939.44 HistoryHistory: 1987 a. 399. 939.44 NoteJudicial Council Note, 1988: Sub. (1) codifies Wisconsin decisions defining “heat of passion” under prior s. 940.05. Ryan v. State, 115 Wis. 488 (1902); Johnson v. State, 129 Wis. 146 (1906); Carlone v. State, 150 Wis. 38 (1912); Zenou v. State, 4 Wis. 2d 655 (1958); State v. Bond, 41 Wis. 2d 219 (1969); State v. Williford, 103 Wis. 2d 98 (1981). 939.44 NoteTraditionally, provocation had 2 essential requirements. State v. Williford, supra., at 113. The first reflected in sub. (1) (b), is subjective. The defendant must have acted in response to provocation. This necessitates an assessment of the particular defendant’s state of mind at the time of the killing. The 2nd requirement, reflected in sub. (1) (a), is objective. Only provocation sufficient to cause a reasonable person to lose self-control completely is legally adequate to mitigate the severity of the offense.
939.44 NoteSub. (2) clarifies that adequate provocation is an affirmative defense to first-degree intentional homicide. Although adequate provocation does not negate the intent to kill such that the burden of persuasion rests on the state by constitutional principles (Mullaney v. Wilbur, 421 U.S. 684, (1975), Wisconsin has chosen to place the burden of disproving this defensive matter on the prosecution beyond a reasonable doubt. State v. Lee, 108 Wis. 2d 1 (1982). Since adequate provocation is not an affirmative defense to 2nd-degree intentional homicide, its effect is to mitigate the severity of an intentional homicide from first to 2nd degree. [Bill 191-S] 939.44 AnnotationAdequate provocation includes both subjective and objective components. As to the subjective component, the defendant must actually believe the provocation occurred, and the lack of self-control must be caused by the provocation. As to the objective component, the provocation must be such that would cause an ordinary, reasonable person to lack self-control completely, and the defendant’s belief that the provocative acts occurred must be reasonable. State v. Schmidt, 2012 WI App 113, 344 Wis. 2d 336, 824 N.W.2d 839, 11-1903. 939.44 AnnotationTo place provocation in issue, there need be only “some” evidence supporting the defense. The defendant’s proffered evidence of provocation must be examined as a whole to determine whether the “some evidence” threshold is satisfied. It is an all-or-nothing determination as to whether the jury hears any evidence of the affirmative defense. The adequate provocation inquiry is fact-driven. If the victim’s prior acts could contribute to a reasonable person’s loss of self-control at the time of the crime, the acts are relevant to the objective component of the defense. State v. Schmidt, 2012 WI App 113, 344 Wis. 2d 336, 824 N.W.2d 839, 11-1903. 939.45939.45 Privilege. The fact that the actor’s conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances: 939.45(1)(1) When the actor’s conduct occurs under circumstances of coercion or necessity so as to be privileged under s. 939.46 or 939.47; or 939.45(2)(2) When the actor’s conduct is in defense of persons or property under any of the circumstances described in s. 939.48 or 939.49; or 939.45(3)(3) When the actor’s conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office; or 939.45(4)(4) When the actor’s conduct is a reasonable accomplishment of a lawful arrest; or 939.45(5)(a)3.3. “Person responsible for the child’s welfare” includes the child’s parent, stepparent or guardian; an employee of a public or private residential home, institution or agency in which the child resides or is confined or that provides services to the child; or any other person legally responsible for the child’s welfare in a residential setting. 939.45(5)(b)(b) When the actor’s conduct is reasonable discipline of a child by a person responsible for the child’s welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death. 939.45(6)(6) When for any other reason the actor’s conduct is privileged by the statutory or common law of this state. 939.45 AnnotationThe privilege under sub. (3) for public officials acting with apparent authority did not apply to a volunteer fire fighter driving while under the influence of an intoxicant. State v. Schoenheide, 104 Wis. 2d 114, 310 N.W.2d 650 (Ct. App. 1981). 939.45 AnnotationA foster parent is a “person legally responsible for the child’s welfare” under sub. (5). State v. West, 183 Wis. 2d 46, 515 N.W.2d 484 (Ct. App. 1994). 