Wisconsin is a rod-and-gun state, with a hunting history that has fostered traditions of broad gun ownership and respect for the right to bear arms.
So how did Wisconsin get saddled with a “Castle Doctrine” law that mirrors some of the worst aspects of the Florida legislation that’s now at the center of the controversy over the killing of 17-year-old Trayvon Martin.
Not because sportsmen and women, law enforcement officers, legal scholars or grassroots citizens decided Wisconsin should borrow bad ideas from distant states.
Wisconsin has a "Castle Doctrine" law because the American Legislative Exchange Council, the corporate-funded group that aligns special-interest organizations and corporate donors with pliable legislators, made the Florida law "model legislation." Then ALEC-aligned political insiders such as Assembly Majority Leader Scott Suder, a national ALEC task-force member, and Governor Scott Walker, an ALEC alumnus, introduced, passed and signed “Castle Doctrine” legislation—despite warnings from Wisconsin law enforcement leaders and responsible gun owners that it was a poor fit for the state.
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How poor a fit became evident last week, when the district attorney in Wisconsin’s Washington County announced that he would not pursue a serious inquiry into the death of Bo Morrison, a 20-year-old Wisconsinite who was shot and killed in the village of Slinger. Morrison, who had been at an underage drinking party that was broken up by the police, was one of a number of young people who ran and hid in the surrounding neighborhood. He was hiding on the porch of an adjacent home when the homeowner—who knew police were in the area—shot him in the chest. The DA determined that the homeowner was protected from prosecution by the state’s new "Castle Doctrine."
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The Wisconsin case is complicated, and no one has suggested that Morrison was a perfect player. But he was unarmed. And there is no evidence that he physically or verbally threatened the shooter. For that reason, the decision of the DA , and the narrowing of options for a proper investigation by the "Castle Doctrine," has provoked outrage from citizens and some legislators. State Representative Chris Taylor, a Madison Democrat and a lawyer who was outspoken in her opposition to the measure last year, now says: “It is heartbreaking that the legislature allowed this reckless law to go forward and now a young man is dead,” concluded Taylor. “This law encourages people to resort to vigilantism and use deadly force instead of calling the police. This is a barbaric law that must be immediately repealed.”
But how did the legislature enact a measure that is so out-of-synch with the state’s traditionally well reasoned approach to gun rights, self-defense protections and the rule of law?
Wisconsin circumstance is like that of many states that find themselves with laws that owe more to the heavy hand of the American Legislative Exchange Council—and the determined lobbying of the National Rifle Association—than to realities on the ground of the concerns of citizens.
The genesis for the Wisconsin law Wisconsin was a 2005 Florida law, which provided immunity to individuals who use deadly force against unarmed persons whom they imagine to be threatening. The Wisconsin law provides that immunity for shootings that take place on or around dwellings, businesses and vehicles, while the Florida law includes broader "stand your ground" language that protects shootings in public spaces. But the distinction is slimmer than it seems, as Wisconsin statutes extend the definition of a "dwelling" out to porches, fence lines and sidewalks.
Florida’s law was sponsored by Republican legislators who were ALEC members. They dismissed explicit and repeated warnings that this measure would encourage shootings like that of Trayvon Martin. The same went for Florida Governor Jeb Bush, who signed the measure and declared it a “common sense” reform.
While the ink was still drying on the Florida law, ALEC moved to take it nationwide. Working with NRA lobbyists and representatives of big retailers that profit from gun sales, ALEC’s "Criminal Justice Task Force" (now the "Public Safety and Elections Task Force") developed "Castle Doctrine" model legislation for promotion in other states.
For the most part, ALEC’s model legislation is designed to ease taxes and regulations for corporations, while weakening unions and undermining tort laws. But the shadowy Koch brothers–funded network—which brings together state legislators who cannot think for themselves with corporate interests and pressure groups that are more than happy to think for then—dabbles in electoral and public safety issues.
That’s what happened seven years ago, when ALEC’s members approved model legislation that mirrored the Florida law’s assertion that a gunman can use "deadly force if he or she reasonably believes it is necessary."
ALEC-aligned lawmakers in states across the country began promoting the model legislation—sometimes in mirror form, sometimes with modest alterations—advanced. After Republicans gained complete control of state legislatures in states such as Wisconsin after the 2010 elections, the process accelerated. According to the Center for Media and Democracy, which organized the ALEC Exposed project, “Since becoming an ALEC model, sixteen states have passed laws that contain provisions identical or similar to (Florida’s law)."
ALEC even highlighted the fight on its "legislative scorecard”—giving states extra credit for passing it. Wisconsin did so last fall, when Assembly Majority Leader Suder and Senate Majority Leader Scott Fitzgerald moved a "Castle Doctrine" bill to the top of the legislative agenda.
Suder and Fitzgerald, of course, deny they are ALEC automatons. But Suder has for a number of years been a member of the ALEC Public Safety and Elections Task Force that taken the lead in promoting the "Castle Doctrine" model legislation. He has also served as ALEC’s legislative chairman for Wisconsin. Fitzgerald has been a regular as national ALEC events and went out of his way as he assumed the majority leader position to talk up his enthusiasm for legislative initiatives he learned about at the group’s post-2010 election conference in Washington.
Suder, Fitzgerald and Walker advanced the ALEC model legislation in Wisconsin even though the state a strong tradition of respecting "self-defense" claims in shooting cases, and even though the State Bar of Wisconsin’s Criminal Law Section argued that new legislation was unnecessary to protect homeowners from unfair prosecutions. Indeed, Marquette Law School Professor Gregory O’Meara, a former chairman of the Criminal Law Section, warned with regard to the "Castle Doctrine" proposal that: “It could actually give a presumption in favor of a murderer."
What happens when legislators pass laws without considering their consequences—or the unique circumstances of the state in which they are being passed? The Florida Department of Law Enforcement suggests that killings that have gotten a "justifiable homicide" pass have tripled since Jeb Bush signed that state’s law. And as Representative Taylor noted after the Washington County prosecutor deferred to the "Castle Doctrine" in the Slinger, Wisconsin, case, “Now a young man, like in Florida, has been killed, and a family mourns the loss of a son. What a senseless tragedy.”
Florida may have been the pioneer. But thanks to the American Legislative Exchange Council, it is now just one of many states, including Wisconsin, that have enacted variations on the "Castle Doctrine." These laws are not products of the political or legislative processes of sovereign American states, nor are they smart extensions of necessary protections for gun ownership. They are one-size-fits-all legislative "fixes" for problems that never existed—imposed upon states that now must deal with the messes that ALEC creates.
