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Shooting while being attacked in street brawl does not justify self-defense instruction

State v. Devon L. Loggins, 2017AP2045-CR, 7/31/18, District 1 (unpublished); case activity (including briefs)

A fight between the Loggins and Jones families escalated into a violent melee involving at least 20 people. Some of them were punching Loggins, who saw a gun fall from one participant’s hoodie. He picked it up. Someone kicked him, and he started shooting. Two people died. Others were injured. At trial, Loggins sought a self-defense instruction, but the circuit court wouldn’t give it.

Loggins was convicted of, among other things, 1st-degree reckless homicide and 1st degree reckless endangerment. The issue for appeal was whether Loggins reasonably believed that his use of force was necessary to prevent imminent death or great bodily harm to himself, pursuant to §939.48(1) and WIS JI-Criminal 800 so that he received a self-defense instruction.

The court of appeals acknowledged that “Wisconsin law establishes a ‘low bar’ for an accused who seeks a jury instruction on the privilege of self-defense. State v. Schmidt, 2012 WI App 113, ¶12, 344 Wis. 2d 336, 824 N.W.2d 839. The accused need produce only “some evidence” in support of self-defense. Head, 255 Wis. 2d 194, ¶112.  The court of appeals must focus on the encounter from the defendant’s perspective. Stietz, 375 Wis. 2d 572, ¶22.  Opinion ¶19.  Given the circumstance just described, one might suppose that that Loggins was entitled to a self-defense instruction. But “no,” says the court of appeals:

¶22 The State concedes that under statute and case law, Loggins “may have reasonably believed that he needed to threaten deadly force to end the attack.” (Emphasis added.) It cites to State v. Watkins, 2002 WI 101, ¶55, 255 Wis. 2d 265, 647 N.W.2d 244, for the proposition that an accused who threatened to use deadly force may be entitled to a self-defense instruction with a lesser showing than would be needed if he had in fact used deadly force. But it argues that “[n]othing in Loggins’ version of events evinced a belief that his attackers were threatening him with imminent death or great bodily harm.”

¶23 Loggins’ testimony was that he had been hit and kicked prior to picking up the gun. At the point when he armed himself with the gun, he testified, he was kicked by someone who missed while aiming for his arm, possibly with the intention of kicking the gun out of his hand. The only threat Loggins has testified that he faced after he picked up the gun was a person, apparently unarmed, who kicked his arm.

¶24 The question is whether it was reasonable for Loggins to believe that the deadly force he used was necessary to stop imminent death or great bodily harm. Loggins’ burden was to produce “some evidence” that his belief was reasonable. There is no evidence that Loggins was threatened with imminent death or great bodily harm at the moment when he armed himself. His decision to shoot indiscriminately fifteen times therefore was not based on a reasonable belief that it was necessary. The trial court did not err in denying his request for the self defense instruction.

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