Stabbing reveals MN-WI divide over ‘Castle Doctrine’

There’s not much geographical difference between the Wisconsin and the Minnesota sides of the St. Croix River. But where the law is concerned, they’re on two different planets.

Earlier this year, Peter Kelly, a married father of five from Wisconsin, died when he drove over to the Wisconsin side of the river to confront some men with whom he and others had been arguing while fishing.

Levi Acre-Kendall, 19, of Cambridge, Minn., has been charged with stabbing Kelly to death, allegedly as Acre-Kendall was getting in his car to leave.

This week, his defense attorney argued his client shouldn’t be prosecuted because Wisconsin’s “Castle Doctrine” law includes something Minnesota’s doesn’t — a car.

The assertion stems from action in the 2011 Wisconsin Legislature — officially “Act 94” — which extends a “presumption of immunity” to individuals who use deadly force in self-defense against persons unlawfully or forcibly entering their home, motor vehicle, or place of business.

Under Wisconsin’s law, it doesn’t matter if the person doing the killing had an opportunity retreat from the confrontation.

“By signing the castle doctrine into law, I am standing with those individuals who chose to protect their family and property,” Gov. Scott Walker said in a statement when signing the legislation.

The first test of the law involved a homeowner who accidentally shot to death someone who had passed out at his party earlier in the evening. He wasn’t prosecuted.

But in an article in Wisconsin Lawyer two years ago, Mark Hinkston, a Racine, Wis., attorney, noted that a question remained unresolved, a question that may be answered by the St. Croix Falls case: What constitutes “forcible entry” into a car?

For example, what if a driver encounters another driver engulfed in road rage? The berated driver pulls to the side of the road and the enraged driver follows, gets out of his car, and heads toward the targeted driver with a tire iron or, worse yet, a gun.

If the targeted driver sitting in her vehicle shoots the other driver in purported self-defense without waiting until he actually forcibly enters the vehicle, is she entitled to the castle doctrine’s reasonableness presumption (that is, would the other driver’s aggression and forward movement be reasonably construed as being “in the process of forcibly entering” the vehicle)?

This is all a moot point on the Minnesota side of the river, however.

Gov. Mark Dayton vetoed the so-called Stand Your Ground Bill, which would have expanded the presumption of immunity in self-defense cases to yards, decks, porches, vehicles, boats, motor homes and tents.

That is: A person wouldn’t have had the responsibility to retreat from a perceived threat.

And that distinction is important thanks to a decision from the Minnesota Supreme Court in 1999, when it ruled in the case of an Apple Valley man who shot a gang enforcer six times in his mobile home after an argument over $20 in a card game in 1967.

He was given a 14-year sentence. But the Supreme Court said the man didn’t have to use avenues of escape as alternative to killing a man.

It’s unlikely the charges in this latest case in Wisconsin will be dismissed. There are still too many questions — as outlined above — about what the Wisconsin Legislature meant when it extended the Castle Doctrine to vehicles.

And there’s a case working its way through appellate courts in Wisconsin about whether the Castle Doctrine applies if a confrontation starts in a dwelling or car, and then moves somewhere else — outside the car, for example. In a ruling last year, an appeals court judge said it doesn’t.

But it seems entirely likely that by the end of the trial of Levi Acre-Kendall, some of those questions will be answered.