Lessons from the Case of Kyle Rittenhouse

Self-defense is more than just survival in the moment. Kyle Rittenhouse’s case can teach us a few important lessons. Many Americans, and most people in self-defense, will recognize Rittenhouse’s name. Rittenhouse was the subject of many discussions, blog posts, and articles around the country…and around the globe. Rittenhouse killed two men, and injured a third, during a Kenosha protest against Jacob Blake’s police shooting. Many media outlets have labeled Rittenhouse a vigilante, accusing him of setting out for the ultimate goal of killing everyone in his path. Photo: Adam Rogan/The Journal Times via AP. This piece will attempt to clarify the facts and bring clarity to a confusing situation. Opinions are varied… and this is my view. The final verdict is always decided by a group called the trier-of-fact, also known as the jury. The officers were all white. Police shot him seven times because a neighbor captured much of the incident on camera. Blake survived, but is now permanently paralyzed. After being called by local militia, Kyle Rittenhouse, a 17-year old, traveled from Illinois, to Kenosha to protect area businesses and homes from looting and destruction. Rittenhouse shot and killed Anthony Huber and Joseph Rosenbaum, and injured Gaige Grosskreutz. Many naysayers have been quick to label Rittenhouse a murderer, without fully understanding the law and without the ability to apply it properly.Jurisdictional DetailsIn Wisconsin, as in most jurisdictions, you may use deadly force against another when you reasonably believe that other person intends to do great bodily harm, or cause the death of you or another person. You cannot incite or provoke an attack to claim self-defense. Your claim of self defense will be denied if you are the aggressor or the one who started the fight. In many jurisdictions, if the initial aggressor is you, you must attempt to avoid using deadly force. This means that you must try to run, escape or avoid the attack or prevent it. You also need to announce to the other side that you are done fighting and that you don’t want any more fights. According to authorities, it shows Rosenbaum throwing an object at Rittenhouse (later determined to have been a plastic bag). Rosenbaum attempted to take Rittenhouse’s rifle from him. Rittenhouse shot his AR-15-style rifle at Rosenbaum and killed him. This is a tricky question that depends on many factors. It is assumed that the subject disarming an officer is only to use the weapon against them. Is it possible to assume the same thing when a civilian attempts disarming another civilian? It may be. Perception matters. However, it could come down to how you perceive the situation in the present and whether you are able to articulate the reasonableness or inexplicability of a deadly force threat. Rittenhouse and others in self-defense argue that Rosenbaum threw a plastic bag at Rittenhouse to distract him with the intention of disarming him. Rittenhouse appears as he runs toward police after the first shooting. He then falls in the street due to an angry mob following him. The video clearly shows Rittenhouse being chased down the street by a mob of protesters. I counted at least 8-10. Rittenhouse was thrown to the ground by a protester. Rittenhouse fell to the ground and was left in a disadvantageous position. It appears that multiple attackers were quickly gaining on Rittenhouse. Rittenhouse can’t believe that multiple attackers are about to attack him. One of the men kicked Rittenhouse in the head. What would the other people do? A head blow, when you are in a disadvantageous position and with many people jumping on you, can cause someone to believe that this attack could lead to death or great bodily injury. Huber appears to be stumbling over Rittenhouse, as he hits Rittenhouse with a skateboard. Huber is dead as he grabs Rittenhouse’s gun barrel. A skateboard is a large solid-wood object with four hardened wheels and is not intended to be used as an offensive weapon. It is illegal to use any object as a weapon that could cause death or great bodily injury. Rittenhouse was not able to believe that he would be attacked again or that the mob would overwhelm him. Each rioter would take turns raining down on Rittenhouse. Rittenhouse is within striking distance of at least four attackers with his rifle. Grosskreutz, who appears to be carrying a handgun, approaches Rittenhouse within 2 feet. Rittenhouse shoots Grosskreutz in the arm, inflicting serious injuries. The totality of the circumstances would make Rittenhouse’s actions compatible with the elements of self defense? Rittenhouse shot Grosskreutz, inflicting severe injuries to his arm. It states that a person is entitled to use force or threaten another person to prevent or terminate what they reasonably (Reasonableness), believe to be an unlawful interference with their person by such person (Avoidance or no statutory obligation to retreat). See State v. Wenger. Actors may only use or threaten such force or harm as the actor reasonably (Reasonableness), believes necessary (Proportionality), to stop or terminate interference. An actor may not use force that is likely or intended to cause death or great bodily injury unless the actor reasonably (Reasonableness), believes such force is necessary (Proportionality) to prevent or terminate the interference. It’s happening now. It’s not happening in 5 minutes. The threat must be immediate and it requires your immediate action. * Innocence refers to who started the fight. It is not possible to start a fight and escalate it to the point where the other side draws a weapon. Then innocently use deadly force, claiming they were the first to draw. It doesn’t work this way. In many jurisdictions, you have to declare to the other party that you are regaining your innocence. Additional action, such as retreating or moving to safety, may also be necessary. If your adversary pursues and you are unable to regain your innocence, you may be considered the first aggressor. You may use the law-enforced force. * Proportionality refers to the ability to use only the amount of force necessary for you to stop force being used against your. You can usually grab your purse back if someone grabs it. If force is used against you that could cause death or great bodily injury, you can use deadly force to stop it. This should not be taken out of context. Unwanted touching could be considered unlawful interference. This would not be considered a threat to the life of another person. The statute’s next sentence is as follows: “The actor may use only such force, threat thereof, or intent to prevent or terminate interference” * Avoidance is the duty of retreat. In some jurisdictions, it is mandatory to make every effort to retreat to safety before deadly force can be used. My home state of Michigan is more hybrid in this duty-to-retreat category. A person