## Facts

- Federal agents executing a valid warrant went to John F. Giminski’s home to seize two vehicles.
- Giminski was informed of the seizure, consulted counsel, and was advised to surrender the vehicles if the agents had a warrant; the warrant was shown to him.
- Giminski’s daughter Elva attempted to drive away in the minivan that was subject to the seizure; an agent pursued her with a siren, blocked her path, and a collision occurred.
- Giminski heard his other daughter scream that an agent was going to kill Elva and had a gun to her head.
- Giminski saw an agent pulling Elva from the vehicle while pointing a gun at her face.
- Giminski armed himself, ran outside, and aimed his gun at the agent; during a struggle over the firearm, shots were fired and both Giminski and the agent were injured.
- Giminski was convicted by a jury of attempted first-degree intentional homicide and possession of a firearm by a felon.
- The trial court refused to instruct the jury on defense of others; postconviction relief was denied.

## Issues

1. Whether the evidence, viewed most favorably to Giminski, provided “some evidence” supporting each element of defense of others so as to require a jury instruction.
2. Whether Giminski’s belief that potentially lethal force was necessary to protect his daughter from unlawful interference was objectively reasonable under the circumstances.

## Decision

- The court of appeals affirmed the judgment of conviction and the order denying postconviction relief.
- The court held Giminski was not entitled to a defense-of-others instruction because the objective reasonableness element could not be satisfied on the facts he described.
- Even assuming Giminski subjectively feared for his daughter’s safety, no reasonable person in his position could believe that confronting an agent with a firearm was necessary to protect her during execution of a warrant.

## Legal Principles

- A defendant is entitled to a requested theory-of-defense instruction only if there is “some evidence,” viewed in the defendant’s favor, supporting each element of the defense.
- Defense of others requires both (a) a subjective belief that force is necessary to prevent or terminate unlawful interference with another and (b) an objectively reasonable basis for that belief.
- Where the objective reasonableness element fails as a matter of law, a court may refuse to submit the defense to the jury.
- Knowledge that law enforcement is acting under apparent legal authority (e.g., a warrant) can defeat objective reasonableness for using force against officers during execution of duties.

## Conclusion

The court affirmed because, given Giminski’s knowledge that federal agents were executing a warrant, his belief that armed, potentially lethal intervention was necessary to protect his daughter from unlawful force was not objectively reasonable, so a defense-of-others instruction was properly denied.


State v. Giminski, 634 N.W.2d 604 (Wis. Ct. App. 2001)