree with you, just that I personally couldn’t imagine being more progressive or liberal on the subject of self defense and castle doctrines. As my Bible says: "As for me and my family we'll trust in the Lord, all others pay cash." Or something like that...maybe it's "As for me and my family we'd trust in the Lord to give us guidance not to poke holes in the wrong person." ah hell forget about the Bible stuff... :)

Maybe I’m wrong…chance you gotta take I suppose.


In other news.....I'm really leaning toward a XDM 3.8 series 40 S&W.

[AtheistCrusader]

17. I think CD is not well crafted, however

I think you may have gone a little overboard there.

[beevul]

25. If only you understood it.

"If only some people really did believe in their Bill of Rights ... ALL of it ... they would stop denying that a law that grants an irrefutable presumption that an assault or homicide is justified is a flat out violation of the right not to be deprived of life without due process and of the right to the equal protection of the law ... well, you'd be back on track to being civilized."

How would you know whether anyone believes or does not believe in something which you yourself DEMONSTRABLY do not understand?

[ProgressiveProfessor]

35. Not particularly relevant, but I know this is one of your favorite screeds

US law is diverging from English common law here and elsewhere. Far from clear that it is a bad thing.

[Ilsa]

3. I've had my home broken into. Not everyone is after your things. Sometimes it is worse.

I wish I could have assaulted or killed him. He took years of my life away from me. IMO, extreme violence against him would be warranted.

Not everyone breaks in to steal junk.

[iverglas]

4. I'm not taking your point

You were a victim of violence? Me too. Glad we're both here.

If it was an attack that you believed endangered your life or threatened serious bodily harm, you would have been perfectly entitled under any law of the last century or more to use force to defend against it, if you had no reasonable alternative.

You would not have needed a law that prohibited the court from even considering your justification for using force, and forced the court to find that you were justified even if you quite simply and plainly were not.

So this law doesn't seem to have anything to do with your situation, or the situation of any person who genuinely fears injury or death from an assault by a person illegally in their home.

This law is designed to make sure that people who use force against someone illegally in their home -- which we all know means "shoots them dead" -- never have to justify their actions to anyone.

Legalized murder is another thing to call it.

[AtheistCrusader]

18. I have a pike.

I bet that's covered. I'll ask my lawyer.

[iverglas]

27. is it stuffed and mounted?

I have a pickerel.

HAHAHAHAHAhahaha.

Seriously. That's how I read it.

[ileus]

30. You mount critters....

now take that.... :)



You stuff turkey.

[AtheistCrusader]

33. Well, in that category

I might have to go with a Marlin.

[rl6214]

36. 36lb King Salmon out of Lake Michigan

[iverglas]

43. shh, I don't really have a pickerel

My dad used to fish for those things someplace on summer holidays. Weird evil prehistoric looking things, pike and pickerel. I don't eat fish, makes me puke, so I didn't pay a lot of attention.

Where's TXRat these days, speaking of fishing? I didn't get the annual invite for the private plane trip to somewhere northwest of nowhere in Manitoba this summer.

[beevul]

66. Thats not a pike, THIS is a pike!

"This is a new record Northern Pike in Canada . He caught it on Rainy Lake. The man (in the photos), was fishing and caught a 36" Pike. As he was reeling it in, a 56" - 55lbs Pike tried to eat it !!!!!

He landed them both in the same net. The last picture is unbelievable."

[iverglas]

70. you always root for ...

Pikezilla!

[Uben]

5. Criminals need to know they may die.......

...if they enter anyone's home illegally. End of fucking story!

[Name removed]

7. Deleted message

Message removed by moderator. Click here to review the message board rules.

[iverglas]

9. so let me ask you

Is calling for the murder of human beings a progressive position, a liberal position, or a Democratic position?

Can you cite your authority? Eugene Debs? John Stuart Mill? FDR?

[Upton]

11. Someone invades your home..

and you shoot them, that's called self defense..not "murder"...Which is why Castle Doctrine is a good thing, it protects homeowners from unscrupulous DAs and criminal coddling hand wringers..

[iverglas]

16. someone invades your home and you shoot them

when you do not have a reasonable belief that they are going to assault you and kill you or cause you serious bodily harm, at the very least, and you are a murderer.

The legislative wet dreams of a load of right-wing scum bought and paid for by the NRA doesn't change that fact.


Do you think the Democratic Party should abandon gun control as a policy because that will improve its electoral chances?