939.45 AnnotationA mother’s live-in boyfriend did not have parental immunity under sub. (5). The boyfriend did not have legal responsibility for the mother’s children, and the term “parent” will not be interpreted to include persons in loco parentis. State v. Dodd, 185 Wis. 2d 560, 518 N.W.2d 300 (Ct. App. 1994). 939.45 AnnotationA convicted felon’s possession of a firearm is privileged under sub. (6) in limited enumerated circumstances. State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996), 95-0917. 939.45 AnnotationThere is no statutory or common law privilege for the crime of carrying a concealed weapon under s. 941.23. State v. Dundon, 226 Wis. 2d 654, 594 N.W.2d 780 (1999), 97-1423. 939.45 AnnotationSub. (6) incorporates excusable homicide by accident or misfortune. Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064. 939.45 AnnotationA defendant may demonstrate that the defendant was acting lawfully, a necessary element of an accident defense, by showing that the defendant was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what the person reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064. 939.45 AnnotationTo overcome the privilege of parental discipline in sub. (5), the state must prove beyond a reasonable doubt that only one of the following is not met: 1) the use of force must be reasonably necessary; 2) the amount and nature of the force used must be reasonable; and 3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant’s acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense. State v. Kimberly B., 2005 WI App 115, 283 Wis. 2d 731, 699 N.W.2d 641, 04-1424. 939.45 AnnotationTestimony supporting the defendant father’s assertion that he was beaten with a belt as a child was not relevant to whether the amount of force he used in spanking his daughter was objectively reasonable. A parent may not abuse his or her child and claim that conduct is reasonable based on his or her history of being similarly abused. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W.2d 719, 05-2282. 939.46(1)(1) A threat by a person other than the actor’s coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide. 939.46(2)(2) It is no defense to a prosecution of a married person that the alleged crime was committed by command of the spouse nor is there any presumption of coercion when a crime is committed by a married person in the presence of the spouse. 939.46(3)(3) A petitioner under s. 813.12 or 813.122, or an individual whose parent, stepparent, or legal guardian filed a petition under s. 813.122 on behalf of the individual as a child victim, as defined in s. 813.122 (1) (c), has an affirmative defense for an offense under s. 175.35 (2e) that is punishable under s. 175.35 (3) (b) 2., or for an offense under s. 941.2905, if the person prohibited from possessing a firearm was the respondent in the action under s. 813.12 or 813.122. 939.46 NoteJudicial Council Note, 1988: Sub. (1) is amended by conforming references to the statute titles created by this bill. Since coercion mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
939.46 AnnotationThe state must disprove an asserted coercion defense beyond a reasonable doubt. Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979). 939.46 AnnotationThe coercion defense is limited to the most severe form of inducement. It requires finding that the actor believed the actor was threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support giving an instruction. That the defendant reasonably believed that a companion would attempt to harm him or her if he or she did not comply with the companion’s orders only suggests that the safest course was to comply with companion’s orders, not that it was the only course. State v. Keeran, 2004 WI App 4, 268 Wis. 2d 761, 674 N.W.2d 570, 01-1892. 939.46 AnnotationFor the purposes of sub. (1m), an offense is “committed as a direct result” of a violation of the human-trafficking statutes if there is a logical, causal connection between the offense and the trafficking such that the offense is not the result, in significant part, of other events, circumstances, or considerations apart from the trafficking violation. “Committed as a direct result of the violation” does not require that the trafficker be aware of the offense or that it occur at the trafficker’s behest in furtherance of the trafficking violation. It simply requires that the offense occur as a direct result of the violation of the trafficking statutes. State v. Kizer, 2022 WI 58, 403 Wis. 2d 142, 976 N.W.2d 356, 20-0192. 939.46 AnnotationA Path to Protection: Collateral Crime Vacatur for Wisconsin’s Victims of Sex Trafficking. Mullins. 2019 WLR 1551.
