Kyle Rittenhouse should not have been on the violent streets of Kenosha. He also should not be on trial for murder.
Kyle Rittenhouse should not have been on the violent streets of Kenosha. He also should not be on trial for murder.
T here is social justice, and then there’s courtroom justice. As the ongoing Kyle Rittenhouse trial illustrates, never the twain shall meet.
Rittenhouse was indicted by mob-compliant Wisconsin prosecutors for murdering two men and attempting to murder two others when he was attacked three nights into the radical left’s rioting in Kenosha on August 25, 2020. As this is written, the trial, which began last week, has taken a remarkable turn: Despite a stunningly weak case presented by the state — one that could perhaps have been thrown out by the judge as woefully insufficient when the prosecutors rested on Tuesday — Rittenhouse has elected to testify. Despite the obvious risk in this, he has fared well thus far. Prosecutors flailed on cross-examination, became argumentative, and were repeatedly chastised in the jury’s presence by the understandably exasperated trial judge, Bruce Schroeder.
We’ll have more to say after that testimony concludes. For now, let’s go back to the beginning and address why Rittenhouse’s indictment is constitutionally offensive to the right of self-defense.
The mayhem in Kenosha was triggered by the police shooting two days earlier of Jacob Blake, a black man with a violent history. At the time, Blake was wanted on a charge of sexual assault against his girlfriend, had violated a protective order, and, armed with a knife, was forcibly resisting arrest while trying to drive away in her SUV, in which their young children were passengers. Blake was paralyzed in the shooting.
Rittenhouse, then a 17-year-old high-school dropout who worked part-time as a lifeguard while hoping for a career in law-enforcement, did not belong on Kenosha’s violent streets on the night of August 25. He was voluntarily helping to guard a business, he was equipped to provide first aid to people injured in the unrest, and he wanted to be helpful to the beleaguered police. All noble motives . . . but it was a bad scene, and he was a 17-year-old kid. It was deadly dangerous, and the decision to go was foolish. There was a curfew (which he violated — along with countless others). He should have stayed home, across the border in nearby Antioch, Ill.
Exercising poor judgment is not a crime. Neither, for that matter, is being a young white police supporter whose presence at an anti-police riot is irksome to young white radicals. Being armed with a rifle at the scene could be a crime, but it probably isn’t in Rittenhouse’s case.
Naturally, the overzealous prosecutors have charged Rittenhouse with misdemeanor gun possession. Openly carrying a rifle, as he was doing, is generally legal in Wisconsin — where a friend, who was also armed and seeking to protect property, gave Rittenhouse the gun to protect himself that night. The prosecutors counter that, having not yet attained the age of 18 at the time, Rittenhouse’s possession was unlawful — a misdemeanor. But the controlling statute, a densely worded muddle that prohibits most gun possession by minors, appears to exempt long guns. The law is so vague, in any event, that a conviction based on it is apt to be constitutionally unstable.
Responsible prosecutors don’t charge offenses based on statutes they cannot explain, and the prosecutors can’t explain the pertinent exemptions. Moreover, to the limited extent that Rittenhouse’s appearance should have any bearing on the case — and criminal charges focus on the operation of the accused’s mind, not spectators’ perception of the accused — his open carrying of a long gun was neither more nor less provocative than the perfectly lawful open-carrying by those on the streets who were over 18. Indeed, it was more benign than the illegal concealed-carrying of a handgun by the state’s star witnesses, over which — surprise! — the prosecutors have not filed charges.
So why is the state so insistent on stacking a minor, selective, incomprehensibly vague misdemeanor gun-possession charge on a defendant who is facing so much potential imprisonment on murder and attempted-murder charges that he’d have to live three or four lifetimes to serve the sentence prosecutors are hoping for?
Because the prosecutors know they have no case. They need the misdemeanor to distort reality such that they’ll be able to hoodwink the jury . . . if the judge is sufficiently cowed to let them get away with it by letting the misdemeanor count stand.
Rittenhouse was not an aggressor. He was attacked by each of the men at whom he shot. Self-defense is a natural right and a complete legal defense. Rittenhouse is its textbook example of these defenses, as Legal Insurrection’s Andrew Branca has repeatedly explained in his extensive coverage of this trial. So clearly innocent is this defendant that his being forced to stand trial at all, in a justice system where the accused is presumed innocent even when the evidence of guilt is overwhelming, should frighten us.
This was obvious even before the trial. It is even more obvious now, with prosecutors having rested their weak case on Tuesday.
