00-3073 State v. Giminski

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“Even sliding inside Giminski’s shoes, and even allowing for a father’s extraordinarily strong urge to protect his child, we see absolutely nothing that established a basis for any reasonable belief justifying Giminski’s conduct. He knew the lawfulness of the agents’ seizure of the van. He knew that anything Elva might have been doing in attempting to drive that van away would have constituted her unlawful interference with the seizure. He knew, therefore, that Agent Hirt was lawfully entitled to prevent Elva from driving off in the van. And he could not have reasonably believed that Agent Hirt, in front of witnesses in a residential neighborhood, in the broad daylight of a summer afternoon, had any incentive to harm Elva or do anything more than necessary to prevent her from taking the van.

“Thus … even according to Giminski’s account, Giminski was aware that Agent Hirt was a federal agent executing a warrant and that Elva was acting in violation of his authority to seize the van, and, therefore, even if Agent Hirt was holding a gun to Elva’s head, Giminski could not have reasonably believed that Agent Hirt would have escalated his conduct from pointing the gun to pulling its trigger.

“Therefore, we conclude that Giminski could not have reasonably believed that Elva was suffering ‘an actual or imminent unlawful interference’ at the hands of Agent Hirt, and that Giminski could not have reasonably believed that confronting Agent Hirt with a gun was ‘the amount of force … necessary for the protection’ of his daughter. See Wis JI-Criminal 830. Accordingly, we conclude that the trial court correctly denied Giminski’s request for a jury instruction on the privilege of defense of others.”

Judgment and order affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Schellinger, J., Schudson, J.

Attorneys:

For Appellant: Edward J. Hunt, Milwaukee

For Respondent: David J. Becker, Madison; Robert D. Donohoo, Milwaukee