Proposed law to protect defense of home

Listen to this article

A controversial bill meant to expand the scope of state self-defense law could have helped a Burnett County man avoid a homicide charge for shooting an intruder, his lawyer said.

Proponents of the “Castle Doctrine,” named after the idea that people’s homes are their castles, say the proposal has little chance of passing.

But, if enacted, the bill would grant a presumption of reasonableness to those who use deadly force during a break-in, if they fear imminent harm or death.

Milwaukee attorney Craig Mastantouno believes the law would have protected Kyle Huggett, a Minneapolis, Minn., firefighter from being charged with second-degree intentional homicide for killing James Peach, who allegedly broke into Huggett’s Wisconsin home in January 2008.
Charges against Huggett were dismissed last month.

A Barron County judge found Huggett’s right to due process had been violated because authorities did not preserve reportedly threatening voicemail messages that could have cleared Huggett. The judge inherited the out-of-county case when then- Burnett County Circuit Judge Michael Gablemen went to the state Supreme Court and the Burnett County district attorney who charged Huggett was appointed to replace the new justice.

Proposed Law

Democratic Sen. Jim Holperin said no one case has driven the legislation, although he was aware of cases nationwide dealing with the issue; Holperin said he has pushed for the new law on behalf of the gun-owning constituents in his rural district, as well as the National Rifle Association and other self-defense and gun owner organizations.

But, Mastantuono said, the Huggett case captures the spirit of the legislation.

“This case is a perfect case study.” And, Mastantuono added, “It really, clearly looks like if the law was in place, Mr. Huggett likely would not have been charged.”

Holperin realizes the Castle bill may fail, as similar proposals have in 2005 and 2007. But he pushed for the law this year, and expects others will in the future, because he sees it as an important extension of self-defense rights.

“I’m sure opponents would argue it gives homeowners a get-out-of-jail-free card and that some homeowners, knowing about this law, if it were enacted, would perhaps feel emboldened to use a firearm in a case where that would not be entirely justified. I don’t believe that,” Holperin said.

The average homeowner, Holperin said, would not likely see a Castle privilege as a mandate to “point, aim and fire.”

“What this bill is meant to do is not change peoples’ thought process when they’re home is being vandalized or forcibly entered. It’s to protect them.”

Status Quo

As chair of the Senate Judiciary Committee, fellow Democratic Sen. Lena Taylor would have the power to push Holperin’s proposal to public hearing.

Taylor was not available because she was in budget caucus, but her chief of staff Eric Peterson said the senator had no plans to hold hearings on the bill, partly because she feels current law adequately addresses the self-defense issue.

“In our opinion, current law covers it,” Peterson said.

Marquette Law School Adjunct Professor Jeff Greipp agreed.

“Our defense of homeowners under present law is quite broad,” said Greipp, a former Milwaukee County prosecutor.

Current law not only provides for the reasonable use of deadly force, but also requires authorities reviewing reasonableness to consider the situation from the perspective of the homeowner at the time of the incident, not in hindsight, even if a hindsight analysis would show a person need not have used force.

“So, Wisconsin law justifies deadly force even when it’s technically a mistake,” Greipp said.

“With that existing already,” he added, “I think it’s fair to say it’s very rare that charges are considered against a homeowner.”

That said, Greipp acknowledged, the proposed changes could offer “tremendous” opportunities for the defense.

Mastantuono agreed, but said the law also could benefit prosecutors, particularly those who face community pressure to charge someone who might have acted reasonably in questionable circumstances.

“This would make kind of a uniform presumption, county to county, that someone who acts with lethal force deserves, at the least, the benefit of a presumption of reasonableness. It also gives the district attorney a little bit of cover, a little bit of reason not to charge someone in a case like this,” he said.