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Law & the Courts

Rittenhouse Misdemeanor Possession of Gun Charge out of the Case

Judge Bruce Schroeder gives jury instructions during Kyle Rittenhouse’s trial at the Kenosha County Courthouse in Kenosha, Wis., November 15, 2021. (Sean Krajacic/Pool via Reuters)

As our Jack Crowe reports, Judge Bruce Schroeder has removed the misdemeanor possession of a firearm charge from the jury’s consideration. As I’ve been arguing (see, e.g., here and here), the statute is muddled, and a conviction would be susceptible to a constitutional vagueness challenge — based on the principle that, to be actionable, a criminal law must put people of ordinary intelligence on notice of what the law prohibits.

There is also, it turns out, yet another problem, which came to a head, finally, during legal arguments this morning, before the judge started instructing the jury on the law. It turns out that the prosecution failed to establish that the AR-15-style weapon Rittenhouse possessed was a short-barrel rifle as defined under Wisconsin law — the gun itself was admitted into evidence but there was no testimony on this point. Professor Jonathan Turley has a great post on his website, explaining that, in essence, Wisconsin bars minors from possessing short-barrel rifles.

At one point in this morning’s to-and-fro, Judge Schroeder asked, “Why don’t we just measure the gun?” Obviously, it didn’t measure up because, once the jury entered the courtroom, the judge instructed them that the misdemeanor count is no longer part of their consideration of the case.

It is a blow to the prosecution. To repeat, the prosecution is trying to convince the jury that, by lawless conduct, Rittenhouse forfeited his right of self-defense. I have never thought the misdemeanor charge helped that argument much: Openly carrying a long gun is presumptively legal under state law; ergo, it cannot be that Rittenhouse’s mere open carrying of the rifle could be provocative, even if it were technically true (which I doubt) that his doing so was illegal because he was under 18 at the time.

With the misdemeanor no longer an issue in the trial, the prosecution is reduced to relying on dubious video evidence which it claims — based on the prosecutors’ wishful viewing, supported by no testimony — depicts Rittenhouse pointing the gun at Joshua Ziminsky before he shot the first assailant, Joseph Rosenbaum. Even if it were true that Rittenhouse pointed the gun at Ziminsky (which I don’t believe the video proves at all), I don’t see how that could be deemed such “provocation” that Rittenhouse would be deemed to forfeit his right of self-defense when attacked by Rosenbaum — to say nothing of the subsequent attacks by the assailants who chased Rittenhouse down.

But the prosecutors, nevertheless, will attempt to persuade the jury that Rittenhouse is the culprit; that by supposedly pointing the gun at Ziminsky, he set the dominoes in motion; and that he therefore had no right to defend himself when attacked with lethal force. That’s their story, and they are stubbornly sticking to it.


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