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Wednesday, 07 October 2020 13:42

Are Self-Defense Claims of Kyle Rittenhouse's Attorneys Viable According to Existing Law?

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On August 25, 2020, during night three of protests in Kenosha Wisconsin following the shooting in the back of Jacob Blake, 17-year-old Kyle Rittenhouse fatally shot two protesters, and seriously wounded a third. Kyle Rittenhouse’s lawyers are arguing that the 17-year-old acted in self-defense.

Rittenhouse has been charged with six crimes, which include first degree reckless homicide, first degree reckless endangerment, first degree intentional homicide, attempted first degree intentional homicide, first degree reckless endangerment of an unknown male, and possession of a dangerous weapon by a person under 18, which is a misdemeanor. 

Does Rittenhouse have a viable self-defense claim? Let’s examine the existing laws that apply to Rittenhouse’s case.

Self-Defense

Wisconsin law pertaining to the use of self-defense states, “A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. (The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary 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 believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”

When broken down, the key elements of Wisconsin law pertaining to lawful self-defense include:

  • Reasonableness - would a reasonable person under the same circumstances feel as if their life is in danger?
  • Imminent - is the danger of death or bodily harm about to occur in that instance, or at another time?

Reasonableness

In the case of self-defense and/or lethal force being used for self-defense purposes, there are no measurable guidelines in Wisconsin law dictating when such actions are excusable. However, the concept of exercising “reasonable” judgement is an integral part of self-defense. The analysis is an subjective one but can be applied objectively — If a reasonable individual was placed in the same circumstances, would they feel as if they were in great danger of death or bodily harm? Would this reasonable individual feel as if lethal force was their only option to escape or avoid the confrontation? In the case that the answer to both of these questions is “yes”, then lethal force can be lawfully used according to Wisconsin law. Ultimately, a jury would have to decide if the circumstances seemed so dire to the person that fatal force was necessary. And that decision, while viewed from the killer’s perspective, is, in a real sense, applied with this objective “reasonable person” standard. Even though jurors are not allowed to place themselves in the shoes of the defendant, they will do just that in deciding if self-defense was justified.

An additional key element is the presence of provocation

Provocation

“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.”

So, in Wisconsin, if you provoke an attack, you cannot then claim self defense unless you truly feel your life is in danger. And even then, you must make every effort to escape the situation and give notice to the other actors that you are abandoning the fight.

Klye Rittenhouse’s Defense

The attorneys for this 17 year old defendant are poised to argue that in both shootings that took place, he was reacting to a confrontation whereby the victims were attempting to disarm him in the context of a fraught and occasionally violent protest. The first shooting involved a person attempting to grab his weapon and he shot several times. He then fled the scene and was followed by numerous people who were trying to alert police that he had just shot someone. The police ignored those attempts and drove right past Rittenhouse. Three people then gave chase, one with a handgun, and Rittenhouse tripped and fell to the ground. He then turned and fired, killing one and injuring another.

The trick with self-defense is it is highly fact dependent and also revolves around a murky definition of what is “reasonable.” So one side may argue or emphasize the running away as escape or the presence of the handgun as legitimate fear, the other side would argue and emphasize the use of a military weapon by a non-police actor that provoked others into action against him.; Furthermore, many other miniscule facts may come into play such as angle of the shots, the path of the escape, words/threats that were claimed to have been said by any party, etc.

All of this is put into the large caldron of jury and the resulting brew is a finding of “reasonableness” or not. So will a Kenosha County jury come in with sympathy for Rittenhouse and think that he is being falsely accused and is the victim of violent rioters while he was trying to protect people and property? It seems a very real possibility even if, from a strictly legal standpoint, his self defense claim appears quite thin.

Birdsall Obear & Associates LLC


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