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ON THE DEFENSIVE: Self defense or cold-blooded murder

By Anthony Cotton

Anthony Cotton

On Aug. 27, Michael Fitzsimmons awoke at 2 a.m. to the sound of noises coming from his garage. It was dark out and Fitzsimmons walked outside to investigate. Upon entering his garage, Fitzsimmons was confronted by a man later identified as James Babe.

Fitzsimmons announced himself as the homeowner and said that he was armed. He ordered the intruder to the ground. According to reports, Babe responded that he had a gun and began approaching Fitzsimmons.

Fitzsimmons fired two fatal shots, hitting Babe in the chest. As Fitzsimmons and the authorities later learned, Babe was unarmed.

Babe was no stranger to the criminal justice system. He committed a string of violent crimes in Waukesha County in the early 1990s (burglaries and a car theft).

Babe’s crime spree came to an end in 1992 when he was convicted of sexually assaulting a child and was sent to prison. This prison sentence did little to deter Babe — CCAP records reflect that he has been charged with Battery as a habitual criminal, attempted possession of marijuana and disorderly conduct since his release from prison.

This case is important because it renews the increasingly common question of under what circumstance a lawfully armed citizen may use his or her firearm.

Waukesha County District Attorney Brad Schimel has announced that he is reviewing the Babe shooting and that he will make a charging decision shortly.

Wisconsin is clearly moving in a “pro gun” direction. Because of recently enacted legislation, the bulk of Wisconsin residents will soon have the right to carry concealed firearms. At the same time, the Wisconsin Legislature is about to pass legislation which would afford more protection to homeowners such as Fitzsimmons.

A number of states have enacted variations of this so-called “castle doctrine.” In short, the doctrine establishes a presumption of reasonableness when a homeowner uses deadly force against an intruder. This reality is undoubtedly one of many considerations going through Schimel’s head as he decides whether to prosecute this case.

Wisconsin law allows a person to use deadly force only in very limited circumstances. Section 939.48 of the Wisconsin Statutes authorizes this use of force only when the actor believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

The Fitzsimmons case is complicated by the undeniable fact that deadly force may not be used to prevent or terminate an interference in one’s property. See ß 939.49 “it is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one’s property.”

Whether a homeowner is justified in using deadly force against an intruder is an extremely fact specific inquiry. In the Fitzsimmons case, however, it seems that his actions were reasonable at the inception and justified in the end. Not knowing the nature of the disturbance and given the time of night, it was reasonable for him to carry a gun while he investigated.

Babe was the intruder and was in the process of burglarizing the attached garage of Fitzsimmons’ home. At the moment he stood in the dark, face to face with this intruder, Fitzsimmons believed he was confronted with a life or death situation. He could either call Babe’s bluff, and gamble that he didn’t have a gun, or he could use force to protect himself from the perceived threat.

Ultimately there are always “unknowns” in these situations. Fitzsimmons had no way of knowing that the intruder had a long, violent record going back 20 years (although had he somehow possessed this knowledge, the shooting would be even more justified). Fitzsimmons also had no way of knowing whether or not Babe was armed.

To prosecute this case will send the wrong message — i.e. that a homeowner cannot use deadly force unless he or she is actually being attacked. This would contravene the lawmakers’ intention behind creating self-defense legislation and would ignore the fact that Wisconsin is on the verge of having “castle doctrine” legislation enacted.

If this case is prosecuted it will also have a chilling effect on the primary purpose of gun ownership — namely self-protection within the home.

A central tenet of the criminal justice system is deterrence, both general and specific. To prosecute Fitzsimmons would disrupt the efforts of those in the justice system seeking to provide a measure of general deterrence to those contemplating such crimes. If this homeowner is prosecuted it would embolden future criminals, giving them the confidence and assurance that homeowners are largely without the ability to protect themselves and their families.

Anthony Cotton is a partner at Kuchler & Cotton Law Offices in Waukesha. He is on the Board of Directors of the Wisconsin Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers and is the President of Juvenile 180 Diversion a program for young offenders in Waukesha. He was named a 2010 Up and Coming Lawyer by the Wisconsin Law Journal.

Read more on the Fitzsimmons case


  1. This man shot an unarmed man, his story has repeatedly changed. The victim’s criminal history was unknown and how that would have justified the killing escapes me. If this case is not prosecuted it will just result in more needles and reckless violence. Why is the man in Milwaukee charged and this guy is not. Let a jury decide.

  2. Dear Ripped: I think it is completely reasonable to protect yourself and/or your family when someone has clearly violated your space by breaking into what is considered your “safe zone”! The home owner had no way of knowing if this man was there to hurt him or not! His intentions clearly were not good if he was committing this type of crime in the first place. I think any reasonable person would make every effort to protect themselves. The criminal clearly didn’t run away when confronted, he came toward the home owner with something in his hand. This was clearly protection on the home owners part…this guys should not have been there in the first place! As a side note, I personally feel better that there is one less sex offender out there that the children of this world need to worry about. The homeowner should not be charged, we can not make it ok for these criminals to victimize us!!

  3. Here in PA, if you break into a home, it’s a shootable offense, \so to say.\ That is, PA now has the Castle Doctine and a citizen, in his home, or in a shopping center parking lot, has NO DUTY to retreat if threatened and in fear of their life.
    Break into most homes here and if the homeowner is present, you’ll probably end up in the morgue. PA is a \shall issue\ state for concealed carry, and the counties with the highest issued carry permits, have the lowest violent crimes; UNLIKE anti-gun locales like Philadelphia.
    PA is also an \Open Carry\ state – no permit needed by any person, LAWFULLY owning a firearm, and it can be openly carried WITHOUT a permit … just don’t get into a motor vehicle as it will be considered concealed. (Motorcycle is okay for open carry.)
    It’s NOT the \wild west\ here either – VERY FEW shootings by lawful gun owners … but that’s probably because it’s very common knowledge that many homeowners and shopkeepers are armed.

  4. YHe was a passenger with friends out drinking. Going to burglerize? Come on now. Probably knew each other & had an argument.

  5. Ripped.
    The facts in the case have not changed, It was night. A man broke in to a house not his own.
    He was confronted by the home owner. He moved forward was within 20 feet of homeowner.
    shot in the front not in the back. Some one breaks in to your house and is less than 20 feet from you and he moves forward after you confront him. If you would not shoot you deserve what ever happens to you.

  6. Having been in the same situation I fired, A man broke in my home at 2 o’clock in the morning I had Sons three and four years old and my wife to fear for as well.So without hesitation I open fire. He was unarmed. That was in West Virginia and they said it was a good shooting no problem. Now, I’ll ask you, what would you have done.

  7. The people that are upset at a man defending himself and his family are most likely criminals.

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