939.45(5)(a)3.
3. "Person responsible for the child's welfare" includes the child's parent, stepparent or guardian; an employe 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 Annotation
Accused had no apparent authority to drive while under influence of intoxicant. State v. Schoenheide, 104 W (2d) 114, 310 NW (2d) 650 (Ct. App. 1981).
939.45 Annotation
A foster parent is a "person legally responsible for the child's welfare" under sub. (5). State v. West, 183 W (2d) 46, 515 NW (2d) 484 (Ct. App. 1994).
939.45 Annotation
A 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 W (2d) 560, 518 NW (2d) 300 (Ct. App. 1994)
939.45 Annotation
A convicted felon's possession of a firearm is privileged under sub. (6) in limited enumerated circumstances. State v. Coleman, 206 W (2d) 198, 556 NW (2d) 701 (1996).
939.45 Annotation
The common law privilege to forcibly resist an unlawful arrest is abrogated. State v. Hobson, 218 W (2d) 350, 577 NW (2d) 825 (1998).
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 History
History: 1975 c. 94;
1987 a. 399.
939.46 Note
Judicial 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 Annotation
State must disprove beyond reasonable doubt asserted coercion defense. Moes v. State, 91 W (2d) 756, 284 NW (2d) 66 (1979).
939.47
939.47
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 History
History: 1987 a. 399.
939.47 Note
Judicial 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 Annotation
Defense of necessity is unavailable to demonstrator who seeks to stop shipment of nuclear fuel on grounds of safety. State v. Olsen, 99 W (2d) 572, 299 NW (2d) 632 (Ct. App. 1980).
939.47 Annotation
Heroin addiction is not a "natural physical force" as used in this section. An addict, caught injecting heroin in jail, who was not provided methadone in jail as had been promised to him, was not entitled to assert the necessity defense to a charge of possession of heroin because his addiction ultimately resulted from his conscious decision to start using illegal drugs. State v. Anthuber, 201 W (2d) 512, 549 NW (2d) 477 (Ct. App. 1996).
939.48
939.48
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(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 third 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 third person would be privileged to act in self-defense and that the person's intervention is necessary for the protection of the third 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 History
History: 1987 a. 399;
1993 a. 486.
939.48 Note
Judicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]
939.48 Annotation
When a defendant testifies he did not intend to shoot or use force, he cannot claim self-defense. Cleghorn v. State, 55 W (2d) 466, 198 NW (2d) 577.
939.48 Annotation
Sub. (2) (b) is inapplicable to the defendant where the nature of the initial provocation is the gun-in-hand confrontation of an intended victim by a self-identified robber, for under these circumstances the intended victim is justified in the use of force in the exercise of his right of self-defense. Ruff v. State, 65 W (2d) 713, 223 NW (2d) 446.
939.48 Annotation
Whether defendant's belief was reasonable under (1) and (4) depends, in part, upon parties' personal characteristics and histories and whether events were continuous. State v. Jones, 147 W (2d) 806, 434 NW (2d) 380 (1989).
939.48 Annotation
Discussion of self-defense and evidence of victim's reputation for violence. State v. Daniels, 160 W (2d) 85, 465 NW (2d) 633 (1991).
939.48 Annotation
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 W (2d) 860, 501 NW (2d) 380 (1993).
939.48 Annotation
The 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, where the actors are the homicide victim and defendant. State v. Hampton, 207 W (2d) 369, 558 NW (2d) 884 (Ct. App. 1996).
939.48 Annotation
The right to resist unlawful arrest is not part of the statutory right to self defense, but is a common law privilege which is abrogated. State v. Hobson, 218 W (2d) 350, 577 NW (2d) 825 (1998).
939.48 Annotation
A person may employ deadly force against another, if such person reasonably believes such force necessary to protect a 3rd person or one's self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F (2d) 79.
939.48 Annotation
Self-defense—prior acts of the victim. 1974 WLR 266.
939.48 Annotation
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
939.49
939.49
Defense of property and protection against retail theft. 939.49(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 the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. 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.
939.49(2)
(2) A person is privileged to defend a 3rd person's property 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 his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employe or agent. An official or adult employe or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
939.49(3)
(3) In this section "unlawful" means either tortious or expressly prohibited by criminal law or both.
939.49 Annotation
Flight on the part of one suspected of a felony does not, of itself, warrant the use of deadly force by an arresting officer and it is only in certain aggravated circumstances that a police officer may shoot the person he is attempting to arrest. Clark v. Ziedonis, 368 F Supp. 544.
PENALTIES.
939.50
939.50
Classification of felonies. 939.50(2)
(2) A felony is a Class A, B, BC, C, D or E felony when it is so specified in
chs. 939 to
951.
939.50(3)
(3) Penalties for felonies are as follows:
939.50(3)(b)
(b) For a Class B felony, imprisonment not to exceed 40 years.
Effective date note
NOTE: Par. (b) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(b) For a Class B felony, imprisonment not to exceed 60 years.
939.50(3)(bc)
(bc) For a Class BC felony, a fine not to exceed $10,000 or imprisonment not to exceed 20 years, or both.
Effective date note
NOTE: Par. (bc) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(bc) For a Class BC felony, a fine not to exceed $10,000 or imprisonment not to exceed 30 years, or both.
939.50(3)(c)
(c) For a Class C felony, a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both.
Effective date note
NOTE: Par. (c) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(c) For a Class C felony, a fine not to exceed $10,000 or imprisonment not to exceed 15 years, or both.
939.50(3)(d)
(d) For a Class D felony, a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.
Effective date note
NOTE: Par. (d) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(d) For a Class D felony, a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both.
939.50(3)(e)
(e) For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both.
Effective date note
NOTE: Par. (e) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(e) For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.
939.51
939.51
Classification of misdemeanors. 939.51(2)
(2) A misdemeanor is a Class A, B or C misdemeanor when it is so specified in
chs. 939 to
951.
939.51(3)
(3) Penalties for misdemeanors are as follows:
939.51(3)(a)
(a) For a Class A misdemeanor, a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.
939.51(3)(b)
(b) For a Class B misdemeanor, a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both.
939.51(3)(c)
(c) For a Class C misdemeanor, a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.
