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Wednesday, March 21, 2012

Michael Moore Could Have Been Killed Under Wisconsin's Castle Doctrine?

While the nation is focused upon the homicide of Trayvon Martin, it is important to remember that at the same time the tragic consequences of Wisconsin's own ALEC-backed license-to-kill statute are being felt in this state. The Wisconsin case, like that of Trayvon Martin, involves the death of an unarmed young black man (who also was known to wear the evil hoodie) and a prosecutor concluding that a new statute written by ALEC, rushed through by a GOP-controlled legislature, and signed by a Republican governor, bars him from prosecuting the person for taking this person's life. While there are many reasons why the Wisconsin case is not equivalent to that of Trayvon Martin (notably, no allegation that the Wisconsin shooter had any hint of a racial motivation and the Wisconsin shooter was not a vigilante who pursued his victim) both cases raise the same question of precisely how far the law should go in authorizing what can only be described as an individual Bush doctrine--i.e. authorization of a preemptive use of force.

As expected, the Washington County District Attorney has refused to charge the homeowner that took the life of 20-year-old Bo Morrison after Bo drunkenly stumbled into his home. This homicide was the first to arise after the GOP legislature passed and Governor Walker signed into law the ALEC-backed shoot-first law commonly referred to as the Castle Doctrine. While the outcome would have likely been the same absent the newly passed Castle Doctrine, WI's new statute eliminated all doubt as to the outcome. But what stands out is just how far the Washington County DA was willing to stretch the Castle Doctrine. The Castle Doctrine is applicable only if a person (1) unlawfully and (2) forcibly enters a home. But the Washington County DA essentially read the element of forcible entry out of the statute, which should be a troubling proposition to every Wisconsinite.

To an ordinary person, "forcibly" probably has the connotation of something along the lines of breaking and entering. When we come home, unlock the door, and walk inside, we wouldn't never think of ourselves as "forcibly" entering our homes, but if one were to use a scientific definition of "force" we would be. This debate over what "force" means in laws is nothing new. The Seventh Circuit's discussion in Flores v. Ashcroft, in an opinion authored by conservative stalwart Frank Easterbrook, is perhaps one of the most well-known discussions on this subject:

Every battery entails a touch, and it is impossible to touch someone without applying some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature—the sort that is intended to cause bodily injury, or at a minimum likely to do so.

The Washington County DA took the absurd, hyper-technical scientific view rejected by the Seventh Circuit in Flores. There were no signs of forced entry at the home Bo entered and thus the door Bo walked through was likely unlocked. But the Washington County DA nonetheless concluded that Bo Morrison "forcibly" entered the residence because he must have exerted some degree of "force" (in a scientific sense) when he opened the door. 

This interpretation of "forcibly" where all it takes is opening a door will undoubtedly lead to some disturbing consequences. Not only can it lead to the legally sanctioned murder of unarmed disorientated drunks like Bo Morrison who stumble through unlocked doors, but injured or endangered persons fleeing to an unlocked residence in search of help or even wayward children or the confused Alzheimer's sufferer who never utilize any degree of violent force to enter through an unlocked door can be lawfully murdered under this disturbing interpretation of the Castle Doctrine. 

Remember the scene in Bowling for Columbine where Michael Moore checks to see if Canadians really leave their doors unlocked? Yup, the doors are unlocked and more surprising is that the homeowners seem completely un-phased to unexpectedly find a overweight American opening their front door with a camera crew on their porch. But Moore had better not try that in Wisconsin; because he's "forcibly" entering a home by opening the door, he likely could be shot under Wisconsin's Castle Doctrine. But I suppose you never know; maybe the GOP legislators who pushed the Castle Doctrine had Michael Moore in mind. 

1 comment:

  1. "The Castle Doctrine is applicable only if a person unlawfully and forcibly enters a home."

    I'm not so sure about that last word:

    "A 'dwelling' encompasses 'any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use.' Wis. Stat. section 895.07(1)(h). 'Dwelling' also includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements. Id."

    Watch out hide-and-seekers.

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