Kyle Rittenhouse Judge Allows Those He Killed to be Called ‘Rioters’ Not ‘Victims’

Pretrial rulings strengthen his self-defense claims.

Kyle Rittenhouse,, accused of shooting three people during a protest against police brutality in Wisconsin last year, waits for a motion hearing, Tuesday, Oct. 5, 2021, in Kenosha, Wis. (Mark Hertzberg/Pool Photo via AP)

Chicago Tribune (“Men shot by Rittenhouse can be described as ‘rioters’ and ‘looters’ but not ‘victims,’ judge rules ahead of trial“):

Kyle Rittenhouse’s lawyers can refer to the men he shot as “rioters” and “looters,” but prosecutors still may not call them “victims” at any time during the teen’s upcoming murder trial, a judge ruled Monday.

Circuit Judge Bruce Schroeder cautioned the defense team against using pejorative terms during opening statements, but he said they could use them in their closing arguments if the evidence suggested the men engaged in criminal acts.

“He can demonize them if he wants, if he thinks it will win points with the jury,” Schroeder said.

Rittenhouse has pleaded not guilty to the charges and says he acted in self-defense when he fatally shot Joseph Rosenbaum and Anthony Huber and wounded Gaige Grosskreutz in August 2020.

Then 17 and living in Antioch, Rittenhouse fired the shots while patrolling downtown Kenosha with an AR-15-style rifle amid the turmoil surrounding the shooting of Jacob Blake, a Black man, by a white police officer. Despite not being old enough to openly carry a gun, Rittenhouse volunteered as an armed security guard after businesses had been burned and vandalized during demonstrations held the previous night.

Schroeder earlier had ruled the three men cannot be referred to as “victims” during the trial because it would be prejudicial to Rittenhouse. Such rulings are not uncommon in self-defense cases where there is a dispute over who bears responsibility.

In allowing the defense to describe the people Rittenhouse shot in pejorative terms, the judge stressed that he had not changed his mind about calling them victims.

“The word victim is a loaded, loaded word,” Schroeder said.

The ruling — among the last issued by Schroeder before jury selection begins Nov. 1 — clearly frustrated prosecutors, who suggested the judge was creating a double standard by allowing Rosenbaum and Huber to be disparaged when they could not defend themselves.

“The terms that I’m identifying here such as rioter, looter and arsonist are as loaded, if not more loaded, than the term victim,” Assistant District Attorney Thomas Binger said.

This seems at first blush to be a stacking of the deck, allowing the defense to use inflammatory, prejudicial language while the prosecution has to avoid perfectly natural descriptions of people shot by a provocateur illegally brandishing an assault rifle. Then again, given that the state seeks to take away Rittenhouse’s liberty, it’s not unreasonable that they have to play by more restrictive rules.

Further, given that there is no dispute over whether Rittenhouse killed the men but rather whether he was justified by the self-defense doctrine, there’s some logic to allowing his attorneys greater latitude.

The defense intends to argue that Rosenbaum, in particular, posed a danger that night as he threatened to kill people and engaged in arson. None of the acts, however, occurred in the moments immediately preceding the shooting.

“The behavior of many people there was lawless,” defense attorney Mark Richards said. “Mr. Rosenbaum was at the top of that list.”

Schroeder indicated he would allow evidence of bad behavior that night by the men Rittenhouse shot because it could speak to how dangerous they would have seemed to the teen. Prosecutors failed to convince the judge that the defense wanted to sully Rosenbaum’s reputation so the jury could more easily justify the shooting.

“This is an attempt to tell the jury that Mr. Rosenbaum was a bad guy who deserved to die,” Binger said. “That’s really what’s going on here, your honor.”

Oftentimes, “rioter” and “looter” have racial connotations but that’s not the case here. While Rosenbaum and Huber were participating in Black Lives Matter protests, they were White.

Nor was this the defense’s only win in the pre-trial phase:

Schroeder also rejected the prosecution’s request to block any evidence that local law enforcement provided water to vigilantes the night of the shooting and thanked them for their presence. In video taken before Rittenhouse fired his gun, officers in an armored vehicle tossed bottles of water to him and other armed civilians who were clearly violating the city’s 8 p.m. curfew.