I think you've just defined hand-wringer for us.

But hey, you can still take that sad little effort at a personal attack and shove it up the barrel of your gun. That should kill several birds with one stone, more if we're lucky.

[AtheistCrusader]

21. Does not compute.

"when you do not have a reasonable belief that they are going to assault you and kill you or cause you serious bodily harm, at the very least, and you are a murderer."

Some people consider the very act of home invasion threat enough, and for many people, I don't blame them. It is difficult to quickly establish the motive of the person breaking in, without sacrificing any margin of safety from physical distance, surprise, etc.


As we've discussed before, I agree, someone yanking your flatscreen off the wall is probably not a mortal threat, but unless you catch them clearly committing a crime against property, it is difficult to discriminate which sort of event you are faced with. Maybe the burglar didn't like your TV, and is prowling around for something better? Or, maybe the rapist is prowling around the house looking for a human? How do you quickly tell?

Invading a home is a line that shouldn't be crossed. Not by the crown, nor the police, nor some idiot on the street. Doing so, carries risk.


Now, all that said, I think Castle Doctrine (as deployed in the US) is not a very good system, and the bar should be 'no duty to retreat', and claimed defensive shootings should be carefully investigated until we are certain no foul play is afoot. If no foul play, immunity from civil liability should THEN be granted to the defender.

[iverglas]

26. but you see, I don't care

what "some people consider". The reason I don't care is that it isn't of the slightest remotest relevance to anything.

It is difficult to quickly establish the motive of the person breaking in, without sacrificing any margin of safety from physical distance, surprise, etc.

And nobody has ever had to do that, and I do think you know that.

The "reasonable belief" test does not involve establishing motive. It involves showing reasonable belief.

It would not be reasonable to believe that the 12-year-old neighbour kid you come home to find standing in your basement rec room under the window he has broken to gain access, filling his pockest with booze from your bar, is about to cause you serious injury or death.

It would be reasonable to believe that the 6'4 stranger who breaks down your door at midnight holding a baseball bat, and doesn't stop coming at you when you point at the open wall safe and the cash inside it, is about to cause you serious injury or death.

Odds are very definitely that someone who breaks into your home when you are there is NOT going to injure or kill you. But you are not required to calculate odds. You are required only to have a reasonble belief. And yes indeed, in a whole lot of situations, the person in the house is going to have that reasonable belief, even if the fact is that (when we consult the alternate timeline) the illegal entrant has no such intentions at all. Yes, people who do those things do take the risk that the victim is going to reasonably believe they are in danger and use force to defend themselves.

But under these laws, if you grabbed one of those booze bottles and hit the neighbour kid over the head with it and killed him, you could not be convicted. Because the court MUST presume that you had that reasonable belief. Even though you didn't.

Now, as I said in my other post, I am submitting, and I appear not to be alone, that if the prosecution could show a different motive for the crime, they might get around the presumption. If you had a history of threatening the kid because he cut across your lawn every day, or tormented your dog, or played loud music at 3 a.m., the prosecution could take a shot at proving that you killed him out of pure malice.

But that's a danged heavy onus to discharge. Simply demonstrating that great big strong prime-of-life you had no reasonable belief that an unarmed 12-year-old was going to kill or injure you is a much more reasonable onus.

And there just is no reason in the world why it should not be open to the prosecution to do that. None.

[ProgressiveProfessor]

38. Your false assumptions and hyperbole lead to what I think you call "a dogs breakfast"

The first part is reasonable. A home invasion is not a rationale nor reasonable situation. The victims are often under duress at a level seldom experienced previously. While what they perceive as a lethat threat at the time could well not be one, killing the intruder scarcely qualifies as 1st degree murder.

It is the second guessing and Monday morning quarterbacking by those safe in their offices and not in the middle of the scrum that has lead to the Castle Doctrine movement in the US. Wildly varying treatment of similar cases over the years is what started it, and it also suits the way most Americans view the legal system (skeptical and in need of serious limits). This is a broadly held view and while unpopular with a minority of people, it clearly dominant in the US.

I would like you to show some sort of qualified statistic that those advocating Castle Doctrine are actually advocating unwarranted killing of helpless intruders. How about some examples of it happening and Castle Doctrine laws allowing it to go unpunished? Surely you have some empirical evidence to back up your oft repeated claims about this.

