Some Thoughts after the Kyle Rittenhouse Verdict
Kyle Rittenhouse was not convicted for killing two unarmed individuals and wounding an armed individual during the Kenosha protests. The twelve-person jury was not convinced of his guilt beyond a reasonable doubt. The case hinged on the issue of self-defense.
In other words, if someone is actively trying to kill you, you have a right to self defense including killing them to save your own life or the lives of others. However, if someone is simply yelling threats of death and bodily harm at you, you do not have a right to kill them in self-defense. Under Wisconsin law, the prosecution must prove beyond a reasonable doubt that it was not self-defense; the defense has no evidentiary burden to show self-defense.
Wisconsin is an open carry state, meaning that its citizens can go about in public carrying their guns and rifles. Rittenhouse was too young to buy a firearm in Wisconsin but according to the judge in this case not too young to walk around the streets with one.
Rittenhouse had had some but limited training in firearms and in law enforcement during high school. From his nearby home in Illinois, he responded to the call of the Kenosha Guard militia to come and defend the city against local protesters angered by the killing of Jacob Blake by the Kenosha police. Local protesters were clashing with the Kenosha police during the protests. The white supremacist group, Boogaloo Bois, which favors and wants a war between the races was also on the streets in Kenosha.
This inexperienced young man toting an AR 15 rifle went to join other armed men opposing a protest rally about the death of Jacob Blake. He said he had two goals: protect local property from vandalism or arson and provide medical aid to those who were injured in the fracas between protesters and the police. He certainly did not need a semi-automatic rifle to provide medical aid. It is the role of trained and skilled local law enforcement, not untrained, undisciplined, ad hoc militias, to safeguard local property from crime.
Too much press coverage has focused on Rittenhouse, too little on his victims. Rittenhouse shot three people that night. The first, Joseph Rosenbaum had suffered from mental illness and homelessness; he had been living in a motel with his girlfriend; he was a troubled individual and had just been released from the mental hospital that day after a suicide attempt. After encountering Rittenhouse armed with a rifle, he screamed at Rittenhouse and threatened to kill him; he threw a plastic bag containing his personal effects at Rittenhouse, chased him, and tried to take his gun away. Rittenhouse shot him four times.
The second, Anthony Huber was a Kenosha resident, an avid skateboarder; he knew Jacob Blake. After the killing of Rosenbaum, Huber ran after Rittenhouse to stop him from getting away. He hit Rittenhouse with his skateboard and tried to take away his rifle; Rittenhouse shot and killed him.
The third, Gaige Grosskreutz was a Kenosha resident with paramedic training who was at the protests with his medical kit to provide medical aid. He too ran after Rittenhouse after the Rosenbaum killing, and he tried to stop Rittenhouse from escaping; he pointed his pistol at Rittenhouse who then shot him in the biceps.
Rittenhouse was young, armed, and scared that night he shot three innocent people in Kenosha. He was running from danger from an angry crowd that he himself had provoked by killing Rosenbaum. The jury found him not guilty, meaning that the prosecution had not convinced them beyond a reasonable doubt that they should convict him of murder and attempted murder and send him to prison for his conduct that night. I felt the key testimony influencing the jury was Rittenhouse’s own; he came across as a somewhat clueless, scared teen, not as a hardened white supremacist or right-wing militia member. The jury’s decision is final, not appealable.
The right-wing media and blogosphere have been celebrating his acquittal as a victory for self-defense and for the right to bear arms. The jury’s decision does not in any way, shape or form excuse or justify Rittenhouse’s atrocious judgment and really bad behavior in Kenosha. After he was arrested, and in the lead up to the trial, he became enmeshed with the Proud Boys and numerous sketchy right-wing lawyers, such as Lin Wood and John Pierce who were using him to raise funds for their mutual benefits. He continued this bad judgement after his not guilty verdict by taking a victory lap with Tucker Carlson on Fox News and with the denizen of Mar a Lago. He will live with the inescapable memory of killing two innocents and severely wounding a third for the rest of his life, but he will not be in prison or dead. He says he has destroyed his AR 15, and he expresses remorse for having gone armed to Kenosha.
It’s a flammable and toxic stew when police conduct is the target of the protest, yet police must ensure individual rights to peacefully protest against the very conduct of the police themselves. In my opinion, Wisconsin should bar the carrying of arms by both protesters and counter-protesters at protests such as Kenosha. Tensions run high, and the threat of armed violence between opposing groups is very high. Individuals exercising their First Amendment’s rights of speech and protest should not be endangered by other individuals claiming to exercise their more limited Second Amendment’s right to bear arms in militias. At the same time, there must be far more effective law enforcement and control over those individuals who loot and destroy local homes and businesses during protest rallies.
To my surprise, most jurisdictions (California included) are like Wisconsin; they do not impose any evidentiary burden at all on the defendants raising a self-defense claim. I have been arguing with myself as to whether the defense should need to show self-defense by at least a preponderance of the evidence (50% + 1), before the burden then shifts to the prosecution to rebut this affirmative defense beyond a reasonable doubt. Food for further thought.
