10-C-0863 Estate of Sustache v. Mathews

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Bankruptcy
Dischargeability; willful and malicious acts

Where the debtor was surrounded by drunk teenagers demanding a fight and feared he’d be jumped if he fled, his actions were not malicious.

“The parties agree that under Wisconsin law there is no duty to retreat. However, the Wisconsin case law and pattern jury instructions indicate that a trier of fact may consider whether the defendant had an opportunity to retreat when determining whether the defendant reasonably believed that the amount of force used was necessary to prevent or terminate the attack. State v. Wenger, 225 Wis. 2d 495, 503 (Ct. App. 1999); Wis. JI – Criminal 810 (2010). Plaintiffs contend that the bankruptcy court ‘ignored [Mathews’s] ability to retreat in its assessment of his reasonable beliefs [sic] of imminent danger.’ (Opening Br. [Docket #5] at 7.) This contention is belied by the record. The bankruptcy court explicitly credited Mathews’s claim that at the time Nino initiated the attack Mathews was surrounded by drunken teenagers who were demanding to witness a fight, and that Mathews feared that the crowd would have ‘jumped’ him had he tried to leave without fighting Nino. (Mem. Dec. at 11.) Clearly this factual finding played a role in the court’s determination that Mathews reasonably believed that his use of force used was necessary to terminate Nino’s attack, and thus I reject plaintiffs’ argument that the bankruptcy court committed some form of legal error by failing to consider whether Mathews could have retreated.”

10-C-0863 Estate of Sustache v. Mathews

E.D.Wis., Adelman, J.