# Legal question on self-defense **URL:** \ **Category:** Factual Questions\ **Created:** [February 28, 2006, 11:28am UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439 "2006-02-28T11:28:12Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [February 28, 2006, 11:28am UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/1 "2006-02-28T11:28:12Z")
I just caught a rerun of the _Picket Fences_ episode in which a drug-dealer escaped conviction for the murder of two law officers by pleading self-defense and getting a jury to buy it. OK, I know it’s fiction but it get me wondering whether this defense could be (or indeed has been) used before. The situation was this. The drug dealer is sitting in his apartment with an Uzi in his hand (toying with it, cleaning it, whatever) when two police officers (with a legal warrant) break his door down. The positioning is such that when the officers enter the room the Uzi is pointed in their general direction. The dealer isn’t stupid. He knows that in this situation, with a gun pointed at them, the officers will open fire and kill him. Knowing this, and also knowing that he’s a dead man unless he takes action, in fear for his life he squeezes the trigger and mows down the cops. The judge instructed the jury that if they believed that the defendant was in fear for his life then the killings were justified and they must return a verdict of not guilty. (Which the jury, after they’d run through the obligatory _Twelve Angry Men_ pastiche, ultimately did. Was the judge correct in his instruction to the jury? Could a criminal really plead fear that the police would kill him to justify killing a cop? Has it ever actually happened? ---
**Author:** ![A.R.Cane](https://avatars.discourse-cdn.com/v4/letter/a/ee7513/32.png) [@A.R.Cane](https://boards.straightdope.com/u/A.R.Cane)\ **Post date:** [February 28, 2006, 1:22pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/2 "2006-02-28T13:22:07Z")
Similar things have happened in real life. There have been several, well publicized, cases where police raided the wrong place and killed, or caused the death, of occupants. I don’t recall anyone actually shooting and/or killing an officer, but I think your scenario is at least possible. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [February 28, 2006, 2:54pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/3 "2006-02-28T14:54:12Z")
That show was set in Wisconsin, so Wisconsin law would control. Part of it could depend on what the defendant was charged with. Here’s the statutory language covering self-defense: > [@Wis stat 938.48](#): > > (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. So a drug dealer holding a weapon, upon being confronted by police officers with guns, could not be acquited under the self-defense argument if he opened fire. The police officers are not engaged in an “unlawful interference” with his person or the person of another and no reasonable person could believe that a police officer executing a warrant on a drug dealer doesn’t have the power to do so. However, Wisconsin also has an “imperfect self-defense” statute which, if the drug dealer were charged with first degree intentional homicide, could mitigate the offense to second degree intentional homicide. > [@Wis stat 940.01](#): > > (2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05: > \ > (b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable. Whether this imperfect self-defense mitigation would be available to the drug dealer in the scenario I don’t know. It seems unlikely based on the plain text of the statute but there may be judicial rulings on the subject that I don’t know about. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [February 28, 2006, 3:20pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/4 "2006-02-28T15:20:43Z")
> [@Otto](#): > > That show was set in Wisconsin, so Wisconsin law would control. Part of it could depend on what the defendant was charged with. Here’s the statutory language covering self-defense: > > So a drug dealer holding a weapon, upon being confronted by police officers with guns, could not be acquited under the self-defense argument if he opened fire. The police officers are not engaged in an “unlawful interference” with his person or the person of another and no reasonable person could believe that a police officer executing a warrant on a drug dealer doesn’t have the power to do so. > > However, Wisconsin also has an “imperfect self-defense” statute which, if the drug dealer were charged with first degree intentional homicide, could mitigate the offense to second degree intentional homicide. > > Whether this imperfect self-defense mitigation would be available to the drug dealer in the scenario I don’t know. It seems unlikely based on the plain text of the statute but there may be judicial rulings on the subject that I don’t know about. OK, I understand that they couldn’t claim ‘unlawful interference’. But what about the second part of the Wisconsin statute you cite: Wis stat 938.48 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.** That would seem to apply in this case. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [February 28, 2006, 3:26pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/5 "2006-02-28T15:26:39Z")
