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Common Law Privileges – Self-Defense, as Applied to Carrying Concealed Weapon

State v. John V. Dundon, 226 Wis.2d 654, 594 N.W.2d 780 (1999), on certification
For Dundon: William S. Coleman, SPD, Milwaukee Appellate.


¶36 In Coleman, we recognized that “a narrow defense of privilege under Wis. Stat. § 939.45(6) exists to a charge of felon in possession of a firearm.” Coleman, 206 Wis. 2d at 210. The privilege contained a five-part test which was derived from numerous cases cited in the opinion.12 Dundon points to Coleman, but he fails to point to case law recognizing a common law defense of privilege for the crime of carrying a concealed weapon. We decline to extend the privilege recognized in Coleman to the unrelated crime of carrying a concealed weapon.

12 The court in Coleman established the following test to describe the common law privilege for felons in possession:

In order to be entitled to the defense, the defendant must prove: (1) the defendant was under an unlawful, present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury, or the defendant reasonably believes he or she is under such a threat; (2) the defendant did not recklessly or negligently place himself or herself in a situation in which it was probable that he or she would be forced to possess a firearm; (3) the defendant had no reasonable, legal alternative to possessing a firearm, or reasonably believed that he or she had no such alternative; in other words, the defendant did not have a chance to refuse to possess the firearm and also to avoid the threatened harm, or reasonably believed that he or she did not have such a chance; (4) a direct causal relationship may be reasonably anticipated between possessing a firearm and the avoidance of the threatened harm; (5) the defendant did not possess the firearm for any longer than reasonably necessary.

Because “(t)he crime of carrying a concealed weapon has many of the earmarks of a strict liability offense,” privilege defenses “must be applied restrictively.” The court concludes, after relatively lengthy analysis, that Dundon can’t avail himself of any privilege defense. The statutory defenses, § 939.45, don’t apply for fact-specific reasons. (This doesn’t mean that a CCW defendant can never take advantage of these defenses, only that the court “find[s] no possible basis for their application to the facts in this case.”)

State v. Coleman, 206 Wis. 2d 199, 210-11, 556 N.W.2d 701 (1996).

We also noted “that a defendant will be able to establish these elements ‘only on the rarest of occasions,’ because of the difficulty in proving that he or she did not have a reasonable legal alternative to violating the law, and that he or she possessed the firearm for a period of time no longer than reasonably necessary.” Id. at 212 (citing United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996); United States v. Perrin, 45 F.3d 869, 874 (4th Cir. 1995), cert. denied, 515 U.S. 1126 (1995)).


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