939.47939.47 Necessity. Pressure of natural physical forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide. 939.47 HistoryHistory: 1987 a. 399. 939.47 NoteJudicial Council Note, 1988: This section is amended by conforming references to the statute titles created by this bill. Since necessity mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
939.47 AnnotationThe defense of necessity was unavailable to a demonstrator who sought to stop a shipment of nuclear fuel on the grounds of safety. State v. Olsen, 99 Wis. 2d 572, 299 N.W.2d 632 (Ct. App. 1980). 939.47 AnnotationHeroin addiction is not a “natural physical force” as used in this section. An addict, caught injecting heroin in jail, who was not provided methadone as had been promised, was not entitled to assert necessity against a charge of possession of heroin because his addiction ultimately resulted from his conscious decision to start using illegal drugs. State v. Anthuber, 201 Wis. 2d 512, 549 N.W.2d 477 (Ct. App. 1996), 95-1365. 939.48939.48 Self-defense and defense of others. 939.48(1)(1) 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 his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. 939.48(1m)(a)2.2. “Place of business” means a business that the actor owns or operates. 939.48(1m)(ar)(ar) 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: 939.48(1m)(ar)1.1. 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. 939.48(1m)(ar)2.2. 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. 939.48(1m)(b)(b) The presumption described in par. (ar) does not apply if any of the following applies: 939.48(1m)(b)1.1. The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time. 939.48(1m)(b)2.2. The person against whom the force was used was a public safety worker, as defined in s. 941.375 (1) (b), who entered or attempted to enter the actor’s dwelling, motor vehicle, or place of business in the performance of his or her official duties. This subdivision applies only if at least one of the following applies: 939.48(1m)(b)2.a.a. The public safety worker identified himself or herself to the actor before the force described in par. (ar) was used by the actor. 939.48(1m)(b)2.b.b. The actor knew or reasonably should have known that the person entering or attempting to enter his or her dwelling, motor vehicle, or place of business was a public safety worker. 939.48(2)(2) Provocation affects the privilege of self-defense as follows: 939.48(2)(a)(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant. 939.48(2)(b)(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant. 939.48(2)(c)(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense. 939.48(3)(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed. 939.48(4)(4) A person is privileged to defend a 3rd person 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 himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person’s intervention is necessary for the protection of the 3rd person. 939.48(5)(5) A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death. 939.48(6)(6) In this section “unlawful” means either tortious or expressly prohibited by criminal law or both. 939.48 NoteJudicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]
939.48 AnnotationWhen a defendant testified that the defendant did not intend to shoot or use force, the defendant could not claim self-defense. Cleghorn v. State, 55 Wis. 2d 466, 198 N.W.2d 577 (1972). 939.48 AnnotationSub. (2) (b) is inapplicable to a defendant if the nature of the initial provocation is a gun-in-hand confrontation of an intended victim by a self-identified robber. Under these circumstances the intended victim is justified in the use of force in the exercise of the right of self-defense. Ruff v. State, 65 Wis. 2d 713, 223 N.W.2d 446 (1974). 939.48 AnnotationWhether a defendant’s belief was reasonable under subs. (1) and (4) depends, in part, upon the parties’ personal characteristics and histories and whether events were continuous. State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989). 939.48 AnnotationEvidence of prior specific instances of violence that were known to the accused may be presented to support a defense of self-defense. The evidence is not limited to the accused’s own testimony, but the evidence may not be extended to the point that it is being offered to prove that the victim acted in conformity with the victim’s violent tendencies. State v. Daniels, 160 Wis. 2d 85, 465 N.W.2d 633 (1991). 939.48 AnnotationImperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with the defendant’s person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993). 939.48 AnnotationThe reasonableness of a person’s belief under sub. (1) is judged from the position of a person of ordinary intelligence and prudence in the same situation as the defendant, not a person identical to the defendant placed in the same situation as the defendant. A defendant’s psycho-social history showing past violence toward the defendant is generally not relevant to this objective standard, although it may be relevant, as in spousal abuse cases, when the actors are the homicide victim and defendant. State v. Hampton, 207 Wis. 2d 369, 558 N.W.2d 884 (Ct. App. 1996). 939.48 AnnotationThe right to resist unlawful arrest is not part of the statutory right to self-defense. It is a common law privilege that is abrogated. State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), 96-0914. 939.48 AnnotationWhile there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with the defendant’s person. A jury instruction to that effect was proper. State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App. 1999), 98-1739. 