One officer can be heard on the recording expressing his gratitude to the group.

“We appreciate you guys,” the officer said. “We really do.”

“I’m concerned this is going to be turned into a trial over what law enforcement should or shouldn’t have done that night,” Binger said. “And I don’t think that’s what this court or this trial should be deciding.”

In opting to allow the evidence, Schroeder said he wouldn’t permit the defense to argue the encouraging words reflected the police department’s overall opinion. It could, however, help explain Rittenhouse’s mindset that night.

“I would not let it be used to prove that the entire police presence on that evening appreciated Mr. Rittenhouse’s behavior or his presence,” he said. “Relevance is another matter.”

This strikes me as reasonable. It’s legitimately part of the narrative that unfolded that night and speaks to Rittenhouse’s state of mind. And it’s also noteworthy that Gaige Grosskreutz, the man wounded by Rittenhouse but survived, has filed a civil suit against the Kenosha police arguing that they effectively “deputized” Rittenhouse and other armed vigilantes.

While I am not a lawyer, I fully expect Rittenhouse to win here. First, the charges are simply absurdly high: first-degree intentional homicide, first-degree reckless homicide, and attempted first-degree intentional reckless homicide are simply not going to stick when there is any question as to whether he feared for his life.

Under Wisconsin law,

939.48  Self-defense and defense of others.
(1)  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.

But there’s a huge caveat:

(2) Provocation affects the privilege of self-defense as follows:
(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.

Wandering around the scene of a protest brandishing an AR-15 is surely provocative. And, since Rittenhouse was a minor at the time, it was illegal under both Wisconsin (where he committed the act) and Illinois (where he lived). And, since he crossed state lines to do it, it was likely a Federal crime as well.

But Rittenhouse almost certainly regained his privilege of self-defense given the sequence of events. Here’s Tribune columnist Eric Zorn‘s summary:

According to prosecutors, video from the scene and witness accounts, the legally relevant portion of the story picked up a little before midnight: For unknown reasons, Joseph Rosenbaum, 36, of Kenosha, who had earlier been yelling angrily at the armed men who had come to the protests, was at a run, chasing Rittenhouse along Sheridan Road and into the parking lot of a used-car dealer.

When Rosenbaum, who was unarmed, finally cornered Rittenhouse, he grabbed for the teenager’s gun. Multiple shots rang out, and Rosenbaum fell, mortally wounded.

Did Rittenhouse have a reasonable belief under the circumstances that if Rosenbaum got his gun he would suffer death or great bodily harm? Jurors in Wisconsin are instructed that “reasonable” means “what a person of ordinary intelligence and prudence would have believed … under the circumstances that existed at the time.”

Tensions were high late into the protests against the police shooting of Jacob Blake two days earlier. Gunshots from other weapons were heard immediately before and after the shots that killed Rosenbaum. Whether you think Rittenhouse is a hero for helping guard against a repeat of the vandalism the night before, or if you think he’s a reckless wannabe cop who had no business in Kenosha, you’ve got to concede that, at that moment, he was probably terrified.

Rittenhouse hustled away. Soon a group of people began chasing him up Sheridan Road, shouting “Beat him up!” “Get him! Get that dude!” and “Get his ass!” according to the prosecution’s summary. One of the pursuers took a swing at Rittenhouse and knocked his ball cap off.

Were those running after him simply trying to effect a citizen’s arrest in the belief that Rittenhouse had just committed a crime and might be a danger to others?

“Whether or not the people chasing him thought they had the right to chase him is irrelevant,” said Richard Kling, a veteran Chicago defense attorney who teaches evidence and forensic science at Chicago-Kent College of Law.

Rittenhouse stumbled and fell as he ran. One of his pursuers took a flying kick at his head and missed as Rittenhouse fired two errant shots from the ground. A second pursuer, Anthony Huber, 26, of Silver Lake, Wisconsin, swung a skateboard at Rittenhouse, hitting him on the shoulder, and grabbed and tried to hang onto Rittenhouse’s rifle. Rittenhouse shot Huber in the chest during that struggle, prosecutors said, killing him.