doesn’t have to retreat as long they comply with certain elements of the law. Michigan has a jury instruction which allows them to use the fact that an actor didn’t retreat when they could or should have in their verdict decision if they find the actor guilty at some level. The duty to retreat is usually based on two factors: the actor is not involved in the commission or commission of a crime and the actor is in a legal place. Each element must be present. Reasonableness is the umbrella that covers all four. Remember that in a true self-defense case, you (your defense team), must prove each element; the government must disprove one to convict. Let me clarify. The prosecutor has the burden of proof beyond a reasonable doubt. They must prove the case according to that standard. The defense must produce evidence to support self-defense in an affirmative defense of self defense. This is no longer true as Ohio, the last remaining state, has changed its statute. This was repealed on March 19, 2019, and is now the standard for all 50 states. It is possible that you will still see the preponderance evidence used in a hearing on self-defense immunity. If immunity is denied, the case can proceed to trial. If immunity is granted, the case can be brought to trial. A reasonable doubt is a high standard. While most legal scholars hesitate to put a threshold on the standard, many agree that it is somewhere north of 90%. However, the defendant in any criminal case may remain silent and not present any evidence or testimony. They can rely solely on the inability of the prosecution to prove their charges (or at least they hope so). The defense is usually the one responsible for producing the evidence. Although the defense doesn’t have to provide anything, it does have to. The defense has the obligation to produce a minimum amount of evidence to the trier of facts to contest the prosecution’s charges. We received many emails and inquiries about the actual trial of State of Wisconsin in State of Wisconsin v. Kyle H. Rittenhouse. Many people wanted to know why defense teams didn’t object more often. It’s called trial tactic. I’ve seen many trials in which I screamed internally, “Objection!” It can portray the defense counsel as abusive, interruptive, and generally in a negative light towards the jury if they object to everything they can. This is not what the juries like. Juries want to hear the facts and make their decisions without interruptions. The defense must also object at certain times in order to have their objection recorded for appeal. This preserves the issue. Trial attorneys should object when necessary, but they must object at certain times to get their objection on the record in case they need to appeal. As we saw in Rittenhouse, many trial attorneys won’t object if the opposing counsel is making their case for themselves. What All This Means for You I was drawn to the historic aspect of the protest and chose to go. I have been there as an observer and not as an active participant. Tucker Carlson interviewed Rittenhouse. Rittenhouse said that he was allowed to inspect one of the auto shops to prevent looting. I have also worked in the armed sector. I have never been called upon to join a team that arrived without proper pre-planning. This was done at least a day before the security event. It is not a good idea to show up at a racially charged protest with national significance without proper planning, surveillance and experience. Avoid people who have a mob mentality. Don’t bring your skateboard to a gunfight. This is not something I say sarcastically, but with all sincerity. Make a conscious decision that you will be involved in a situation involving deadly force, or in any other level of force situation. Be sure you have the right tools to defend yourself. This is one aspect of the mob mentality, where people believe they are invincible. They believe they can take control of situations and move on without being hurt. Be a good witness. Call 911. Run away. I don’t move in the way of a gun-wielding person to hit him with my club, and I don’t want to be shot. That’s stupidity. Sometimes we may only have what we have in our immediate environment to defend us. We need to think about how we can escape harm’s way in those situations. Third, there are many comments on gun forums and one nationally recognized trainer stating that it is a waste of time or even silly. Let’s focus on the lessons we can learn from Kenosha’s trial. What we can learn from the trial is important. You will be scrutinized by your family, media, neighbors, outsiders and organized anti-gun groups. Although you may not be subject to the same scrutiny at the national and international Rittenhouse level, you will still suffer emotional, physical, and mental damage. This is a well-known fact in post-traumatic events. Many books have been written about the body’s reactions to it. Only after a person has survived an attack and is able to defend themselves against the attacker, can the journey through emotional and physical stress begin. Rittenhouse was very concise in his responses to Tucker Carlson’s interview. But, this is only the beginning of his journey. He will never forget this experience and the effects of stressors will be with him for the rest of his life. In any criminal case, the prosecution’s role is not to obtain a conviction but to seek justice. A conviction against a serial sex offenders may be justice. It is not foolish to try to bring a case against a defendant because of political motives or pressure. Expect the government to go after you with the vitriol with which they went after Rittenhouse.Lifelong, Hard-LearnedFolks, some will miss the point here. Every day, I meet people who believe self-defense is the act of survival in the moment. Although it is an important part of the equation to survive, it is only one. Pre-survival includes training, role-playing and visualization, as well as skills in medical skills and their role. If you are injured and need to use the skills, pre-survival training may be helpful. You may need post-survival skills months or even years after the incident. Emotional, psychological, and physical issues such as PTSD can continue for many years. These issues can affect not only the survivor but also their spouse, children and friends. Preparation is key for the pre- and post-self defense incident. The effects of the 3-second self defence incident will last a lifetime. Art Joslin, J.D., D.M.A. Director of Legal Services for Armed Citizen’s Legal Defense Network. His experience includes law enforcement, court officer and use-of-force expert testimony. He is also a firearm instructor and Level 4 Commando Krav Maga instructor. He is a Thomas M. Cooley Law School graduate in Lansing, Michigan. Target grids and bullseye sizes can be downloaded in MOA. This is a great option for long-range shooting. Enter your email address below.