In a nutshell, the proof has so far established that Rittenhouse shot and killed Joseph Rosenbaum, a violent rioter who was on medication for bipolar disorder, who threatened to kill Rittenhouse if he got him alone, and who chased Rittenhouse down as he (Rittenhouse) was trying to retreat and yelling “friendly” to indicate he was not a threat. Rittenhouse fired only after Rosenbaum’s friend, Joshua Ziminsky, fired a shot in the air, causing Rittenhouse to turn quickly and find Rosenbaum charging him, screaming, “F*** you,” and lunging to grab his gun and try to take it away.
Rittenhouse then tried to run to a police barricade to surrender himself, but he was pursued by an incensed mob. He lost his footing and fell (there were things being thrown at him and he may have been pushed). When he was on the ground, and under siege from multiple flanks, an unidentified leaping man wearing heavy work-boots attempted to kick him in the face but missed as Rittenhouse fired and missed.
Then Thomas Huber approached, beat Rittenhouse over the head with a skateboard, and tried to get the gun away, in response to which Rittenhouse fired, killing him. Finally, Gaige Grosskreutz (the state’s star witness who imploded on the stand), chased Rittenhouse as he fell and was closing in as the Huber altercation occurred. Grosskreutz was carrying a loaded handgun which he had been concealing without a valid license (and about which he later gave misleading statements). He raised his hands as if in surrender, so Rittenhouse did not fire; but then he abruptly charged Rittenhouse. Only when Grosskreutz pointed the handgun directly at Rittenhouse from three feet away did Rittenhouse fire, striking Grosskreutz’s arm and severely wounding him.
It is worth underscoring: That is the state’s evidence. The defense lawyers have done a fine job, but mostly they’ve just had to let the prosecution’s own witnesses and videos speak for themselves.
So what is the prosecution’s theory? It appears to be two-fold.
First, the state claims that it was Rittenhouse who provoked these shootings. How is that possible on these facts? Well, under Wisconsin law, if a person engages in unlawful conduct that tends to provoke others to a violent attack, the person can lose his right of self-defense. That’s why the prosecutors are desperate to keep the misdemeanor gun-possession count in the case. They want to argue that Rittenhouse’s allegedly illegal possession of the rifle was provocative, and therefore caused all the carnage that followed.
It is a ridiculous position. The rifle possession was probably legal. Even if it wasn’t, it clearly was not provocative. The legality of open-carrying of a long gun is the rule, not the exception, in Wisconsin. Plenty of people were openly carrying weapons. This behavior, done by law-abiding people, has the effect of discouraging violent crime. It thus cannot be deemed provocative.
To look at Rittenhouse on August 25, 2020, would not be to know whether he was somewhat younger or older than 18. In either event, his mere possession of a long gun would not have been provocative, such that it eviscerated his right to defend himself, even if, arguendo, it were illegal on a hyper-technical, highly debatable construction of state gun law.
Second, and relatedly, the state wants to claim that even if Rittenhouse’s shooting of Rosenbaum was justifiable self-defense, it provoked Rittenhouse’s other pursuers into either (a) a forcible response based on the outrage provoked, or (b) a forcible response based on the possibility that Rittenhouse was an “active shooter” who was posing a danger to the community that Huber “heroically” tried to end.
This, too, is absurd. It cannot be that self-defense is permitted only against the first attacker — i.e., that a lawful self-defense measure is transmogrified into a provocative act that erases the right of self-defense against other assailants who are angered by it. Furthermore, the evidence is abundant that Rittenhouse was not an “active shooter.” He fired only at people who attacked him, despite having limitless opportunity to fire at others who did not threaten to him. And to reiterate the salient point, in a criminal case the germane issue is mindset of the accused, not of those who observe the accused. If spectators are unreasonably provoked, or irrationally convince themselves that a person is a criminal causing indiscriminate or otherwise unlawful harm, that has no bearing on whether the circumstances, as the accused experienced and understood them, justified his self-defensive actions.
We have constitutional firearms rights primarily to protect ourselves. The Wisconsin prosecutors of Kyle Rittenhouse are trying to turn self-defense into a crime. They obviously do not approve of firearms for protective purposes. And of course, Rittenhouse’s self-defense intruded on the social-justice cause of brutal rioting that we’re supposed to believe somehow combats the supposed scourges of white supremacism and police brutality.
Kyle Rittenhouse should not have been on the violent streets of Kenosha. He also should not be on trial for murder.