A third victim, Gaige Grosskreutz, 26, of West Allis, Wisconsin, who survived, first held up his hands in a gesture of surrender at a distance of a few feet. In one of his hands, he held a gun. But when he “moved toward” Rittenhouse, prosecutors said, Rittenhouse fired, striking him in the arm.

That final shooting “will be the most serious problem” for Rittenhouse at trial, Kling said. “The guy did have a gun in his hand. But he wasn’t pointing it at or threatening Rittenhouse.”

What about the context, though? The confrontational, high-adrenaline interactions that led up to the tragic deaths. The night air punctuated by gunshots. Danger all around.

Police should have arrested Rittenhouse long before it got to this. But, with an angry horde chasing him, yelling at him, and taking swings at him, he was almost certainly in fear for his safety. I just can’t imagine a jury convicting him of homicide, let alone first-degree murder, under these circumstances.

FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. de stijl says:

    This seems like appeal court begging on the judge’s part. In Wisconsin given the way Rs have stacked the deck there, we are going to see more of this shit unless things change.

  2. James Joyner says:

    @de stijl: We should obviously have stricter enforcement of our gun laws and there’s simply no question Rittenhouse should have been arrested well before he was in a position to fear for his life. But I’m not sure what the judge is supposed to do here: he’s absolutely right to insulate himself from being overturned on appeal in the unlikely event Rittenhouse is convicted. Bending over backward to ensure he has a fair trial is prudent.

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  3. Barry says:

    This is just a white right-winger being treated as gently as possible.

    Like the Jan 6 insurrectionists getting sentences measured in months, not years or decades.

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  4. Tony W says:

    @de stijl: Sadly, this is a criminal trial so if Rittenhouse is acquitted, my understanding is that there is no appeal for the state. Double jeopardy and all.

    They can, however, bring new charges, perhaps less “absurdly high” ones (as James calls them).

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  5. James Joyner says:

    @Tony W:

    if Rittenhouse is acquitted, my understanding is that there is no appeal for the state. Double jeopardy and all.

    Correct. It possible that Federal civil rights charges could be filed but, given his age and the fact that the victims were White, it’s exceedingly unlikely.

    They can, however, bring new charges, perhaps less “absurdly high” ones (as James calls them)

    I don’t think that’s right. IANAL but there’s generally an obligation for prosecutors to bring all charges for a particular action simultaneously. Any lesser-included charges should have been brought. (I think, for example, that he’ll be convicted on lesser counts related to the carrying of the firearms.)

  6. OzarkHillbilly says:

    @James Joyner: Bending over backward to ensure he has a fair trial is prudent.

    Too bad Rosenbaum and Huber never got the chance at a fair trial.

    Funny how the armed individual who puts himself into a chaotic situation is thought to have the “right of self defense” but the people he threatened with that firearm do not have the same right of self defense. And make no mistake, being there, in that place at that time with a firearm is indeed a threat.

    Our laws are broken.
    Our society is broken.

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  7. wr says:

    ” First, the charges are simply absurdly high: first-degree intentional homicide, first-degree reckless homicide, and attempted first-degree intentional reckless homicide are simply not going to stick when there is any question as to whether he feared for his life.”

    Sure. I mean it’s a fact he brought a long gun to a demonstration so that he could hunt and kill human beings whose politics he didn’t like. But when those human beings didn’t simply agree to be murdered by him, he had very good reason to fear for his life, and he should be allowed to kill as many of them as he likes!!

    That basically the position here?

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  8. wr says:

    @James Joyner: “Bending over backward to ensure he has a fair trial is prudent.”

    Yes, clearly that’s what this is. There’s absolutely no chance this judge is actively siding with the conservative punk who went on a field trip to murder libs, He just wants to be fair!

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  9. James Joyner says:

    @OzarkHillbilly:

    Too bad Rosenbaum and Huber never got the chance at a fair trial.

    It just isn’t how our system works or has ever worked. Rittenhouse has been charged with their murder and the state is required to show, beyond reasonable doubt, that he committed it with malice aforethought. The statute describing the crime, like most if not all similar statutes in other states, specifically carves out a self-defense exception that requires Rittenhouse to prove affirmatively.

