Kenosha, a city of 100,000 in Wisconsin’s southeastern corner, now confronts the question of when lethal force is justified in two different cases. One, the shooting of Jacob Blake by a police officer, I addressed yesterday. The other is the case of Kyle Rittenhouse, who is alleged to have killed two people and injured one during the civil unrest this week, and who has been charged with first-degree intentional homicide, reckless homicide, and other offenses.
Rittenhouse is a 17-year-old from Antioch, Ill., about a half hour’s drive from Kenosha. Inexplicably, this underage police cadet from out of state wound up on the streets after curfew in a place where a riot was likely imminent, doing interviews with journalists and openly carrying an AR-15–style rifle.
There can be no question that Rittenhouse and whatever adults were in charge of him made idiotic decisions. Minors should not stand guard at riots play-acting at being cops. But even people who knowingly put themselves in the wrong place at the wrong time are allowed to defend themselves against attack when they get there. So the biggest legal question is: Did Rittenhouse defend himself against attack with an appropriate amount of force, or were the people he shot the ones acting in self-defense by trying to disarm him?
The very beginning of the situation is not on video that I am aware, but the complaint against Rittenhouse contains some key details from Richard McGinnis, a Daily Caller reporter who was interviewing Rittenhouse at the time:
McGinnis said that as they were walking south another armed male who appeared to be in his 30s joined them and said he was there to protect the defendant. McGinnis stated that before the defendant reached the parking lot and ran across it, the defendant had moved from the middle of Sheridan Road to the sidewalk and that is when McGinnis saw a male ([Joseph] Rosenbaum) initially try to engage the defendant. McGinnis stated that as the defendant was walking Rosenbaum was trying to get closer to the defendant. When Rosenbaum advanced, the defendant did a “juke” move and started running. McGinnis stated that there were other people that were moving very quickly. McGinnis stated that they were moving towards the defendant. McGinnis said that according to what he saw the defendant was trying to evade these individuals.
After that, much of the situation was recorded, and the New York Times has done an excellent job of stitching the videos together. This Twitter thread from a co-author of the piece nicely explains the events and (for those willing to watch graphic footage) provides the key clips:
A teenager faces charges in shootings that left 2 people dead in Kenosha, WI. The @nytimes Visual Investigations team reviewed hours of livestreams to track 17-year-old Kyle Rittenhouse’s movements during and leading up to the shootings. [THREAD] https://t.co/FRCYlS5wgH
— Christiaan Triebert (@trbrtc) August 27, 2020
The first video starts with people already chasing Rittenhouse, one of whom throws something at him. One person even fires a handgun in the air — and another, Rosenbaum, charges at Rittenhouse, who shoots him. After that, there are more shots from an unknown source, and Rittenhouse calls a friend on his phone and leaves.
But again he’s pursued, with some protesters urging others to join in, and this time he falls down. Several people move in on him, and he takes shots at three, hitting two. One is holding a handgun and survives a shot to the arm; the other has a skateboard and dies. Again there are additional mysterious gunshots after the fact.
Obviously, a big unanswered question right now is how this all really got started. But as we wait for that information, let’s take a gander at the Wisconsin laws at issue.
There are two extremes here: justifiable use of deadly force and first-degree intentional homicide. So let’s see what the law says about those two situations, bearing in mind that other charges can apply if Rittenhouse’s behavior fell in between them. (There are plenty of options: Rittenhouse is charged with reckless homicide for the first fatal shooting, first-degree intentional homicide for the second, and attempted first-degree intentional homicide for the nonfatal one, in addition to charges for reckless endangerment and bearing a dangerous weapon as a minor.)
Quite typically for a U.S. state, Wisconsin allows civilian use of deadly force when one “reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” One major issue, then, will be whether Rittenhouse reasonably thought that the folks engaging with him meant to inflict serious injury, not just disarm him.
But what if Rittenhouse provoked the confrontation to begin with? That’s bad for a claim of self-defense, but it doesn’t preclude one. Here’s another excerpt from the Wisconsin statute books:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
So, even if Rittenhouse bears some responsibility for the initial conflict, he can still argue that he did everything he could to escape the situation and withdraw from the fight. Both shooting incidents began with him running away.
Moving to the other extreme, to prove first-degree intentional homicide, prosecutors will have to show that Rittenhouse “cause[d] the death of another human being with intent to kill that person” and will have to disprove the existence of any “mitigating circumstances” the defense asserts. If the prosecution fails at the latter task, the offense is knocked down to the second degree.
Mitigating circumstances include “adequate provocation,” meaning the victim did something “sufficient to cause complete lack of self-control in an ordinarily constituted person”; “unnecessary defensive force,” meaning Rittenhouse “believed he . . . was in imminent danger of death or great bodily harm and that the force used was necessary to defend [himself],” even though the belief was unreasonable; and “prevention of felony,” meaning he believed his actions were necessary to stop the “commission of a felony,” even though the belief was unreasonable. In other words, even if Rittenhouse unreasonably thought his actions were necessary, he can get the charge downgraded, though in that case he’ll still have committed a very serious offense.
Rittenhouse is already a hero to some and a supervillain to others; in that sense, he is the Bernie Goetz of 2020. The highest charge against him strikes me as a stretch, but beyond that I don’t have any bold opinions yet. The outcome for each shooting will depend on whether Rittenhouse reasonably feared for his life, which in turn might depend on broader context we lack thus far — and even if all three shootings were justified, there are still firearms and reckless-endangerment charges for him to contend with.
Where the f*** were this kid’s parents?