You’d think it would be easy to determine whether Kyle Rittenhouse can successfully plead self-defense after killing two people and injuring a third during protests in Kenosha, Wisconsin. Turns out that it’s actually pretty complex. Here’s why: When gun rights get involved, the law tends to depart radically from common sense.
The legal framework on its own is relatively straightforward. In Wisconsin, as in many other states, you can use deadly force in self-defense if you reasonably believe it’s necessary to prevent imminent death or great bodily harm to yourself or others. You can’t avail yourself of the self-defense argument if you’ve provoked other people into attacking you.
Some states have a rule that says before you use lethal force in your own defense, you have a “duty to retreat” — in other words, you have to try to run away before killing your assailant. Wisconsin does not impose this duty. The jury is, however, allowed to consider whether it was possible for you to run away as part of its determination of whether you acted reasonably.
The trouble begins when you start applying the legal rules to someone in Rittenhouse’s situation, namely, someone who has carried an AR-15-style weapon to what is intended to be a peaceful protest. In a commonsense universe, this act itself would appear to be a provocation.
Yet under Wisconsin law, adults are entitled to carry around their licensed firearms in public places. An open-carry law means that prosecutors would have a tough time convincing a jury that simply carrying an assault rifle counts as a provocation.
True, Rittenhouse was only 17, and the law bars minors from gun possession. But there is no reliable way that bystanders could have known that Rittenhouse was underage just by looking at him. Provocation is in the eye of the beholder, and the beholders would have had no way of knowing that Rittenhouse was engaged in an illegal act (because of his age) rather than a protected act (which it would have been had he been a year older).
Common sense is even further displaced when you start to think about how Rittenhouse would claim to have reasonably considered himself to be in danger of imminent death or bodily harm. The criminal complaint against Rittenhouse says that Joseph Rosenbaum, his first victim, approached Rittenhouse and then followed him. Cellphone video shows Rosenbaum — who doesn’t look like he’s got a gun — throwing a plastic bag at Rittenhouse and missing. Rittenhouse then allegedly shot Rosenbaum four or five times, killing him.
Ordinarily, being followed or having a plastic bag thrown at you would not be enough evidence to show that you were in reasonable fear of your life. If someone threw a plastic bag at you, and you responded by killing that person with your bare hands, you would most likely go to jail for murder.
A gun twists that logic. Rittenhouse can and presumably will claim that he feared Rosenbaum would take his gun away from him and shoot him with it. In other words, the presence of Rittenhouse’s own weapon gives Rittenhouse the opportunity to claim that he was in fear of bodily harm.
It seems little short of absurd that a person who carries a gun in public and is then pursued could use the fact that he and not his victim was armed to claim that he had to shoot in self-defense. And maybe a jury wouldn’t buy it. But it is not unlikely that a judge would allow him to advance the argument. Again, the existence of laws that allow open carry is distorting ordinary logic.
The second victim, Anthony Huber, allegedly tried to grab Rittenhouse’s gun. He, too, was unarmed. Some accounts suggest that he may have hit Rittenhouse with a skateboard. Of course by now, Rittenhouse had shot and killed Rosenbaum. That could possibly be depicted as an act of provocation, so that Rittenhouse cannot claim self-defense in his shooting of Huber.
In a sensible world, the fact that Huber may have tried to disarm Rittenhouse, who had just shot Rosenbaum, would turn Huber into a martyred hero — not someone who posed a lethal threat to the shooter.
The logic that turns an unarmed skateboarder into someone whom Rittenhouse could shoot in self-defense again hinges on the presence of the shooter’s own gun. A jury could be convinced that Rittenhouse was acting in self-defense when he shot Huber, again because he was afraid that Huber might take his gun and shoot him.
Finally, Rittenhouse shot and injured Gaige Grosskreutz, who approached Rittenhouse while armed with a handgun. This is the only one of the three shootings that should even conceivably be considered as potential self-defense, because Grosskreutz was armed. But if Grosskreutz believed that Rittenhouse was a shooter on a spree — because Rittenhouse had just killed two men — then it also defies common sense to think that Rittenhouse was entitled to shoot him in self-defense just because Grosskreutz was armed. What about Grosskreutz’s right to self-defense?
The upshot is that Rittenhouse’s self-defense arguments may well go to a jury; and it’s not at all impossible that a jury might acquit him, except on the illegal underage possession of firearms charge. If that happens, the law on the books will have more or less been followed. But the gravitational pull of the right to bear arms will have made a mockery of our aspiration for the laws to make common sense. When there are guns involved, common sense goes out the window.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”