[iverglas]

44. yeah, I get it perfectly; we agree

It validates the perception of and contributes to the actual disintegration of civil society and its institutions.

I guess I didn't make myself entirely clear.


How about some examples of it happening and Castle Doctrine laws allowing it to go unpunished? Surely you have some empirical evidence to back up your oft repeated claims about this.

You're a pretty funny kind of professor, you are. ;)

Not too hard to tell that you've never come within spitting distance of an actual academic subject in your career. Let alone the law end of things.

How about you demonstrate that the law does not mean exactly what it says, hm?

[ProgressiveProfessor]

46. You made yourself quite clear

But that does not mean your position was correct.

There has been little documented misuse of Castle Doctrine. There is no evidence that it "validates the the perception of and contributes to the actual disintegration of civil society and its institutions". That is nothing more than your opinion, and one not widely shared in the US.

Keep up the ad hominems...it only adds to your "credibility".

[iverglas]

51. I was agreeing with you, sweetie; can't you be agreeable?

You said:
Wildly varying treatment of similar cases over the years is what started it, and it also suits the way most Americans view the legal system (skeptical and in need of serious limits). This is a broadly held view and while unpopular with a minority of people, it clearly dominant in the US.

And I agreed: it validates the the perception of and contributes to the actual disintegration of civil society and its institutions.

[AtheistCrusader]

19. You are abusing the word 'murder' just like the pro-lifers (or anti-choicers, or whatever).

[iverglas]

29. so let's look at the bizarre little screed to which I replied

Uben
Fri Nov-04-11 08:45 AM
Criminals need to know they may die.......
...if they enter anyone's home illegally. End of fucking story!

Now, I can't read that as meaning anything other than approval for the killing of anyone who enters someone's home illegally. Can you?

If it had said:

Criminals need to know they may die.......
...if they hold a knife to someone's throat and say they are going to kill them
...go into a bank with a firearm and take a hostage and demand $1M and safe passage to North Korea
...stand in a mall, pour gasoline on people and hold up a lighter

(and of course various less dramatic scenarios as well; I watch too much Flashpoint)

and thus obviously approved of those killings, the sentiment expressed would be consistent with generations of law in numerous developed societies: that killing someone (at least as the unintended effect of using force) to prevent death or serious injury to one's self or someone else is justified and is a complete excuse against a criminal charge. Even pacifists would generally agree since they don't hold others to the rules they set for themselves.

Entering someone's home illegally has simply never, at least for several generations, and ain't progress great? been justification for homicide.

Killing someone without a reasonable belief that the person is about to cause one injury or death (and, in the classical formulation, and we know all this, without a reasonable belief that one has no other way to avert the threat) is just plain murder.

It can be legislatively redefined. Legislators define things for the purposes of legislation all the time. But if a legislature defines "horse" to include cow, sheep and pig, for the purpose of some kind of health regulation, that doesn't make a cow a horse.

And legislatively defining a person in a home that has been broken into as a person who has a reasonable belief etc. etc. does not make that person a person who has a reasonable belief etc. etc.

So making it impossible to prosecute the person for murder very much does not mean that a murder was not committed.

We have been over this so many times I just can't believe that you are still in any dark about it. Others, I make no comment.

[Union Scribe]

61. Quite right. And that their death is on THEM for choosing to do so. nt

[pipoman]

6. I find the DA's opposition disingenuous

Dane County District Attorney Ismael Ozanne questioned its need. In his 13 years as an employee of the D.A.'s office, he said he can't remember a situation where someone acted in self-defense against an intruder and was criminally prosecuted for it.

Ozanne said he takes no issue with people legitimately defending themselves against intruders, but he suggested the proposed law could create gray areas.

"What about the person who comes onto someone's porch, maybe even trick-or-treating, and is shot?" Ozanne said. "Does that homeowner have a defense, and now it's the state's burden to prove that (the homeowner) acted unlawfully?"

Criminal prosecution is only the tip of the iceberg. Arising civil actions can cost the innocent everything to defend against, even when the victim prevails in the civil action. Protection from civil litigation is a key part of these types of laws. The prosecutor knows this very well. His opinion of whether or not "someone acted in self-defense against an intruder" likely differs significantly from the latitude offered in this bill...the bill will tell him he may not prosecute in circumstances which he currently could/would prosecute..or at least puts the burden on him rather than the victim.