    @wr:

    I mean it’s a fact he brought a long gun to a demonstration so that he could hunt and kill human beings whose politics he didn’t like.

    What’s your evidence for that? So far as I’m aware, he didn’t point his weapon at anyone until he was chased down and cornered. Again, I think he should have been arrested for having brought the weapon.

    But when those human beings didn’t simply agree to be murdered by him, he had very good reason to fear for his life, and he should be allowed to kill as many of them as he likes!!

    That’s simply a gross distortion of what actually happened in this case. They literally chased him down and took swings at him, one with a weapon (the skateboard). Another pointed a gun at him.

    @wr:

    There’s absolutely no chance this judge is actively siding with the conservative punk who went on a field trip to murder libs

    I know nothing of this judge or his history or sympathies*. But I just think he’s ensuring that, if Rittenhouse is convicted, it’ll stand up on appeal because he (the judge) didn’t deny them requested tools to prove self-defense.

    *EDITED TO ADD: He appears to be rather elderly, having finished law school in 1970. He’s a former prosecutor but he was appointed to the bench by Governor Anthony Earl (D) in 1983. Other sources that I found quickly were paywalled.

    EDITED AGAIN TO ADD: A WISN backgrounder notes:

    Before the attention of Rittenhouse, the honorable 75-year-old made headlines in the 2008 Mark Jensen homicide trial.

    Schroeder sentenced Jensen to life in prison after a found him guilty of poisoning his wife with anti-freeze.

    A conviction that would later be overturned, in part, because of a letter Schroeder allowed to be used as evidence.

    The letter said if anything happened to her, her husband should be the first suspect.

    The case came up during Rittenhouse’s final evidence hearing Tuesday.

    “I had a murder case about 20 years ago. Perhaps you’ve heard of it: state against Mark Jensen. I made evidentiary ruling here and DA appealed it, and it went to the Supreme Court, and it’s going to trial again next April 20, years later, because the Supreme Court reversed my evidentiary decision,” Schroeder said.

    I think that’s more evidence for my suspicion.

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  10. HarvardLaw92 says:

    @James Joyner:

    I don’t think that’s right. IANAL but there’s generally an obligation for prosecutors to bring all charges for a particular action simultaneously. Any lesser-included charges should have been brought. (I think, for example, that he’ll be convicted on lesser counts related to the carrying of the firearms.)

    You’re correct. If he’s acquitted, that’s basically the ballgame. The only remaining avenue would be federal charges, which for the reasons you’ve noted are highly unlikely.

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  11. HarvardLaw92 says:

    I don’t as a rule really do crystal ball, but based on the totality of the facts that are on the table and the demographics of the potential jury pool, I’d give this a better than 80% chance that he’s acquitted in full.

    Jury selection hasn’t begun yet (projected to begin on Monday), and the judge in question has already indicated that he will not permit jury questionnaires, so expect voir dire to take a while.

    1
  12. SteveCanyon says:

    One thing I don’t understand about this is why Rittenhouse’s mother’s actions aren’t being discussed. What kind of parent takes their armed 17 year old minor to what is highly likely to be (and was) a dangerous situation and leaves him to fend for himself?

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  13. Jen says:

    Everything about this is depressing. This horrible young man with his entitlement and delusions of relevance will very likely be acquitted of killing two people, an act which there is no doubt he committed.

    He’ll then end up on the right wing nut job speaker circuit and make a pile of money.

    We are indeed a broken country.

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  14. wr says:

    @James Joyner: “That’s simply a gross distortion of what actually happened in this case. They literally chased him down and took swings at him, one with a weapon (the skateboard). Another pointed a gun at him.”

    Because he brought a semi-automatic rifle so he could kill people.

    He wasn’t just walking down the street minding his own business. He came heavily armed to a serious disruption, deliberately putting himself in a position where he would “have” to kill people. That’s premeditation.

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  15. wr says:

    @HarvardLaw92: “I’d give this a better than 80% chance that he’s acquitted in full.”

    I wish I didn’t agree with you. But I suspect Wisconsin will only be the first state where it’s legal to murder anyone you disagree with politically, as you long as voted for Trump.

