Self-defense involves much, much more than the act of in-the-moment survival, and the case of Kyle Rittenhouse can teach us some important lessons.
Kyle Rittenhouse. A name that many Americans—and most in the self-defense world—will recognize, has been the subject of discussions, blog posts, articles, news and videos around the country … and around the world.
On August 25, 2020, during a Kenosha, Wisconsin, protest over the police shooting of Jacob Blake, Rittenhouse killed two men and wounded a third. Many in the media have called Rittenhouse a vigilante and immediately accused him of setting out to wantonly kill anyone in his path.
This piece will attempt to parse the facts of what happened that night, and perhaps bring some clarity to a confusing situation. Opinions vary … and this one is mine.
Ultimately, my opinion, and the opinions of scores of writers and columnists, doesn’t matter. The final verdict is always determined by a group of citizens called the trier of fact, otherwise known as the jury.
Unrest and protests occurred in Kenosha over the police shooting of Blake, a black man. The officers were white. He was shot seven times by police as a neighbor caught much of the incident on video. Blake survived but is permanently paralyzed. Racially charged protests ensued.
Kyle Rittenhouse, then a 17-year-old, traveled from Illinois to Kenosha, in response to a call from local militia, with the goal of protecting area businesses and residences from looting and destruction during the riotous protests. It was during this riot that Rittenhouse shot and killed two men, Joseph Rosenbaum and Anthony Huber, and wounded a third, Gaige Grosskreutz.
But was Rittenhouse acting as a vigilante as many have claimed, or did he act in self-defense? Many naysayers have been quick to label Rittenhouse a murderer, without fully understanding the law and without the ability to apply it properly.
In Wisconsin, as in most jurisdictions, you may use deadly force against another when you reasonably believe that other person intends to do great bodily harm, or cause the death of you or another person. However, you may use only a level of force that’s proportionate to the force being used against you.
For example, if someone intends, or is attempting to use, an object against you that could cause your death or great bodily harm, you’re authorized, under law, to use any level of force, up to and including deadly force, to stop that threat.
Next, you cannot provoke or incite the attack in order to claim self-defense. In other words, if you’re the initial aggressor, or the one who starts the fight, your claim of self-defense will most likely fail. In many jurisdictions, if you’re the initial aggressor, you must make every reasonable attempt to avoid using deadly force by attempting to run, escape, avoid the attack or prevent the attack, before resorting to using deadly force, and even announce to the other party that you’re done fighting and don’t want to fight any more in order to regain your innocence.
Video retrieved from that night shows Rosenbaum chasing Rittenhouse into a used car lot in the midst of the riotous environment. Authorities say it shows Rosenbaum throwing an object (later determined to be some type of plastic bag) at Rittenhouse, and an attempt was made by Rosenbaum to take Rittenhouse’s rifle away from him. Rittenhouse fired his AR-15-style rifle at Rosenbaum, killing him.
When someone, other than law enforcement, attempts to disarm a loaded weapon from your person, can you assume they intend to use it against you? This can be a difficult question to answer, and it depends on several factors that might be in play.
In law enforcement training, when a subject attempts to disarm a police officer of their weapon, deadly force is authorized. It’s presumed that the subject’s only reason for disarming the officer is to use that weapon against him or her. Can we make the same presumption when a civilian attempts to disarm another civilian? Perhaps.
However, it may come down to what you reasonably perceived, in the moment, in the totality of the circumstances and whether you’re able to articulate the reasonableness of a deadly force threat. Rittenhouse, and others in the self-defense world, contend that Rosenbaum threw the plastic bag at Rittenhouse in an attempt to distract him, with the goal of disarming him.
Following the first shooting, Rittenhouse appears to be running toward police, and away from an angry mob chasing after him, when he trips and falls in the street. The video clearly shows a mob of protesters—I counted at least 8 to 10—chasing him down the street. At one point, a protester appears to kick Rittenhouse in the head when he was down on the ground.
Tripping and falling to the ground, Rittenhouse was in a position of disadvantage, with what appears to be multiple attackers quickly gaining on him. Can Rittenhouse reasonably believe that he is about to be attacked by multiple people? One of them kicked him in the head; what would the others do? Taking a blow to the head, while in a position of disadvantage, with multiple people about to jump on you, can certainly cause a person to reasonably believe this attack can lead to death or great bodily harm.
At this point, Huber appears to stumble over Rittenhouse as he hits Rittenhouse with the end of a skateboard. Huber is shot as he grabs the barrel of Rittenhouse’s gun. A skateboard is a large, solid-wood object, with four hardened wheels, and isn’t intended to be used as a deadly weapon. However, using any object as a weapon that can cause death or great bodily harm is considered deadly force.
