MILWAUKEE — Within hours of the shootings in Kenosha, Wisconsin, last year, supporters were clamoring that Kyle Rittenhouse acted in self-defense, and his lawyers said it was so obviously lawful self-defense that charging him was nothing but a political move.

However, is this clear? Because it is so clear it wasn’t self-defense, the prosecution has charged one of the shootings with first-degree intentional killing. 

In Wisconsin, self-defense works like this: If a jury is convinced Rittenhouse reasonably feared he would be killed or seriously hurt by Joseph Rosenbaum, Anthony Huber and Gaige Grosskreutz, he would be found not guilty of most of the shootings.

Rittenhouse must only show “some evidence” of self defense before it becomes a burden on prosecutors to prove beyond any reasonable doubt that Rittenhouse believed only fatal force could save him.

The jury will be briefed on the rights of self-defense before they begin deliberations.

Michael O’Hear from Marquette Law School, Professor of Criminal Law said that it is important to determine whether the defendant really believed (shooting men) was necessary for him to avoid imminent death or severe bodily harm.

“And second, the most important battle in trial, was that reasonable?” O’Hear added. It’s an open-ended decision and the jury can use its experience, values and common sense to determine who wins.

So-called perfect self-defense results in complete acquittal.

In the death of Huber, Rittenhouse is charged with first-degree intentional homicide, which raises the potential of imperfect self-defense, when a defendant proves an honest — but unreasonable — belief he had to resort to deadly force.

The defense may be able to reduce the second-degree intentional murder charge, which is not subject to the mandatory life sentence.

How the Rittenhouse trial will unfold and what the law states about retreat in Wisconsin

While Wisconsin law does not contain a specific duty to retreat from attack, the presence or absence of opportunity to retreat can factor into the analysis of whether deadly force was reasonable under the circumstances. 

O’Hear stated that the jury instructions “kind of speak out from both sides of their mouths on retreat.” “On the one hand, there’s no duty, but the jury could find you don’t qualify for self-defense because you didn’t retreat. Retrenchment in Wisconsin is not regulated by the law.

Joseph Rosenbaum was Rittenhouse’s first victim. He had no weapons when Rittenhouse began to chase him. Rittenhouse chose to let Rosenbaum run between parked cars.

Rittenhouse’s lawyers have advanced the theory Rosenbaum, who, because he was a felon and could not legally possess a gun, was trying to take Rittenhouse’s rifle from him, and could have then killed Rittenhouse.

In police shootings, officers often say they were afraid someone was reaching for the weapon of another officer. Argument is that if you have a gun, you are entitled to use it against anyone you suspect might get it.

O’Hear stated that this approach makes him feel uncomfortable when he is involved in shooting police cases.

He said, “They are almost always armed upon duty.” He said, “If they really make that argument it’s almost always armed on duty,” it would be like giving them carte blanche for their weapons.

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Rittenhouse, who was already falling to the street, was accosted by an unknown male and unleashed a jump kick. Rittenhouse fired two shots that missed. Rittenhouse was arrested for first-degree recklessly threatening safety.

Although the prosecution might argue Rittenhouse was allowed to retreat in any open space, the defense will say that Rittenhouse was confronted by angry people and cannot escape violence threats.

Huber hit Rittenhouse then with a skateboard and attempted to steal his rifle. Rittenhouse was killed by a single bullet to his stomach. Defense experts suggested that the skateboard might be considered as a dangerous weapon.

Huber was said to have believed Rittenhouse had previously killed someone and that he wanted to disarm him. This is according his family as well as other witnesses. Huber’s murder is being investigated by Rittenhouse.

Grosskreutz was walking towards Rittenhouse just like Rittenhouse had shot Huber. After Huber had been shot, he briefly stopped to raise his arms and held a gun in his right arm. Still seated on the ground, Rittenhouse looked up to shoot Grosskreutz in his right bicep. The prosecution was charged with first-degree intentional murder.

Pre-trial testimony by a defense expert revealed that Rittenhouse had fired four shots at Rosenbaum in under a second. It also stated that seven seconds had passed between Rittenhouse’s shot at Grosskreutz, his attempted kicker shot, and the time he took to shoot Grosskreutz. The expert is expected to testify about that, and human reactions to sudden stimuli, but will not be allowed to offer an opinion or whether or not Rittenhouse’s reactions were reasonable — the ultimate question the jury must decide.

Police officers who are accused of excessive force often have experts on force present on their behalf. O’Hear can see some similarities with these cases. However, Rittenhouse lacks the professional training to use legal guns for protection. This might make it easier to prove that Rittenhouse was reasonable.

“On the other hand,” O’Hear said, “the fact that he’s not a law enforcement officer, but trying in some ways to act like one — protecting property, order and safety, as an untrained but armed civilian, doesn’t necessarily put him in a sympathetic light.”

The law considers provocation a ‘complicated aspect of the law’ which could be used to self-defense

Rittenhouse could also invoke the right of self-defense, which is another possible wrinkle. According to the Wisconsin jury instruction, “A person engaging in illegal conduct likely to provoke others into attacking, and who provokes an attack is prohibited from using or threatening force to defend against such attack.”

Except if the provocateur thinks he’s in imminent danger of death or great bodily harm — and then slightly different rules apply.

O’Hear called provocation “an interesting and complicated part of the law,” of self-defense. 

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His lawyers deny it but Rittenhouse carried an assault-style weapon at 17. Rosenbaum could have been prompted by this alone in the circumstances to run after Rittenhouse. 

Did he shoot Rosenbaum once, which was apparent to witnesses at the time as a crime? Or did that cause Huber or Grosskreutz, in an act of anger, to attack Rittenhouse to prevent further violence from happening?

O’Hear indicated that he believes there’s something in it, and that he’s been wondering if O’Hear could suggest that the state raise it. 

But he said while Rittenhouse’s behavior was likely inappropriate, or threatening to some, it might be difficult to argue that it would provoke an attack against him, given he was armed with a rifle.

Rittenhouse can use lawful force to kill if his actions were perceived as provocative if Rittenhouse believed that his death or great injury was imminent and had exhausted all other options for escaping or avoiding those consequences.

Follow Bruce Vielmetti on Twitter at @ProofHearsay


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