It would seem to, at that. The other aspect of the proposed situation is if the drug dealer opened fire _after_ the police were in his domicile, but _before_ they identified themselves as police. If that could be proven, then I think the jury would be more likely to buy the defense. Of course, a properly executed entry by the police would make that a moot point. ---
**Author:** ![chrisk](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@chrisk](https://boards.straightdope.com/u/chrisk)\ **Post date:** [February 28, 2006, 3:27pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/6 "2006-02-28T15:27:24Z")
> [@aldiboronti](#): > > OK, I understand that they couldn’t claim ‘unlawful interference’. But what about the second part of the Wisconsin statute you cite: > > Wis stat 938.48 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.** > > That would seem to apply in this case. is the law structured as an ‘either-or’ or as an ‘all of the following’?? Can any one part of the statute be used to claim self-defense, or do they ALL have to be satisfied?? (I remember that picket fences episode, and being very impressed with the ending. Never really occured to me to check and see if what they said in the show matched up with real self-defense laws.) ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [February 28, 2006, 3:31pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/7 "2006-02-28T15:31:57Z")
> [@aldiboronti](#): > > OK, I understand that they couldn’t claim ‘unlawful interference’. But what about the second part of the Wisconsin statute you cite: > > Wis stat 938.48 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.** > > That would seem to apply in this case. No. Read the statute **Otto** cited again. It is conjunctive, not disjunctive. It sets out the conditions under which a person may use force. Sentence one requires that there be unlawful interference; sentence two requires that the amount of force used be limited to that reasonably necessary; sentence three requires a reasonable belief that force is necessary to prevent death or great bodily harm. You have to read the sentences together; you can’t pull a handful of words out of the statute. Only if all three conditions are met can you claim self-defense. As **Otto** pointed out, the situation posited in the OP cannot meet the first element of the statute, so self-defense should not have been available. ---
**Author:** ![chrisk](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@chrisk](https://boards.straightdope.com/u/chrisk)\ **Post date:** [February 28, 2006, 3:32pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/8 "2006-02-28T15:32:45Z")
> [@silenus](#): > > It would seem to, at that. > > The other aspect of the proposed situation is if the drug dealer opened fire _after_ the police were in his domicile, but _before_ they identified themselves as police. If that could be proven, then I think the jury would be more likely to buy the defense. Of course, a properly executed entry by the police would make that a moot point. No, part of the end of the episode was that he realized that they were police **before** they opened fire, but **after** he brought up his gun, and they walked into his line of fire. And that part of the relevant police procedure, which the suspect could be presumed to know, is that if you’re a cop in such a situation, you don’t arrest or demand surrender of a suspect who could shoot at any instant. You shoot first. Thus, the suspect, even though he knew that they were cops, had reason to feel in danger of his life, and a self-defense justification to shoot first himself. I’m not sure if that police procedure bit is accurate either, but it certainly sounded good. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [February 28, 2006, 3:33pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/9 "2006-02-28T15:33:40Z")
> [@aldiboronti](#): > > OK, I understand that they couldn’t claim ‘unlawful interference’. But what about the second part of the Wisconsin statute you cite: > > Wis stat 938.48 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.** > > That would seem to apply in this case. If there’s no unlawful interference then there’s no self-defense. The rest of the paragraph is laying out limits on the amount of force that may legally be used. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [February 28, 2006, 3:45pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/10 "2006-02-28T15:45:58Z")
So the judge in the program instructed the jury wrongly; self-defense would not apply in this case. In a real Wisconsin court, would he have prevented the defense team from using this strategy? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2006, 3:48pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/11 "2006-02-28T15:48:44Z")
> [@aldiboronti](#): > > So the judge in the program instructed the jury wrongly; self-defense would not apply in this case. In a real Wisconsin court, would he have prevented the defense team from using this strategy? Yes. If there is no evidence in front of the jury by which they may infer self-defense, then the defense cannot argue self-defense. ---