Was it reasonable for Rittenhouse to believe he would be struck again, or that the ensuing mob would overpower him, with each rioter taking turns raining blows down on him? Rittenhouse has at least four attackers within lunging distance of him and his rifle. Almost immediately, Grosskreutz approaches within about 2 feet of Rittenhouse with what appears to be a handgun. Rittenhouse shoots Grosskreutz, wounding him in the arm.
In the totality of the circumstances, would Rittenhouse’s actions stack up to the elements of self-defense?
The five elements of self-defense, which have been identified by Attorney Andrew Branca in his book, Law of Self Defense, are imminence, innocence, proportionality, avoidance and reasonableness.
These elements of self-defense can be found, for the State of Wisconsin, in Wisconsin Statute §939.48 (2014), Self-defense and defense of others.
It states, in part:
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably (Reasonableness) believes to be an unlawful interference with his or her person by such other person (Avoidance, or no statutory duty to retreat. See State v. Wenger). The actor may intentionally use only such force or threat thereof as the actor reasonably (Reasonableness) believes is necessary (Proportionality) to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably (Reasonableness) believes that such force is necessary to prevent imminent (Imminence) death or great bodily harm to himself or herself.
• Imminence can be defined as, where in time does the threat fall? Imminent means it’s happening right now—it isn’t happening 5 minutes from now, and 2 minutes ago is too late. The threat must be happening right now, in the instant, and requires your immediate action.
• Innocence addresses who started the fight. You can’t start a fight, escalate it to the point the other party draws a weapon, and then innocently use deadly force claiming they drew first. It doesn’t work that way. Regaining innocence, in many jurisdictions, means you must announce to the adverse party your intention to stop fighting. Furthermore, additional action would be appropriate such as a retreat or moving to a position of safety. If, after regaining your innocence, your adversary pursues you, they may be considered the initial aggressor and you may use the appropriate level of force allowed under law.
• Proportionality means you can use only that level of force necessary to stop the force being used against you. Someone grabs your purse; you can generally grab it back. However, if force that can cause death or great bodily harm is used against you, you may use deadly force to stop that threat.
I want to insert a note here: In the Wisconsin statute, the term “unlawful interference” is used. Please don’t take this out of context: An unlawful interference could be unwanted touching. However, this would not be a deadly force threat. Read the next sentence of the statute. “The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference.” So perhaps using only enough force as to remove the hand of the person touching you would be warranted.
• Avoidance is the duty to retreat. In some jurisdictions, you must make an attempt to retreat to a position of safety before deadly force is allowed. Michigan, my home state, is more of a hybrid duty-to-retreat state. In other words, a person does not have to retreat as long as they meet certain elements of the law. However, Michigan has a jury instruction that allows the jury to use the fact an actor did not retreat, when they could have (or should have), in their verdict decision, if they determine the actor was culpable at some level. Typically, no duty to retreat hinges on two primary factors: the actor is not in the commission of a crime, and he or she is in a place they have the legal right to occupy.
• Reasonableness is simply looking at all elements, in the totality of the circumstances, and applying the standard of the average person, in the same set of circumstances, with similar general knowledge and life experiences, to the facts at-hand. Each element must be present; reasonableness is the umbrella that covers the other four. Keep in mind, in a true case of self-defense, you (your defense team) must prove all five elements to acquit; the government must disprove only one to convict.
Before we get into the details of lessons learned, I want to clarify something: I alluded to the Rittenhouse defense team would need to prove their case by a reasonable doubt. Allow me to clarify.
The burden of proof is beyond a reasonable doubt; this burden falls on the prosecutor. They must prove the case by that standard. In a case of affirmative defense of self-defense, however, the defense has the burden of production and should produce some type of evidence, at some level above zero, to show self-defense.
The old standard was the defense must prove self-defense by a preponderance of the evidence. This is no longer the case as the last holdout state, Ohio, changed its statute. This went away March 19, 2019, and is now the standard in all 50 states. You might still see preponderance of the evidence used in a self-defense immunity hearing. If immunity is not granted, then the case can go to trial. If immunity is granted, case over.
Burden of proof is on the prosecution to prove the charges against the defendant at trial, beyond a reasonable doubt. Beyond a reasonable doubt is a high standard. Although most legal scholars are hesitant to place a threshold number on the standard, many agree it’s somewhere north of 90 percent.
However, the defendant, in any criminal case, may sit mute and not offer any evidence or testimony, relying solely on the lack of ability of the prosecution to prove the charges against them (at least they hope so). Although the defense does not have to offer anything, typically the burden of production falls on the defense. In other words, the defense has the burden to produce some minimal amount of evidence, to the trier of fact, to dispute the prosecution’s charges.
