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Bucher Law Group, LLC

2011 Assembly Bill 69 - The Castle Doctrine

Is a person's home truly their castle? A great deal of ink has been spread across the media sources lately relative to the Castle Doctrine. There has been a great deal of debate as to whether this bill was necessary. Under current law, an individual is entitled to use deadly force (i.e., force that is intended or likely to cause death or great bodily harm) when they "reasonably, subjectively and objectively" believe that such force is necessary to prevent death or great bodily harm to themselves or a third party.

If an individual is entering a person's home at any time and the person in the home reasonably believes that deadly force is necessary, current law governs this situation. Under the Castle Doctrine, the bill simply creates a presumption for the Court that under certain circumstances, the force was necessary and, therefore, removes the fact-finding issue as to the subjective or objective belief of the individual, if the use of deadly force occurs under certain circumstances.

These circumstances include 1) if the individual against whom the force was used was in the process of unlawfully or forcibly entering, or had already forcibly entered, the residence of the person who used the force; 2) the person who used the force was present in the residence; and 3) the person who used the force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred. There are certain exceptions where this presumption does not apply but, again, this presumption removes from the fact finder whether the subjective or objective belief was present and substitutes this presumption.

Likely the largest issue this bill creates is an immunity provision from civil liability for the individual who used deadly force. That immunity does not currently exist under Wisconsin law and, by creating this immunity for the individual who used the deadly force, the filing of frivolous lawsuits against homeowners and business owners can be avoided, along with costly litigation expenses that can be recovered under this bill.

Frankly, it is my opinion that the passage of this bill will not increase the number of shootings, and will not make Wisconsin the Wild West. It will simply again forcibly indicate that the use or threatened use of deadly force is appropriate under certain circumstances. Now the law presumes that force is reasonable and that the individual cannot be sued, simply because he or she is entitled to civil liability. The immunity provision is probably the most important section of the Castle Doctrine, and one that has been overlooked by the media.

Should you have any questions or would like further guidance or assistance on this important issue, please contact Bucher Law Group, LLC, and we would be happy to assist you through the process.

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