What goes into a successful self-defense claim? Attorney weighs in

Wednesday’s shooting of a Milton man at his home, which prosecutors tentatively determined was in self-defense , led News 3 to take a deeper look at what goes into a successful self-defense claim.

Madison defense attorney Adam Welch, with Tracey Wood & Associates, who isn’t connected to the Milton case, said multiple factors go into self-defense claims and a prosecutor’s decision whether to file charges based on those claims.

Prosecutors have to have enough evidence to convince a jury that a shooter did not act in self-defense, he said.

“The first thing is: Did the person have an actual fear for their own safety or their own life?” Welch said. “Second of all, did they believe that to get rid of that fear, or terminate that fear, to terminate the threat, they had to do something about it that would cause harm to another person?”

Welch said in a shooting case, a self-defense claim hinges on whether the shooter acted objectively reasonable.

“Did they reasonably believe they were in danger? Did they reasonably believe they had to defend themselves?” Welch said prosecutors ask.

While Wisconsin is considered to be a “stand your ground” state, Welch said a shooter’s ability to retreat can be factored into his or her self-defense claim.

“There’s never an obligation to run away, but they are allowed to consider whether you can run away,” he said. “It doesn’t necessarily decide things one way or the other, though.”

Welch said knowledge about the state of mind of the person shot can also factor in a defense.

“If they know it’s an aggressive person, if they know it’s a volatile person, or a person they have a reason to believe is planning to do something violent, that certainly plays into (a defense),” Welch said.

Welch said there are cases where an initially justified shooting can turn into charges or a conviction.

“It frequently happens where somebody has a valid self-defense claim for the first shot but then they fire 10, 15, 20 shots and it gets harder and harder to say that the person still felt in danger at that point,” he said.

A 2013 study by the Violence Prevention Center found that between 2007-2011, FBI statistics showed that defensive gun uses occur on average of 67,740 times per year nationwide.