Thursday, September 1, 2011

Wisconsin Homeowners' Right to Kill Intruders

TMJ4 reports on the controversy over homeowner rights in the aftermath of a supposed DGU.

In Okauchee, Mike Fitzsimmons claims Babe broke into his garage in the middle of the night, that there was a confrontation and Fitzsimmons felt threatened.

"He told me he had a gun. He came at me with a gun. I told him to drop it, backed up, shot him, killed him," Fitzsimmons said of the shooting early Saturday morning.

In their investigation, police found Babe actually didn't have a gun. He did have a cell phone in his hand.

Current law states that a person may use deadly force only if they "reasonably believe" that doing so will save them or another person from death or serious injury.
The problem is when a homeowner unnecessarily kills someone, even if he realizes it, he always claims to have been justified. "I felt my life was in danger," is easy to say.

There are three possibilities:

1. In other cases it's true that he felt that way, and he was right, his life really was in imminent danger.

2. In some cases it's true that he felt that way but he was mistaken.

3. And in still other cases, he knew damn well his life was not in danger but being so outraged that some punk would dare to break into his home, he shoots and kills the intruder.

In all three, his description of events is more-or-less the same. The guys in the 3rd category are certainly not going to admit something that would work against them. The guys in the 2nd category, although they may be telling the truth about how they felt at the time, they've committed an unnecessary killing.

The current debate is to expand the rights of homeowners, as have many other states, pertaining to the requirement to retreat. In this case for example, it happened in the garage, the homeowner might have been able to retreat into the house. Some say they shouldn't have to.

To me this sounds like adolescent school-yard posturing, not a serious consideration of a life-or-death decision. If retreating is possible and would have reasonably diffused the situation, then wouldn't that mean the homeowner's life was not truly in jeopardy?

And, naturally you have the real fanatics, for whom it's very simple.
"I think the current law is ridiculous," said Kallay. "I should be able to do anything to protect my home my belongings and my family."
You get that, even "belongings." To protect belongings, these guys want the right to kill.

What's your opinion? Where's the right place to draw the line on the homeowner's right to use lethal force?

Please leave a comment.


  1. One should not have to retreat on their own property.

    I think the line is drawn in the right place.

  2. No possession in my home is worth taking a life for. There is no line drawn for material possessions. To suggest someone should die to protect any item in my home, outside those who live there, is nothing but material greed. All life is precious, even if it's a scumbag.

  3. Note:
    Pro-gun=Life isn't worth much
    pro-gun control=life is sacred.

    I hope the "right to life" crowd think about this without having their blinders on.

  4. Millions of people that did not break into other people's homes and did not threaten to kill the homeowner did not get shot that night.

  5. FWM, we don't know any of the things you present as facts.

    We don't know this person didn't enter the home by mistake. Even the cops while executing warrants have made this mistake.

    We don't have anyone's word for it other than the person left standing that there was any threat made.

    Clearly this person didn't have a gun, so he was NOT a threat. While there have been people who do stupid things with toy guns, this wasn't even a case of someone pretending a toy gun was a real gun.

    There are a lot of aps out there for phones, including those which make sci-fi weapon sounds. I may have missed one some where among the millions of aps out there, but I'm not aware of any apps which turn even the smartest most high tech cell phone into a gun, or a weapon of any kind. It is equally possible that this shooting victim was about to call 911 for assistance. Better to have a good security system, than to shoot someone. I'll be interested to see if there are any follow ups to this indicating if this guy had any priors or not. Just a hunch, but I'm betting not.

  6. Dog gone: “Clearly this person didn't have a gun, so he was NOT a threat.”

    Did you just say that?

  7. Yes, this person did not have a gun.

    We do not know other than the self-serving claim by the civilan who shot the person if he really claimed to have a gun, or if he in any way posed an actual threat. Logic would suggest that claiming to have a gun when you are an intruder, but NOT having one, is an illogical and therefore an improbable statement to make. It is more reasonable to believe this man had a cell phone in his hand to make a cell phone call at that moment.

    Or are you insisting a cell phone is somehow a firearm?

    If the homeowner could not see that the person was unarmed, and only carrying a cell phone then it would argue against this being an appropriate event to shoot someone.

    To quote from the four rules of gun safety recently published here:

    B = Be certain of your target and what’s beyond it. Positive target identification is a must. To shoot at something you only think is a legal target is gambling. In the case of human injury, that means gambling with human life. You must be absolutely certain and correct in judgment before deciding to shoot. Otherwise, it’s reckless behavior. In addition to identifying the target, a hunter must know that a safe backstop for their bullet is present in every shooting situation. We don’t always hit our target, and, in some cases, the bullet passes through the target. A safe backstop guarantees that no one will get hurt.

    This homeowner appears not to have been sure of his target, or the real risks or hazards in the circumstances in which he killed someone. Killing another human being is very serious, and if he did so wrongly, then he should face consequences for it. Fatally shooting someone who is unarmed is wrong.

    Unfortunately, those of you who resort to guns out of excessive fear want to make it legal to wrongly shoot someone just because you are afraid, and not have the shooting be judeged by objective evidence afterwards. THAT is also wrong.

    I would argue that all too often there is a pattern of fearfulness that appears to be specific to the right more so than other groups which predisposes you to shoot when you shouldn't. You believe things which are not objectively true or correct.

    An example of that would be something I've been researching recently for a penigma post commenting on the false assumption stated as fact by Florida governor Rick Scott, the assumption that those receiving public assistance or welfare had a much higher illegal use of drugs than other segments of the population. He asserted there were studies showing that.

    There aren't. But there are studies showing that Republicans believe things that are not true about people living in poverty, including a high amount of drug use.

