# State v. Brown

> Wisconsin Supreme Court · April 27, 1982 · 107 Wis. 2d 44

URL: https://www.frixlaw.com/law-library/cases/9685042

## Case

- **Full name:** State of Wisconsin, Plaintiff-Respondent, v. Stephen P. Brown, Defendant-Appellant-Petitioner
- **Court:** Wisconsin Supreme Court
- **Decided:** April 27, 1982
- **Citations:** 107 Wis. 2d 44; 318 N.W.2d 370; 34 A.L.R. 4th 1155; 1982 Wisc. LEXIS 2545
- **Precedential status:** Published
- **Opinion:** Concurrence by Callow
- **Judges:** Shirley S. Abrahamson
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9685042

## Opinion text

WILLIAM G. CALLOW, J.
(concurring). I agree with the majority that an alleged strict liability offense which was provoked by a law enforcement officer is properly subject to the defense of legal justification. I believe, however, that in making traffic violations strict liability offenses, the legislature has determined that the public interest in highway safety and the expeditious enforcement of traffic laws outweighs an individual defendant’s interests of a personal nature in any other circumstances.
The majority does not reach the issue of whether a defense of legal justification will be recognized if the causative force is someone or something other than the conduct of law enforcement personnel. {Swpra,, p 56.) I would reach this issue, and I would not extend the defense of legal justification beyond conduct provoked by law enforcement personnel. Recognizing any defense of “excusable conduct” stemming from a defendant’s perceived justifications would require, in my opinion, the prosecuting authority to prove the defendant’s culpable *58 state of mind and rebut the defense of justification for the admitted misconduct. I believe this defeats the primary premise that the public must obey traffic regulations in order to protect and promote public safety. The traveling public should be able to rely on the absolute requirement that traffic laws must be obeyed. The proposition that each driver could selectively evaluate the situation and violate the law with an expectation of impunity is unthinkable. A rule permitting judicial recognition of a defense of legal justification or excusable misconduct in any situation other than that reflected in the majority opinion would not only contravene well-established public policy, but it would have a disastrous impact on the judicial system, resulting in burgeoning the court calendar with traffic cases.
If there are any excusable circumstances, both the law enforcement officer on the road and the prosecuting authority are clothed with substantial discretion. They are a first and second echelon of authority to evaluate the facts of each case to determine whether prosecution is warranted. The broad range of penalties for most traffic offenses gives a third echelon of authority, the judge, latitude in imposing a modest penalty in an appropriate case. For these reasons, I make the declaration set forth in this concurrence.
I am authorized to state that Chief Justice Bruce F. Beilfuss joins in this concurring opinion. .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9685042. Public record. Not legal advice.