State v. Tony Nollie, 2002 WI 4, on certification
For Nollie: Erich Straub
Issue: Whether defendant was entitled to assert the privilege of self-defense to the charge of carrying concealed weapon.
Holding:
¶24. To argue self-defense, Nollie’s offer of proof must indicate that he had an actual and reasonable belief of actual or imminent unlawful interference. In this case, there was no actual or imminent unlawful interference to speak of. As we stated in Dundon, a general and potential threat of interference is not enough to invoke the self- defense privilege; the threat must be imminent and specific. Dundon, 226 Wis. 2d at 667-68. Nollie asserts that the four men on the street corner presented a specific threat. Although we agree that they may have presented a more specific threat than the ones perceived by Dundon, the threats perceived by Nollie were not imminent and were still too general to invoke the privilege. Even when viewed in the light most favorable to Nollie, there was no indication that the men threatened, accosted, communicated, or even noticed Nollie at any time. This situation does not present a threat imminent and specific enough for Nollie to invoke the privilege of self-defense. Affording a person the privilege of carrying a concealed weapon for self-defense under such circumstances clearly does not comport with the legislature’s intent in criminalizing carrying a concealed weapon.¶25. Furthermore, when the police officers arrived, Nollie was still armed, he was sitting in his car, and the four young men were nowhere to be seen. Nollie does not contest this. At that point in time, the specific threat alleged by Nollie was gone. The only threat that Nollie could point to then was the high incidence of crime in the neighborhood– clearly not a specific and imminent threat.
¶26. In Coleman, we noted that it is difficult for a defendant claiming the defense of privilege to the crime of felon in possession of a firearm to show that the firearm was not possessed for longer than reasonably necessary. Coleman, 206 Wis. 2d at 211-12 (citing Perez, 86 F.3d at 737; Perrin, 45 F.3d at 874). The same holds true for the crime of carrying a concealed weapon. Here, even in the light most favorable to the defendant–that Nollie was not asleep but merely resting from an injury–any potential opportunity for him to assert a self-defense privilege had passed. To allow an individual to claim self-defense under such circumstances would essentially allow anyone walking in a ‘high crime neighborhood’ to conceal a weapon–a situation that, again, would eviscerate the legislature’s intent in making carrying a concealed weapon a crime.
The court specifically holds open “the question of when, if ever, the privilege of self-defense may be asserted for the crime of carrying a concealed weapon,” ¶1.