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  16. OzarkHillbilly says:

    @James Joyner: It just isn’t how our system works or has ever worked.

    No shit James, they’re dead.

    Rittenhouse has been charged with their murder and the state is required to show, beyond reasonable doubt, that he committed it with malice aforethought.

    He brought an AR-15 to a demonstration/riot for which he had no reason to be there, except to fulfill his own personal mission to kill people he thought deserved to die for crimes that didn’t even rise to the level of capital crimes without the benefit of arrest or trial. That is malice aforethought and if we had sane laws than he would be found guilty, and his mother would be found guilty of aiding and abetting.

    The statute describing the crime,

    I repeat, our laws are broken. You can cite chapter and verse of them and it will never be anything more than idiocy.

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  17. CSK says:

    Rittenhouse reminds me of a guy I knew who was desperate, absolutely desperate, to become a cop, but he kept flunking all the psychological exams. I do know he owned, legally, several guns. If there was ever some kind of civil unrest, I suspect he’d have been out there, playing cop and shooting people.

    2
  18. Stormy Dragon says:

    @OzarkHillbilly:

    Funny how the armed individual who puts himself into a chaotic situation is thought to have the “right of self defense” but the people he threatened with that firearm do not have the same right of self defense.

    If Rittenhouse is acquitted, the message is going to be that his victims should have just shot him as soon as he showed up and then sob about how terrified he made them feel.

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  19. HarvardLaw92 says:

    @wr:

    Because he brought a semi-automatic rifle so he could kill people.

    The facts in evidence don’t support that assertion. He attempted to flee from persons who actively engaged in initial provocation, at least one of which was also armed with a firearm, and only resorted to force when unable to continue to do so while actively being attacked. If you’re going to make the blanket assumption that Rittenhouse brought a firearm with the intent to murder, then you have to reasonably make the same assumption about Grosskreutz. I will agree that the kid is an asshole and shouldn’t have been there, but the facts are quite supportive of an assertion of self-defense. But for their decision to actively pursue and attempt to harm him, they’d all probably still be alive. They initiated pursuit, and that’s the ballgame.

    You’re layering personal opinions about their politics and motives onto the facts. That phenomenon is one of the reasons juries are, generally speaking, a bad idea.

    9
  20. James Joyner says:

    @Jen:

    This horrible young man with his entitlement and delusions of relevance will very likely be acquitted of killing two people, an act which there is no doubt he committed.

    He may well be a horrible young man. But the state of Wisconsin has charged him with two counts of first-degree murder and one of attempted first-degree murder and must prove it beyond a reasonable doubt. The law in question allows him to attempt to prove that he acted in self-defense, which he almost certainly did.

    @OzarkHillbilly:

    He brought an AR-15 to a demonstration/riot for which he had no reason to be there, except to fulfill his own personal mission to kill people he thought deserved to die

    It is up to the state to prove that. I don’t think they can, least of which because it’s probably not true.

    @Stormy Dragon:

    If Rittenhouse is acquitted, the message is going to be that his victims should have just shot him as soon as he showed up and then sob about how terrified he made them feel.

    First, they would almost certainly be convicted under those circumstances. Second, here’s a novel alternative: don’t chase down someone armed with an AR-15 who isn’t actually threatening you. It’s just a really, really stupid thing to do.

    @HarvardLaw92:

    You’re layering personal opinions about their politics and motives onto the facts. That phenomenon is one of the reasons juries are, generally speaking, a bad idea.

    Yes. Depending on the jury composition, it can work to the benefit of either side but probably mostly prosecutors in most cases.

    4
  21. Kathy says:

    @James Joyner:

    I wonder that the great state of Wisconsin’s legal position is on lesser included offenses.

    2
  22. HarvardLaw92 says:

    @James Joyner:

    He may well be a horrible young man. But the state of Wisconsin has charged him with two counts of first-degree murder and one of attempted first-degree murder and must prove it beyond a reasonable doubt. The law in question allows him to attempt to prove that he acted in self-defense, which he almost certainly did.

    It goes a little beyond just that. First degree murder requires the establishment beyond a reasonable doubt not only that the accused caused the homicide, but also that he/she did so with the intent to kill AND having considered and established that intent beforehand. They’ll essentially have to prove that we went to Kenosha having already made the decision to kill and deliberated on how planned how he intended to do so.