The ridiculous "trick-or-treating" example has apparently been addressed in the bill...and this prosecutor knows it.

A resident facing an intruder in his or her dwelling would have greater latitude to use force, without fear of criminal prosecution or civil liability, under a bill passed by the state Assembly on Tuesday.

The proposed law would create an automatic presumption of immunity for the resident if the intruder unlawfully or forcibly entered the dwelling or was in the process of doing so.

Not to mention the removal of the burden of proof being on the victim. Burdens of proof can cost the victim tremendously. Even though the prosecutor claims, "In his 13 years as an employee of the D.A.'s office, he said he can't remember a situation where someone acted in self-defense against an intruder and was criminally prosecuted for it.", he knows it is at his discretion to prosecute or not.

Under current law, if a resident uses deadly or severe force against an intruder and claims self-defense against criminal prosecution, the burden of proof falls to the resident to prove the force was needed to prevent imminent death or substantial harm to himself or others.

[iverglas]

8. yeah, the funny thing is

you'd be hard pressed to find a prosecutor in the country who doesn't agree.

Like the judge in Kentucky and the lawyer who was the prime drafter of the earlier version of Kentucky's criminal code, who both said this legislation is garbage.

Like the counsel to the Florida legislature, who told that particular batch of right-wing assholes that their legislation was garbage.

Like any minimally knowledgeable person with the most minimal comprehension of the law who has ever looked at one of these pieces of garbage has ever said.


And for the love of fuck, will you people stop trying to create stew out of this worse than it is?

Civil liability HAS NOTHING TO DO WITH the criminal law provisions. In fact, that's just another thing wrong with it: civil liability has no place in a criminal statute.

The prosecutor IS NOT TALKING ABOUT civil liability. So stop trying to change the damned question and respond to what was said, and if you can't, just give it up.


the bill will tell him he may not prosecute in circumstances which he currently could/would prosecute

Yeah.

Circumstances in which he knows, the person who committed the act of violence knows, the victim of it knows, you know, I know, the entire world knows that the person who committed the act of violence had NO reasonable fear of injury or death, and just did it anyway.

And has now been granted immunity from prosecution, and has thus just committed a crime with legally approved impunity.

Rwanda, anyone?

[pipoman]

68. I've worked with a fair amount of carreer US prosecutors,

most have never met a criminal statute they didn't love..or wish to make easier to prosecute..or increase the maximum penalty of. Actually making it harder to prosecute or to shift the burden from the accused to the prosecution, or reduction of penalties will always result in gnashing of prosecutorial teeth. Most US prosecutors are not civil libertarians, in fact, most I have met are die hard rethugs.

US prosecutors are political beings who's only concern is their own conviction rate. If they choose not to prosecute, it is usually only because of either a lack of evidence to convict or because they doubt their ability to stack a jury sufficiently to convict...sometimes because the accused is somehow politically connected.

Civil liability has everything to do with winning subsequent civil litigation. You're right, prosecutors don't give a single shit about unjust civil litigation based on their criminal investigations. They will drag their ass until raw when asked to turn over their cases to the defense team..they will gladly share their case information with civil litigators working against someone being prosecuted or someone who has been convicted OTOH. These bills usually end up with amendments to both criminal and civil code.

The language of the proposed bill still allows for criminal prosecution..in case you missed it..

The proposed law would create an automatic presumption of immunity for the resident if the intruder unlawfully or forcibly entered the dwelling or was in the process of doing so.

[iverglas]

72. why do you need to do this?

Why can so many people not adhere to the rules of CIVIL DISCOURSE and give up on this nasty tactic of pretending people said things they did not say?

You're right, prosecutors don't give a single shit about unjust civil litigation based on their criminal investigations.

I did not say that. Why are you pretending I did?

I said:

Civil liability HAS NOTHING TO DO WITH the criminal law provisions. In fact, that's just another thing wrong with it: civil liability has no place in a criminal statute.
The prosecutor IS NOT TALKING ABOUT civil liability. So stop trying to change the damned question and respond to what was said, and if you can't, just give it up.

I wasn't even talking ABOUT what you pretend I was talking about. I was talking about THE CRIMINAL LAW in question, as was the prosecutor in question.


I expect nothing less from some quarters than a bunch of 18th century the-guvmint-is-bad bullshit.

It's just entertaining when it comes from the same quarters as the law 'n order, lock 'em up and throw away the keys types. As it so often does.