We received plenty of emails and inquiries into the actual trial process of State of Wisconsin v. Kyle H. Rittenhouse. Many wanted to know why the defense team wasn’t objecting more often. It’s called trial tactics. I’ve watched plenty of trials where I sit and scream internally, “Objection!”
But let’s parse this a little more. If the defense counsel objects to everything they can, it can paint them as abusive, overly interruptive and generally in a negative light to the jury. Juries don’t like that. They want to hear the facts without interruption and make their decision.
However, the defense should object when the prosecution goes awry. Additionally, the defense must object at certain times to get their objection on the record in case they need to appeal; it preserves the issue. So, trial attorneys object when needed, object when required, but many times they won’t object if opposing counsel is making their case for them, as we saw multiple times in Rittenhouse.
What All This Means For You
The first lesson we learn from this case is to make sound decisions regarding events and situations in which we choose to involve ourselves.
I’ve been to protests and marches in both Detroit and Chicago. I chose to be there because of the historical aspect of the protest. I have attended these events as an observer, not an active participant.
When Tucker Carlson interviewed Rittenhouse, Rittenhouse stated he had permission to watch one of the auto stores to prevent looting. I’ve also worked in the armed security industry. Never was there a time I showed up with a team without proper pre-planning that was done a day or so before the security event. To show up to a racially charged protest that has national significance without proper planning, surveillance, experience and training is never a good thing. Stay away from people with a mob mentality.
Next, don’t bring a skateboard to a gunfight. I don’t say this sarcastically; I say it with all sincerity. Making a conscious decision to involve yourself in a deadly force situation, or really, in any level of force situation, be sure to have the adequate tools to defend yourself. This is one element in the mob mentality that happens when groups of people believe they are invincible and believe they can get their whacks in and then move out of the situation without suffering harm.
Please don’t be that person. Be a good witness. Call 911. Run away.
In our concealed carry classes, we should be taught to move to cover and avoid making ourselves a static target. If I see the other person has a gun, I don’t purposely move into the fray thinking I’ll hit him with my club and get away without being shot. That’s stupidity. I realize that, sometimes, we could be placed in a situation where we only have what we can use in our immediate environment to defend ourselves. In those situations, too, we need to be thinking about getting out of harm’s way—not running into it.
Third, I’ve read many comments in the gun forums (and one nationally recognized trainer) saying it’s a waste of time, or that it’s even silly, to focus on the lessons we can glean from the way the trial played out in Kenosha. I believe what we can learn is an important aspect of the entire event.
Realize that if you’re involved in a self-defense incident, you will be scrutinized to no end by family, media, outsiders, organized anti-gun groups, neighbors, etc. Perhaps you won’t be scrutinized at the national and international level Rittenhouse was, but you will suffer the damage emotionally, physically and mentally. It’s a proven fact in post self-defense incidents.
Many books have been written about how the body reacts to post-traumatic events. Once a person survives an attack and successfully defends themselves against their assailant, only then does the journey through the mire of emotional and physical stress play out. In the Tucker Carlson interview of Rittenhouse, Rittenhouse seemed very succinct in most of his answers. However, his journey has only begun. This is something he will never forget, and the aftermath of stressors will follow him the rest of his life.
Additionally, be prepared for the government to come after you in ways you’ve never imagined. The role of the prosecution in any criminal case is not to get a conviction; it is to seek justice. Granted, getting a conviction against a serial sex offender may very well be justice. But attempting to try a case because of political motivations or pressure because you don’t agree with the defendant’s actions is certainly not silly. Expect the government to go after you with the vitriol with which they went after Rittenhouse.
Folks, some will miss the point here. I speak with people every day who truly think self-defense is the in-the-moment act of surviving. Imminent survival is only one part of the equation, although, granted, it is the most important. However, pre-survival is going to the range, training, role-playing, visualization and training in medical skills, to name a few.
Also consider post-survival skills and their role. The pre-survival training in medical skills might come in handy if you’re injured and need to apply those skills for yourself or a loved one. Post-survival skills may also be needed months—even years—after the incident. PTSD, emotional, psychological and physical issues may continue for years as well. They not only affect the survivor, but also their spouse, children, friendships and other relationships.
Learn from the Rittenhouse case. Prepare pre- and post-self-defense incident, because the effects of the 3-second self-defense incident will last a lifetime.
About The Author:
Art Joslin, J.D, D.M.A. is the director of Legal Services for the Armed Citizen’s Legal Defense Network. His background includes law enforcement, court officer, use-of-force expert witness, Level 4 Commando Krav Maga instructor, firearm instructor, and Massad Ayoob Group staff instructor. He holds a law degree from Thomas M. Cooley Law School in Lansing, Michigan.
Editor’s Note: This article originally appeared in the February 2022 issue of Gun Digest the Magazine.
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