State v. John F. Giminski, 2001 WI App 211, PFR filed 9/20/01
For Giminski: Edward J. Hunt
Issue: Whether the defendant was entitled to invoke the privilege of defense of others, § 939.48(4), in using potentially deadly force against police officers who had pulled a gun on his daughter while executing a valid warrant.
¶13. (T)he privilege of defense of others, like the privilege of self-defense, has two components, both of which must be satisfied by a defendant claiming the privilege: (1) subjective-the defendant must have actually believed he or she was acting to prevent or terminate an unlawful interference; and (2) objective-the belief must be reasonable. See Jones, 147 Wis. 2d at 814-15.”
The evidence doesn’t support the reasonableness of any belief in the use of deadly force:
¶17. Thus, as the State emphasizes, even according to Giminski’s account, Giminski was aware that Agent Hirt was a federal agent executing a warrant and that Elva was acting in violation of his authority to seize the van, and, therefore, even if Agent Hirt was holding a gun to Elva’s head, Giminski could not have reasonably believed that Agent Hirt would have escalated his conduct from pointing the gun to pulling its trigger. Indeed, as the developments in this case confirmed, the citizen who unreasonably interferes with an agent’s effort to prevent a third party’s interference with the execution of a warrant, not the agent, often is the one who endangers all involved.
¶18. Although no Wisconsin court has directly addressed the propriety of Wis JI-Criminal 830 under circumstances like these, the State’s arguments find some support in State v. Hobson, 218 Wis. 2d 350, 353, 577 N.W.2d 825 (1998), where the supreme court abrogated the common-law privilege to ‘forcibly resist an unlawful arrest in the absence of unreasonable force.’ The State’s arguments also are grounded in solid reasoning, as articulated in United States v. Branch, 91 F.3d 699, 714 (5th Cir. 1996), where the federal court commented that the general principles governing the law of self-defense and defense of others ‘must accommodate a citizen’s duty to accede to lawful government power and the special protection due federal officials discharging official duties.’ We agree with the federal court.