**Author:** ![chrisk](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@chrisk](https://boards.straightdope.com/u/chrisk)\ **Post date:** [February 28, 2006, 3:52pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/12 "2006-02-28T15:52:49Z")
> [@aldiboronti](#): > > So the judge in the program instructed the jury wrongly; self-defense would not apply in this case. In a real Wisconsin court, would he have prevented the defense team from using this strategy? Actually… the defense team might have been on the right side of real Wisconsin law… IIRC they argued that the defendant had reason to believe that he was being raided by members of another gang, (which would be unlawful interference,) and found out that it was the authorities too late, after shooting. Several people in the jury didn’t believe that, but it would be a valid argument under the law. Remember, the statute doesn’t require that the interference be unlawful, just that the shooter reasonably believes that it was. But yes, Old Judge Bone should have instructed the jury carefully about the unlawful interference requirement, that no matter how much the defendant feared for his life, if he realized before he shot that the objects of his fear were the legal authorities, then self-defense is invalid. Wonder how he missed that one. 😉 (The judge on Picket Fences, played by Ray Walston, was one of my favorite characters.) ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 28, 2006, 9:06pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/13 "2006-02-28T21:06:00Z")
Aren’t the police required to give some indication before breaking down the door? If they had shouted “Open up! Police!” before breaking in, then the defendant would have had time to put down the gun, and his failure to do so would have been to his detriment. But if they just broke down the door without warning, while he happened to have his gun in hand, what recourse did he have? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [February 28, 2006, 10:41pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/14 "2006-02-28T22:41:27Z")
> [@Chronos](#): > > Aren’t the police required to give some indication before breaking down the door? Yes, unless they have a no-knock warrant. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [February 28, 2006, 11:18pm UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/15 "2006-02-28T23:18:00Z")
> [@aldiboronti](#): > > Could a criminal really plead fear that the police would kill him to justify killing a cop? Has it ever actually happened? Something somewhat close (but not exact) to this happened recently in Mississippi. A guy shot/killed a police officer during a drug raid and claimed self defense. He’s on death row. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [March 1, 2006, 12:16am UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/16 "2006-03-01T00:16:45Z")
> [@Campion](#): > > Yes, unless they have a no-knock warrant. I wasn’t aware that this type of specific warrant existed but a little googling reveals that, although they’re supposed to be used sparingly and in very special circumstances, they’re becoming increasingly common. I can see the rationale (as one South Dakota statute has it, “there is probable cause to believe that if notice were given prior to its execution, the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result”) but there is certainly the risk that this would increase rather than diminish the risk to officers, not to mention the concomitant risk to any innocent occupants of the premises. ---
**Author:** ![CynicalGabe](https://avatars.discourse-cdn.com/v4/letter/c/3e96dc/32.png) [@CynicalGabe](https://boards.straightdope.com/u/CynicalGabe)\ **Post date:** [March 1, 2006, 1:30am UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/17 "2006-03-01T01:30:07Z")
What about in TV/Movies where the police are ready with a battering ram, and use it right after shouting ‘POLICE!’, not giving the people inside time to destroy anything, much less open the door? Is that realistic? Is that a way to get around not having a no-knock warrant? ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [March 1, 2006, 2:24am UTC](https://boards.straightdope.com/t/legal-question-on-self-defense/346439/18 "2006-03-01T02:24:03Z")
Some years ago, we had a case in Minnesota where the occupants of the house actually called 911 and reported that armed people were trying to break into their house, and they were holding the attackers off with their own guns. The 911 operator dispatched a police patrol car, who found a drug squad raid in progress. The drug squad claimed they had announced that they had called out “Police” before trying to break in; the occupants claimed that there had been no such warning. I don’t recall what the results of this were. * * * Seems like rival gangs could use this scenario to their advantage. Get a bunch of gang members, put them in vests saying “POLICE”, and break into a rival gangs headquarters. Once the occupants were all subdued, shoot them all, take all the drugs & money in the hourse, and disappear. The attacked gang may not fight back much, thinking it’s a police raid. But once this has happened, future police raids could be much more dangerous – the raidees might fight back, thinking it’s a raid by a rival gang. I know the prohibition-era gangs sometimes used killers disguised as uniformed police. Is this likely to happen again with current drug gangs?