The task of the jury in the Kyle Rittenhouse case was daunting. Just a few minutes ago, he reached a verdict on all charges, including misdemeanors included: not guilty.
Rittenhouse was tried in the Kenosha County Circuit Court of Wisconsin for shooting three people during the August protests, killing two – Joseph Rosenbaum, who died first and, moments later, Anthony Huber. Rittenhouse, who was 17 at the time of the murders, faced five felony charges, including the first-degree murder of Huber. (The protests were sparked by the police shooting at Jacob blake, a black man who was shot seven times in the back on video during an attempt to arrest him, leaving him paralyzed from the waist down. The officers were not charged with any misconduct.)
Although it will take some time to unravel the legal, factual and strategic nuances that may have contributed to the outcome, part of the problem lies with the law itself. The jury apparently concluded that killing unarmed people with an AR-15 in “self-defense” is acceptable, as ubiquitous weapons are acceptable in much of the United States, including Wisconsin.
There was no doubt that Rittenhouse shot and killed Rosenbaum and Huber. Instead, the case came down to two concepts under Wisconsin law: self-defense and provocation. Did Rittenhouse act in self-defense? And did he provoke Rosenbaum and Huber in the first place? If Rittenhouse provoked the victims, then his self-defense claim only worked if he resorted to murder as a last resort.
Here’s the other complicating factor: Wisconsin is an “open-air” state when it comes to civilian firearms. The text of your disorderly conduct law criminally prohibits “violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct in circumstances where the conduct tends to cause or provoke a disturbance.” But in the absence of a demonstration of “criminal or malicious intent”, a person cannot be charged with disorderly conduct “by carrying or being armed with a firearm. . . regardless of whether the firearm is loaded or the firearm. . . it is concealed or carried away openly. “
Think about it. Being publicly “violent” or “abusive” is a potential crime in Wisconsin, unless it involves giving up a loaded gun.
Consider, instead, Wisconsin self-defense law. the judge instructed the jury that if it can find that Rittenhouse was authorized to “threaten or intentionally use force against another only if” three elements are present: (1) he “believed that there was actual or imminent unlawful interference with the person of the accused”; (2) believed “that the amount of force the defendant used or threatened to use was necessary to prevent or end the interference; and “(3)” the defendant’s beliefs were reasonable. ” In other words, Rittenhouse was legally allowed to use reasonable force to protect itself against actual or imminent harm. Given the alleged threats he faced, does that mean his killings with a semi-automatic mechanism? AR-15 rifle were reasonable? The jury concluded that it was.
According to the trial evidenceRittenhouse’s claim of self-defense seemed substantially different between Rosenbaum and Huber. Rosenbaum, who had recently been released from mental health treatment in Milwaukee after a suicide attempt, was seen on video throwing a plastic bag at Rittenhouse while chasing him. Rosenbaum’s fiancé testified that the two were living in a motel at the time and that the bag contained personal care items such as socks and toothpaste. Rittenhouse subsequently shot Rosenbaum four times: twice in the front, once in the back, and once in the side of the head, killing him.
Rittenhouse’s attorneys argued that he feared for his life. He stated that he knew Rosenbaum was unarmed and pointed the gun at him to deter him. Rittenhouse left Rosenbaum dead on the ground and fled with his AR-15 strapped to him, informing someone on his cell phone, “I just killed someone.”
That’s where Huber came in. His girlfriend testified that Huber saw Rittenhouse loading the AR-15 and ran into danger to de-escalate the situation. The video shows him popping up to reach for Rittenhouse’s firearm while holding his skateboard. It was then that Rittenhouse shot Huber. Rittenhouse testified that Huber was “holding a skateboard like a baseball bat.”
A third victim, Gaige Grosskreutz, was the only one who was armed and the only survivor. He testified that he believed Rittenhouse was an active shooter. After Huber was shot, Grosskreutz, a paramedic, saw Rittenhouse re-aim his firearm, and testified that “Re-pointing the gun in my mind meant that the defendant pulled the trigger while my hands were in the air, but the gun did not fire, so by re-pointing the gun I deduced that the defendant was not accepting my surrender.” Grosskreutz testified that he drew his pistol but, unlike Rittenhouse, did not pull the trigger. A video appears to show Grosskreutz retreating when Rittenhouse pointed his gun and fired at him from a few feet away, severing his biceps.
“I am missing 90 percent of my biceps,” he later said. “This has not been easy either emotionally or physically. I have constant pain, like excruciating pain that just won’t go away, both in my arm and in my heart. ”
Basically, the jury had to decide whether the plastic bag and skateboard were threatening enough to Rittenhouse’s safety to justify his use of deadly force, that “the amount of force the defendant used or threatened to use”, is say, an AR-15 to cause two deaths – “it was necessary to prevent or end the interference”, and that Rittenhouse’s belief was reasonable.
As Cynthia Lee, Professor at George Washington University School of Law, explained in PoliticoEven if Rittenhouse was justified in the use of force, if he caused the use of the plastic bag and skateboard by the deceased in the first place, he could have lost that defense under Wisconsin law. For Huber, the provocation, or the argument that Rittenhouse was the “initial aggressor,” was possibly stronger than for Rosenbaum. After all, Grosskreutz testified that, after Rosenbaum’s murder, he believed Rittenhouse was an active shooter. It sure sounds provocative.
Following the provocation, the jury was further instructed that: “It must also consider whether the defendant provoked the attack. A person who engages in illegal conduct of a kind that is likely to cause others to attack, and that provokes an attack, may not use or threaten force in self-defense against that attack. “
As Lee points out, the judge had already thrown out a charge of illegal possession of weapons and a curfew violation against Rittenhouse. And “illegal conduct” in Wisconsin does not include carrying open or concealed firearms under its disorderly conduct law.
On the day that Rittenhouse killed Rosenbaum and Huber, there were many civilians who looked like militiamen with guns wandering the streets of Kenosha, claiming their intention was to maintain order. Grosskreutz himself set, “I believe in the Second Amendment. I am in favor of the right of people to bear and bear arms. And that night was no different than any other day. They are keys, phone, wallet, gun. ”
But a plastic bag and a skateboard are no match for an AR-15. Wisconsin criminal law does not appear to adequately calibrate the right to carry concealed or open firearms and the right to self-defense. Two people paid the highest price for this disparity, and now it was a Rittenhouse peer jury, rather than a legislature, who made the call for the rest of us.
Kimberly wehle is a professor at the University of Baltimore School of Law and the author of “How to Read the Constitution and Why” as well as “What You Need to Know About Voting and Why” and “How to Think Like a Lawyer and Why” (Available February 2022). Follow her on Twitter: @kimwehle