After a two-week trial and intense national and international media attention, a Wisconsin jury acquitted Kyle Rittenhouse after he killed two people and shot a third during a racial justice protest in Kenosha. Rittenhouse admitted using “deadly force” that night. At the time of the protest, seventeen-year-old Rittenhouse traveled from Illinois to Kenosha after right-wing social media accounts called on people to protect the city from riots. Rittenhouse has now been found not guilty on all six counts arising from his conduct that day, establishing that he acted in self-defense.
This article explores the complicated nature of the Law of Self-Defense in Wisconsin and the criminal trial procedure; it will demonstrate how it applies to the Rittenhouse case and highlight that under the letter of the law, the Rittenhouse acquittal was not an unreasonable decision for the Jury. While this article functions to explain how the law is, it does not proclaim that this is how the law should be - while the decision was the legally and potentially correct one, it was not necessarily the just one. The current laws of self-defense are backwards and broken, and encourage, permit and endorse vigilante justice. Ultimately, Rittenhouse’s proponents must be comfortable with the fact that if he had died that day, whoever killed him would have also been found guilty due to self-defense.
Self-Defense Law
The law of self-defense as a legal defense in trial is muddy water of burdens of proof, with exceptions to every rule - many of which apply to the Rittenhouse case. Wisconsin has its own form of self-defense law and, like in many other states, self-defense is understood as an affirmative defense. This means that the defense must provide some evidence which can inform the jury that self-defense may be at play. This is known as the "Burden of Production" and is a relatively low burden of proof for the defense to overcome. This then places the burden back onto the prosecution who must prove their case and that self-defense does not apply "beyond a reasonable doubt" - the highest standard of proof. When looking at the Rittenhouse case, it is important to note that overcoming a self-defense assertion is highly difficult. Self-defense law, at its most basic level, says a person who is not the aggressor is justified in using deadly force against an adversary when he or she reasonably believes that they're in imminent danger of death or serious bodily injury. A reasonable belief does not have to be a true one. However, one can be mistaken if at the time that the act was committed, the defendant had reason to believe that they were under extreme threat. There are of course exceptions to this general rule, but they will be returned to later.
Wisconsin falls in the middle of the "duty to retreat" and "stand your ground" debate between American states. The former requires a defendant to exercise all potential opportunities to flee before resorting to deadly violence, the latter removes all considerations. Wisconsin instead falls somewhere in between, where under particular circumstances (such as where you provoke aggression) you have a duty to retreat and if you do not you may stand your ground.
The final nuance of self-defense is provocation, where a person who provokes an attack cannot claim self-defense. Nevertheless, nothing is ever that simple. Wisconsin law writes:
"A person who engages in unlawful conduct of a type likely to provoke others to attack him or her, and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is an imminent danger of death or great bodily harm".
This law of provocation is best understood as an exception to the exception of self-defense, which is already an exception to the ability to use deadly force against someone. This law allows for someone to perform an unlawful action that can provoke others to attack them. If the person they provoke acts in self-defense and attempts to use deadly force to protect themselves, the original provocateur may then act in self-defense if they reasonably believe they have no other option (despite provoking the actions and using deadly force to protect themselves). This presents a problematic scenario where two people could be trying to kill one another but both have reasonable beliefs about the scenario and are acting in self-defense. Whoever survives will be innocent.
The Rittenhouse Case
To understand the Rittenhouse case, it must be analysed holistically, including its uncontested facts. Rittenhouse testified that he went to Kenosha to protect a car dealership. During a chaotic series of events, he was separated from the rest of his group and jogged towards one of the Car Source parking lots. Rosenbaum chased Rittenhouse and trew a plastic bag behind Rittenhouse. A shot was fired from someone else about a hundred feet away. Rittenhouse turned around, stopped and shot the unarmed Rosenbaum four times. Rittenhouse then ran away from the scene, followed by a crowd chasing him. Rittenhouse fell to the ground, sat upright and pointed his gun at one person who backed away. He shot at a man who attemped to kick him, who then backed away after the shot. Huber then hit Kyle Rittenhouse with a skateboard, Rittenhouse fire a shot at Huber who ran away and dropped to the ground. Grosskreutz then put his hands up while armed with a pistol. As he moves near Rittenhouse, Rittenhouse then fired at Grosskreutz hitting him once in the bicep.
This is, of course, a hopefully clear oversimplification of the full range of facts. Yet the timeline alone demonstrates the complexity. Was it reasonable for Rittenhouse to believe that he acted in self-defense? Some jury members saw murder while some interpreted it as self-defense.
Of course, it is not possible to make blanket assertions about self-defense - every incident must be individually examined. However, one may argue that in the latter two incidents, Rittenhouse was fending off what was arguably an attack with a skateboard and, in another, the man admitted he drew a gun on Rittenhouse. One might also reasonably conclude that one or more of these incidents were not self-defense and were therefore murder. After all, Rosenbaum was an unarmed man who threw a bag of clothes at Rittenhouse, after which Rittenhouse pointed his gun at him. Rosenbaum then moves towards Rittenhouse or apparently towards the gun and Rittenhouse shoots him four times. This complicated scenario makes clear that reasonable minds may differ about the reasonableness of Rittenhouse’s belief of danger.