939.48 AnnotationWhen a defendant fails to establish a factual basis to raise self-defense, prior specific acts of violence by the victim have no probative value. The presentation of subjective testimony by an accused, going to a belief that taking steps in self-defense was necessary, is not sufficient for the admission of self-defense evidence. State v. Head, 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9, 99-3071. 939.48 AnnotationA defendant asserting perfect self-defense against a charge of first-degree murder must meet an objective threshold showing that the defendant reasonably believed that the defendant was preventing or terminating an unlawful interference with the defendant’s person and that the force used was necessary to prevent imminent death or great bodily harm. A defendant asserting the defense of unnecessary defensive force s. 940.01 (2) (b) to a charge of first-degree murder is not required to satisfy the objective threshold showing. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071. 939.48 AnnotationAlthough intentionally pointing a firearm at another constitutes a violation of s. 941.20, under sub. (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what the person reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064. 939.48 AnnotationWhen a defendant successfully makes self-defense an issue, the jury must be instructed as to the state’s burden of proof regarding the nature of the crime, even if the defense is a negative defense. Wisconsin JI-Criminal 801 informs the jury that it “should consider the evidence relating to self-defense in deciding whether the defendant’s conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another.” This instruction implies that the defendant must satisfy the jury that the defendant was acting in self-defense and removes the burden of proof from the state to show that the defendant was engaged in criminally reckless conduct. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011. 939.48 AnnotationWhen the circuit court instructed the jury to “consider the evidence relating to ... defense of others, in deciding whether defendant’s conduct created an unreasonable risk.... If the defendant was acting lawfully in defense of others, his conduct did not create an unreasonable risk to another,” the instruction on the state’s burden of proof on defendant’s defense of others defense was wholly omitted and the instructions were erroneous. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011. 939.48 AnnotationSub. (1m) does not justify continued use of deadly force against an intruder when that intruder is no longer in the actor’s dwelling. The applicable definition of the actor’s dwelling, s. 895.07 (1) (h), requires that the part of the lot or site in question be “devoted to residential use.” While s. 895.07 (1) (h) lists several parts of a residential lot that are part of a “dwelling,” it does not include a parking lot. The common denominator of the listed parts of dwellings is that all are property over which the actor has exclusive control. An apartment building parking lot is not exclusive to one tenant or devoted to the residential use of any one tenant. State v. Chew, 2014 WI App 116, 358 Wis. 2d 368, 856 N.W.2d 541, 13-2592. 939.48 AnnotationWisconsin law establishes a low bar that the accused must surmount to be entitled to a jury instruction on the privilege of self-defense. The accused need produce only “some evidence” in support of the privilege of self-defense. State v. Stietz, 2017 WI 58, 369 Wis. 2d 222, 880 N.W.2d 182, 14-2701. 939.48 AnnotationThe jury instruction for self-defense in this case was not erroneous. The circuit court gave the jury a general instruction on the state’s burden to establish guilt beyond a reasonable doubt. Because self-defense is a negative defense, the state disproves self-defense beyond a reasonable doubt if the state proves the elements of the crime beyond a reasonable doubt, specifically criminal negligence. Therefore, the jury was aware that the state had to prove criminal negligence—the element that self-defense would negate—beyond a reasonable doubt. State v. Langlois, 2018 WI 73, 382 Wis. 2d 414, 913 N.W.2d 812, 16-1409. 939.48 AnnotationThe privilege of perfect self-defense may exist in the factual context of a trespasser who kills a homeowner to thwart an attack by the homeowner. If a trespasser “reasonably believed” that a homeowner was “unlawfully interfering” with the trespasser’s person and that the homeowner’s purpose in attacking the trespasser was not because the homeowner viewed it as necessary to prevent imminent death or great bodily harm to himself but rather because he wanted to prevent the trespasser from reporting criminal activity, then the castle doctrine under sub. (1m), which would otherwise be presumed to make the homeowner’s conduct lawful, would not preclude the trespasser from invoking perfect self-defense. State v. Johnson, 2020 WI App 50, 393 Wis. 2d 688, 948 N.W.2d 377, 18-2318. 939.48 AnnotationThe law of self-defense, sub. (1), allows a defendant to threaten or intentionally use force against another if: 1) the defendant believes that there is an actual or imminent unlawful interference with the defendant’s person; 2) the defendant believes that the amount of force the defendant uses or threatens to use is necessary to prevent or terminate the interference; and 3) the defendant’s beliefs are reasonable. In this case, with no testimony that the defendant’s use of force was intentional and necessary, there was no reasonable view of the evidence that would have entitled the defendant to a self-defense instruction. State v. Ruffin, 2022 WI 34, 401 Wis. 2d 619, 974 N.W.2d 432, 19-1046.