    Drug users are frequently perceived as more dangerous than non-drug users; this would indicate that if the study showing conservatives believe that poor people are frequently drug users, conservatives would be more likely to feel disproportionately threatened by a poor person.

    I've read a pretty representative cross section of studies, and what the studies consistently indicate is that drug use is the same across economic groups, not more, not less for those in poverty.

    What the drug testing in Florida showed was not consistent with those studies; rather, it showed that there were even fewer people applying for assistance who used drugs than the national average, by a considerable margin of difference.

    I would probably be exactly the kind of juror Laci would like to see if he were defending the guy who was shot. I might be more of a challenge as a juror if he were defending the shoooter, because I'd be looking at prejudices and false assumptions the shooter might have towards the man who was shot. If the homeowner held false assumptions that made him fearful of the person he shot, then too bad, he still should pay the penalty for his improper use of deadly force. Deadly force should be evaluated on facts, not assumptions, especially not false assumptions.

  8. The defendant does not have the right to determine what constitutes "reasonable force" because the defendant would always maintain they acted reasonably and thus would never be guilty.

  9. Laci - it is up to the prosecution to prove that the defendant did not feel their life was threatened in states with castle doctrines in place right? Since the law in these cases states that it is lawful to shoot in these situations, then in order to prove the person broke the law that is what the prosecutor has to prove. Otherwise the defendant is presumed innocent right?

  10. They are not presumed innocent--they are pretty much given immunity from prosecution.

    Nice one.

    Of course, since I defend these people, anything that gets them back on the streets is fine by me.

    We want everything in place to make sure that criminals are well armed and loose on the streets.

  11. "It is equally possible that this shooting victim was about to call 911 for assistance."

    I'd love to be the operator who received that call. It would make for good comedy.

  12. Maybe AztecRed, you could be the person making such a call.

  13. There have been such calls; they make it onto the internet and tv.

    The reality is, people sometimes enter the wrong house.

  14. "Maybe AztecRed, you could be the person making such a call."

    If I were the product of a blue state household, I probably would have the audacity to make such a call.

  15. FWM likes to remind us that the percentages are low, whether we're talking about kids getting shot with daddy's gun or home intruders getting blown away by homeowners. The inference is, of course, the percentage is so low, it's acceptable. Those dead ones are expendable and in fact a small price to pay for all the freedom we enjoy.

  16. The homeowner had a gun and presumably a phone.

    The intruder had a phone.

    What should have been used was a phone, by one or both, not a gun.

    There is nothing about this incident which supports the use of lethal force.

  17. "FWM likes to remind us that the percentages are low, whether we're talking about kids getting shot with daddy's gun or home intruders getting blown away by homeowners. The inference is, of course, the percentage is so low, it's acceptable. Those dead ones are expendable and in fact a small price to pay for all the freedom we enjoy."

    Mike - I know you hate analagoies between guns and other everyday products, but you do realize that we accept a certain percentage of death in almost every activity as a small price for the freedoms we enjoy.

    People die building houses, driving cars, flying planes, mining coal, drilling for oil, growing food - the list goes on and on. So yes, we try to make things as safe as possible, but everyone knows that accidents will happen with just about anything - that is a fact of life.

  18. Except Jim, in your very reasonable argument, you leave out one thing. That other countries have made it safer than we have made it.

    THEY don't have the gun deaths and the gun injuries and the crimes with guns that we have here.

    Reducing the number of guns is ONE part of doing that, but I do not suggest it should be the only part.

    However, that reduction is a legitimate desideratum that address the requirements of the rights to 'life, liberty and the pursuit of happiness'.

    So unless and until you can come up with a way that widespread gun ownership does NOT result in widespread gun violence and crimes with guns, you don't really have a leg to stand on in your argument. Because YOUR version of gun ownership is violating all of the other rights of everyone else. You don't get to do that, nor do other gun owners. T

    hat is NOT a right which supersedes every other right of every other person, and frankly I'm rather tired of the argument that it does.


  19. "Except Jim, in your very reasonable argument, you leave out one thing. That other countries have made it safer than we have made it. "

    And you leave out another thing: In those countries: It's nearly impossible to own a gun unless you are wealthy or politically connected.

  20. If that is what it takes for an absence of gun violence, I'm all for it, Aztec Red.

    However your description is not in fact either fair, or accurate.

    Or objective.

    There are plenty of ordinary people who belong to gun clubs; they are not particularly prohibitively expensive, and who own one or more firearms.

    Unless you would care to substantiate that canard with something factual? Because I'm confident that is pure bull, and that you can't.

  21. I meant the person getting shot, AztecRed.

  22. Jim, You're absolutely right about my hating comparisons, but since you got us started let's take cars. The reason the terrible number of car deaths is "acceptable" is because we've done so much about minimizing them already. If cars were treated like guns there's be 100,000 or more fatalaties a year.

    Likewise, if guns were treated like cars, you know, licensing of users, registration and insurance requirments, there'd be 5,000 deaths instead of 30,000 plus.

    Then you could make your comparison and I'd accept it.

  23. Mikeb302000:

    Somewhere in your archives there is a comment of mine that does use a comparison that is a little more "apples to apples". It was in repsonse to something that mikeythewhiner put on a thread. He used the "automobiles/gunz" comparison. I put up some numbers, extrapolated from available data, suggesting that automobiles are used far more than guns by a much larger population and result in approximately the same number of deaths per year in the U.S. It was not debunked, afaia.

  24. Yes you did. I remember it. The guns to cars comparison is so stupid for several reasons, that's the best one.

    Most gun owners leave their gun at home and don't touch it most days. Most car owners use their car every day all day long.