Therefore, it is clear that it would not be unreasonable for the jury to find there is at least some doubt as to whether or not that Rittenhouse may have had a reasonable belief, and that on a different day with a different jury the decision would have been different. Furthermore, looking at this case it is highly probable that a jury would have found all of the people Rittenhouse killed to have also acted in self-defense if they had killed him as they could have had a reasonable reason to believe he was an active shooter if the circumstanced had transpired differently.
Provocation
Some argue that the previous discussion about the facts of the case are meaningless as Rittenhouse should have no right to invoke the self-defense exception because he provoked the attacks by bringing his weapon and placing himself in the situation. However, legally there are a number of issues with this claim. Firstly, the issue of unlawful conduct. As discussed earlier, in order to not be entitled to the self-defense exception, someone must carry out unlawful actions which are likely to provoke attack from others. Only Rittenhouse’s breaking of curfew and unlawful possession of a rifle by a minor could be classified as unlawful conduct. Even if either of these lesser charges had stuck, it is clear that in Wisconsin, neither would rise to the level of provocation.
In the first instance, every single person present at the time of the shootings was breaking curfew. This action itself, despite being potentially unlawful, was not and is not provocative. In the second instance, Wisconsin is an open-carry state and so the carrying of a rifle is legal. Unless someone knew Rittenhouse was a minor, there would be no reason to be provoked by his possession of a gun. For both of these reasons, it is clear that there was no unlawful conduct by Rittenhouse which could give rise to provocation.
Nevertheless, Rittenhouse pointing his gun at Rosenbaum could be argued to be a provoking action. Rittenhouse himself testified that Rosenbaum did lunge at him and that he pointed the gun in fear that Rosenbaum would take the gun and use it against him. We will never know Rosenbaum’s side of the story. This section of the case is interesting specifically within Wisconsin due to their case law on this circumstance; the 1883 Wisconsin Supreme Court Case of State v. Clifford states that "if one points a loaded gun at another, and the other grapples with him to prevent the shooting and is shot, it is murder."
This is the only section of the Rittenhouse case where the jury, despite Rittenhouse’s testimony, might find that he did provoke the attack. Of course, we do not know this for sure. If the jury found that Rittenhouse did not provoke any attacks, then he would not be exempt from using self-defense. Therefore, their ultimate decision to acquit Rittenhouse could logically and legally be reasonable.
However, if they found that Rittenhouse provoked any of the attacks before they could exclude self-defense, they would have to examine if Rittenhouse was in imminent danger. If he was, he may be able to regain the ability to use self-defense. Imminent danger is the exception to the rule of provocation, which is the exception to the rule of self-defense, which is the exception to the rule of homicide. Given that there would need to be an assumption for the jury to think Rittenhouse was in imminent danger to consider self-defense or provocation, it is safe to assume that even if the Jury found that Rittenhouse had provoked the attacks, he could use self-defense.
Before the duty could find that Rittenhouse would not be guilty, even if he had provoked the attacks, they would need to examine if Rittenhouse had exercised his duty to retreat. In order for Rittenhouse to respond in self-defense following a potential provocation, even if he was under imminent danger, he would have needed to execute a duty to retreat. If the jury did reach this question, and we will never know if they did, they could have found that Rittenhouse had no opportunity to escape. Once again the Rosenbaum situation becomes the most murky but interesting aspect of the case. Once Rittenhouse is on the ground with people hitting him, it is easy to see where the jury may have found where he did not have an option to retreat, however prior to that is a question we will never know the answer to.
Social Questions
This article has demonstrated that by the letter of the law it would not have been unreasonable for the jury to find that Rittenhouse had acted in self-defense if he had a reasonable, if misguided, belief about the danger he was in. However, as is often the case, the letter of the law is not always just and in the Rittenhouse case this unfortunate trend persists.
The confusing, exception-laden and potentially hypocritical Wisconsin self-defense law, which allows for two people trying to kill each other and both be acting in self-defense, is leading to a system of vigilante justice. As the last man standing will face no consequences under this system, there is a systematic incentive to take matters into one’s own hands. The justice system should not tolerate or endorse vigilante justice but the Rittenhouse case presents a dangerous precedent going forward.
Now, the question of Rittenhouse’s acquittal becomes less of a legal question and more of a social one. Bringing guns to a protest is a bad idea. Despite the plainness of this statement, it is becoming a very controversial statement. Moreover, this applies to anyone, not just Rittenhouse. It may not be illegal but the actions only further escalate a perpetual cycle of violence between the authorities, the authoritarians and in their eyes their enemies.
Many have also pointed out the issues of race - if a person of coloue shot 3 people, they would very likely not be alive to defend themselves in court, never mind be acquitted. In self-defense cases with black defendants, they are ten times more likely to be found guilty.
This case should function as a blood-stained mirror to the Wisconsin legal system and any system which permits vigilante justice by a section of the population. However, it may also instead function as a catalysing trophy for the proponents of what Rittenhouse believes in. Rittenhouse’s appearances on national right-wing news since his acquittal will only embolden those who think like him. Several fear that this will see further violence followed by vindication for those who committed it.