Self-defense was at play in both the Arbery and Rittenhouse cases. In the Arbery case, the three armed white men in their pick-up trucks were the aggressors throughout, and it all occurred in broad daylight. In the Arbery case, the defense attorneys tried to play upon white fears of young black men and to select a jury panel most empathetic to their white clients, one of whom had a law enforcement background. The strategy may have backfired, as Ahmaud Arbery in his jogging clothes posed no immediate threat to the three would be vigilantes. They might well have done far better negotiating a plea deal with the prosecutors.
In the Rittenhouse case, the armed teen was withdrawing throughout the encounters; it occurred in the middle of the night amidst quite a lot of chaos and sporadic gunfire. On the other hand, he shot and killed two unarmed men at least one of whom was seeking to stop his flight after he had shot Rosenbaum, and likewise he shot and badly wounded another man; he shot at and missed yet a fourth man who was trying to prevent his escape. Subjectively he may have been very fearful for his life, but objectively it did not seem that he was in mortal danger throughout the encounters.
He chose to come with an assault rifle to the protests, as such he chose to represent a conscious threat to other individuals peacefully exercising their First Amendment rights of speech and protest. He chose to shoot and to kill demonstrators, in each instance, knowing and perceiving and later acknowledging on the witness stand that two of the individuals that he killed were unarmed. At a minimum, I think there was evidence sufficient that he could/should have been convicted by the jury of reckless endangerment or manslaughter.
The right thing for Rittenhouse to have done in the first place was to call 911 (not call his best friend) and tell the cops what happened, to have administered first aid to Rosenbaum with his medic’s kit, to have put down his weapon, to put up his hands in surrender mode, and to wait for the police to arrive. Instead, wrongfully but understandably, his adrenaline kicked in; he fled and shot at all those who got in his way of escape. He did eventually go to the police to turn himself in, but when they failed to appreciate his role in what had happened, he left the scene and went back home to his mom. She finally convinced him to turn himself in to the local police.
It seemed as if the events of Kenosha were a harbinger of events to come in the nation’s Capitol. At both events the right-wing press and the internet, Facebook specifically, were used to summon a lot of gullible people with false and misleading narratives. A mix of ardent white supremacists and hard right extremists responded along with lots of regular people who were Trump supporters. In both DC and Kenosha, the local police were overwhelmed by the events and unable to maintain the peace. In both cases the National Guard was called in, but they arrived quite late in the game.
In DC, there was no left-wing presence at all. The Army and National Guard were called too late to protect the Capitol and Congress from the attack by right-wing insurrectionists. In Kenosha there were lots of guns and ammo at the protests, and the avoidable deaths of innocents occured. In DC, there are strict gun control laws, and open carry is not permitted. There were no guns displayed by the protesters although some were hidden in nearby cars. Demonstrators used makeshift and improvised weapons instead to attack the police. The far-right wing was in attack mode in DC; this was not a case for arguing a claim of self-defense. Some of the would be insurrectionists died, and some police officers did as well in the aftermath, and many more were very badly injured. The DC insurrection was a planned and executed event by some of the participants, likely with support of like-minded individuals in Congress and the Administration. This fire was lit by the President himself in coordination with a number of his allies inside and outside of government. In Kenosha, it was spontaneous combustion fueled by the Jacob Blake shooting, the protests and the looting of local businesses.
As the events in Kenosha and at other BLM protest sites in the wake of George Floyd’s murder unfolded, I believe Trump and some of his allies like Bannon and Miller and some in the right-wing media were preparing and building their case for the military takeover of government, and a delay in the Presidential elections, which they feared Trump would lose. In DC after his loss, they actually tried to intimidate Congress and Vice President Pence by force to overturn the election. Elsewhere, they tried to steal the election through baseless lawsuits and by intimidation of and subterfuge with state and local election officials and state legislators
DC’s Mayor was careful on January 6 not to pose an armed and bloody response to the right-wing insurrection. She avoided bloodshed in the streets of the nation’s Capitol. She avoided offering provocation and opportunity for Trump to try to order and engineer a military takeover. Antifa and others defending the Constitution did not take the bait offered by Trump and the assault of right-wing extremists on the nation’s Capitol; we don’t know how or why. We have all dodged the bullet of heavily armed conflict and killings in the nation’s Capitol for now; this is not over.
References:
https://www.newyorker.com/magazine/2021/07/05/kyle-rittenhouse-american-vigilante
Homans, Made in America, New York Times Magazine (10/31/21)
https://en.wikipedia.org/wiki/Kenosha_unrest_shooting
https://www.cnn.com/us/live-news/kyle-rittenhouse-trial-verdict-watch-11-19-21/index.html
https://www.nytimes.com/2020/08/27/us/kyle-rittenhouse-kenosha-shooting-video.html