Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB544 Compare Versions

Only one version of the bill is available at this time.

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4	4	2023 ASSEMBLY BILL 544
5	5	October 18, 2023 - Introduced by Representatives MOSES, RETTINGER, DONOVAN,
6	6	SCHUTT, O'CONNOR, DITTRICH, ROZAR, GUNDRUM, MURSAU, WICHGERS, BODDEN
7	7	and BRANDTJEN, cosponsored by Senators HUTTON, BRADLEY, WANGGAARD,
8	8	JAMES, FELZKOWSKI and NASS. Referred to Committee on Judiciary.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to renumber and amend 968.02 (3); to amend 968.26 (2) (b), 968.26
11	11	(2) (c) and 968.26 (2) (d); and to create 968.02 (3) (b) 2. of the statutes; relating
12	12	to: court-issued criminal complaints if the person's actions were in
13	13	self-defense.
14	14	Analysis by the Legislative Reference Bureau
15	15	Under current law, a district attorney has the discretion as to whether or not
16	16	to issue a complaint to charge a person with a crime. Current law also provides that,
17	17	if a district attorney refuses to issue a complaint against a person, a judge may
18	18	conduct a hearing to determine if there is probable cause to believe that the person
19	19	committed a crime and, if so, issue a complaint.
20	20	Under this bill, if the district attorney refused to issue the complaint because
21	21	the person has a defense of self-defense, the court may not conduct a hearing or issue
22	22	a complaint unless the court has new evidence that the person's actions were not
23	23	self-defense under the law.
24	24	Under current law, a person is privileged to threaten or intentionally use force
25	25	against an actor to prevent or terminate what the person reasonably believes to be
26	26	an unlawful interference with himself or herself or another person by the actor. The
27	27	person may intentionally use only force or threat as the person believes is necessary
28	28	to prevent or terminate the interference. Certain presumptions apply if the person
29	29	is in his or her house, business, or vehicle. In addition, if the person engaged in
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35	35	ASSEMBLY BILL 544
36	36	unlawful conduct that was likely to provoke an attack and does provoke an attack,
37	37	the person generally loses the privilege of self-defense.
38	38	The people of the state of Wisconsin, represented in senate and assembly, do
39	39	enact as follows:
40	40	SECTION 1. 968.02 (3) of the statutes is renumbered 968.02 (3) (a) and amended
41	41	to read:
42	42	968.02 (3) (a) If a district attorney refuses or is unavailable to issue a
43	43	complaint, a circuit judge may permit the filing of a complaint, if the judge finds there
44	44	is probable cause to believe that the person to be charged has committed an offense
45	45	after conducting a hearing.
46	46	(b) 1. If the a district attorney refuses to issue a complaint, a circuit judge may
47	47	permit the filing of a complaint, if the judge finds there is probable cause to believe
48	48	that the person to be charged has committed an offense after conducting a hearing.
49	49	The district attorney has refused to issue a complaint, he or she shall be informed
50	50	of the hearing and may attend. The
51	51	(c) A hearing under this subsection shall be ex parte without the right of
52	52	cross-examination.
53	53	SECTION 2. 968.02 (3) (b) 2. of the statutes is created to read:
54	54	968.02 (3) (b) 2. Notwithstanding subd. 1., a circuit court may not conduct a
55	55	hearing or permit the filing of a complaint if the district attorney refused to issue a
56	56	complaint because the person to be charged has a defense of privilege of self-defense
57	57	or defense of others in accordance with s. 939.48 unless there is new evidence that
58	58	supports the charge and, after conducting a hearing to consider the new evidence,
59	59	the judge finds there is probable cause to believe that the person did not act in
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82	82	SECTION 2
83	83	ASSEMBLY BILL 544
84	84	accordance with s. 939.48. The district attorney shall be informed of the hearing and
85	85	may attend.
86	86	SECTION 3. 968.26 (2) (b) of the statutes is amended to read:
87	87	968.26 (2) (b) 1. If a district attorney receives a referral under par. (am), the
88	88	district attorney shall, within 90 days of receiving the referral, issue charges or
89	89	refuse to issue charges.
90	90	2. If the district attorney refuses to issue charges, the district attorney shall
91	91	forward to the judge in whose jurisdiction the crime has allegedly been committed
92	92	all law enforcement investigative reports on the matter that are in the custody of the
93	93	district attorney, his or her records and case files on the matter, and a written
94	94	explanation why he or she refused to issue charges. The judge may require a law
95	95	enforcement agency to provide to him or her any investigative reports that the law
96	96	enforcement agency has on the matter.
97	97	3. The judge shall convene a proceeding as described under sub. (3) if he or she
98	98	determines that a proceeding is necessary to determine if a crime has been
99	99	committed. When determining if a proceeding is necessary, the judge may consider
100	100	the law enforcement investigative reports, the records and case files of the district
101	101	attorney, and any other written records that the judge finds relevant. The judge may
102	102	not convene a proceeding if the district attorney refused to issue charges because the
103	103	person to be charged has a defense of privilege of self-defense or defense of others
104	104	in accordance with s. 939.48 unless there is new evidence that supports that the
105	105	person did not act in accordance with s. 939.48 and the judge determines that a
106	106	proceeding is necessary.
107	107	SECTION 4. 968.26 (2) (c) of the statutes is amended to read:
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133	133	SECTION 4 ASSEMBLY BILL 544
134	134	968.26 (2) (c) In a proceeding convened under par. (b) 3., the judge shall
135	135	subpoena and examine under oath the complainant and any witnesses that the judge
136	136	determines to be necessary and appropriate to ascertain whether a crime has been
137	137	committed and by whom committed. The judge shall consider the credibility of
138	138	testimony in support of and opposed to the person's complaint.
139	139	SECTION 5. 968.26 (2) (d) of the statutes is amended to read:
140	140	968.26 (2) (d) In a proceeding convened under par. (b) 3., the judge may issue
141	141	a criminal complaint if the judge finds sufficient credible evidence to warrant a
142	142	prosecution of the complaint. The judge shall consider, in addition to any testimony
143	143	under par. (c), the law enforcement investigative reports, the records and case files
144	144	of the district attorney, and any other written reports that the judge finds relevant.
145	145	SECTION 6.0Initial applicability.
146	146	(1) This act first applies to refusals made by a district attorney on the effective
147	147	date of this subsection.
148	148	(END)
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