If prosecutors and judges and juries and courts in general are so gosh darned incompetent and corrupt, what do any laws matter, and what good all the hue and cry about keeping the bad guys in jail forever as a solution to the crime problem?

Maybe you just don't give a shit if the same alleged tactics are used against somebody else.

If all prosecutors care about is their conviction rate, I'm at a bit of a loss to understand why they would prosecute sympathetic individuals in situations where the accused can make a self-defence case. Or why the accused's peers would convict them.

I wonder whether we have any examples in Wisconsin of cases where the process went so terribly awry and some poor slob was convicted or even just prosecuted for a self-defence assault or homicide. Or any actual examples from anywhere.

Are prosecutors elected? Elect better ones. Don't the same people elect prosecutors as elect the present batch of cretins in the Wisconsin legislature? Why is my cognition feeling so dissonant?

Better yet, stop electing people who are supposed to be professionals whose job is to implement laws and policies made by the ones elected to do that, of course.


The language of the proposed bill still allows for criminal prosecution..in case you missed it..
The proposed law would create an automatic presumption of immunity for the resident if the intruder unlawfully or forcibly entered the dwelling or was in the process of doing so.

Um ... perhaps you didn't mean to quote the part about the provision in the bill that PRECLUDES criminal prosecution?

Have you cottoned on at all to what is actually under discussion here?


html fixed

[pipoman]

74. Cutting through the sanctimony..

of coarse, if the intruder hadn't/wasn't unlawfully or forcibly entered the dwelling or was in the process of doing so, the homeowner can be prosecuted and held civilly liable..the 'trick-or-treat" reference is silliness..

[ileus]

10. That's the good thing about CD's they protect us from bad DA's.

[jpak]

13. More GOP cheerleading

yup

[ileus]

22. Life Safety isn't a R v L issue.

[Name removed]

31. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[oneshooter]

28. What would you do if 2-3 people forced their way into your home? n/t

[Starboard Tack]

40. Three basic options

1. Tell them they made a mistake and point them to your house.
2. Speed dial you and Robin and have you come over for the party.
3. Put the kettle on and offer everyone a nice cup of tea.

[oneshooter]

67. Well, since the question was not directed to you, why in the hell should

I care what you would do before they bent you over, raped you, then killed you.

Please pay closer attention to the posts you are responding to.

Oneshooter
Armed and Livin in Texas

[iverglas]

73. hey, that told you, didn't it?

You got any theories about this RAPE fixation of theirs?

[Starboard Tack]

75. The rape thing is really interesting, because I only ever hear guys use it as a reason to tote

Of course some claim that their dear wives and daughters also tote. I think it is rooted in a fear of inadequacy and being armed compensates on some level.

[ileus]

64. I got this...

Hopefully poke holes in 2 or 3 of them and keep my family and property safe.

[jpak]

69. Flaming bags of douche await them

yup

[rl6214]

37. Oh the backlash

yup

[slackmaster]

32. Wow, California really was decades ahead of the curve on Castle Doctrine

:kick:

[ProgressiveProfessor]

39. It still needs a tune up to meet the more modern versions

[ProgressiveProfessor]

34. While some here rail against it with a mix of hyperbole and name calling, when the spittle settles,

it is a good thing.

There is a history in the US highly variable application of prior standards. This approach limits such injustices, though still allowing criminal prosecutions in exceptional cases. Most US citizens at some level remain suspicious of government and certainly do not hold it in the esteem that is customary in other nations. Things that remove government discretion are generally considered a good thing. Castle Doctrine falls into that category.

[iverglas]

45. man, I say "spittle" once

And the next day, everybody's saying it.

All together now:

Snork

[ileus]

48. Super Snork.

Kinda like the Super Sport only without the stripes.

[jmg257]

47. This just in...Both houses of the Wisconsin State Legislature have passed legislation...

"Castle Doctrine (UPDATE): Expanded self-defense bill on its way to Gov. Walker’s desk

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 4, 2011 – Both houses of the Wisconsin State Legislature have passed legislation to change Wisconsin’s self-defense law in the context of unlawful intrusions onto private property. The bill now goes to Gov. Scott Walker for final consideration"

[iverglas]

52. oh, the suspense!

"The bill now goes to Gov. Scott Walker for final consideration"

;)

[jmg257]

62. "...death and taxes, and... nt

[ProgressiveProfessor]

58. He will sign it and it will be a good thing