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Defenses – Privilege, § 939.45 – CCW, § 941.23

State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski

Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45.

As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one’s vicinity does not qualify as a ‘natural physical force’ under the law. See Dundon, 226 Wis. 2d at 666-67,” ¶30.

As to subs. (2), which incorporated self-defense and defense of others: General assertions of fear because of the high-crime nature of the locale, even when coupled with past instances of violence against the defendant aren’t enough to establish the “specific and imminent” threat required, ¶¶31-33.

As to subs. (6), other statutory or common law privileges: Dundon refused to recognize a common law privilege, ¶35, and Art. I § 25 does not create a “statutory” privilege, ¶36.

Also see:

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

Issue/Holding: 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 in § 939.45 don’t apply for largelyfact-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.”)

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