    Obviously lesser included charges are available to the jury should they wish to make a finding of guilt relative to them, but the prosecutors are legitimately swinging for the fences here.

    4
  23. James Joyner says:

    @Kathy: The Wisconsin code’s provisions on lesser-includedd looks to my untrained eye to be fairly standard. As @HarvardLaw92 suggests, a jury could conceivably find that he was guilty of a lesser form of homicide. But I don’t see how that would get around the self-defense claim, which seems pretty strong to me.

    1
  24. Modulo Myself says:

    There’s a video taken before the shooting where Rittenhouse wishes he had his gun so he could shoot shoplifters. He’s just a normal American gun nut with all of the typical inferiority complexes, so if admitted as evidence this will not mean anything in court, and overall I find it hard to believe that anything will convict him of 1st degree murder. But this kid is no different than the guys who murdered Ahmaud Arbery or George Zimmerman. He’s a walking menace who I’m sure was threatening everyone around him.

    9
  25. Jen says:

    @James Joyner:

    The law in question allows him to attempt to prove that he acted in self-defense, which he almost certainly did.

    There is something tremendously wrong when a child proactively decides to take a weapon based on a design intended for military use across state lines, and then violates a curfew order, marching down the street with that weapon–taking it upon himself to police the streets. To absolutely no one’s surprise, he finds trouble, shoots two people dead, and we call that “self-defense.”

    He went looking to use that weapon. His crap decision-making cost two other human beings their lives, but we can’t call them victims?

    It’s wrong, no matter how you look at it. This ridiculous child should have been at home doing homework, not acting as a self-appointed police officer. The root of the bad decisions and everything that happened–the first step in the series–was his decision to do something he was not qualified for, nor asked, to do.

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  26. Jen says:

    @Modulo Myself: George Zimmerman killed Trayvon Martin. Martin was the victim.

    3
  27. HarvardLaw92 says:

    @James Joyner:

    Yes. Depending on the jury composition, it can work to the benefit of either side but probably mostly prosecutors in most cases.

    I wouldn’t say probably. I’d say definitely, which is all the more reason for carefully considering the value in retaining them. I’m torn, mostly because while I’d like to think that judges are sober, dispassionate people who will apply the law without deviation or bias, I realistically know that isn’t always the case. On the other hand, for a criminal conviction, the verdict must be unanimous. That offers the hope that one reasonable juror is all that is required to prevent a miscarriage by a jury otherwise determined to carry one out, but on the other hand it also means that one biased juror is all that is required to obstruct justice. There are no easy answers.

    2
  28. Monala says:

    @Jen: and he is, indeed, a horrible young man. There is video of him beating up a teenage girl from a few weeks before the shootings. In it, Rittenhouse is dressed exactly as he is in his publicized Facebook photos where he poses with his gun: black sweatshirt, red-white-and-blue shorts, and red-white-and-blue Crocs.

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  29. HarvardLaw92 says:

    @James Joyner:

    But I don’t see how that would get around the self-defense claim, which seems pretty strong to me.

    It wouldn’t get around it. I was speaking more to the impression that the prosecutors are swinging so hard for the fences that one could almost reasonably infer that charging him was to some degree a pro forma effort in the first place. I don’t believe that’s the case, but the charges here legitimately are reaching for the stars, and sometimes that can be as much as PR as it is about justice.

    1
  30. Stormy Dragon says:

    @James Joyner:

    First, they would almost certainly be convicted under those circumstances.

    Please explain why Rittenhouse shooting Kling is self-defense, but someone shooting Rittenhouse is “certainly” not?

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  31. James Joyner says:

    @Stormy Dragon: Kling is a defense attorney quoted in the piece, not one of the people shot. Regardless, here’s the summary from above:

    Rittenhouse hustled away. Soon a group of people began chasing him up Sheridan Road, shouting “Beat him up!” “Get him! Get that dude!” and “Get his ass!” according to the prosecution’s summary. One of the pursuers took a swing at Rittenhouse and knocked his ball cap off.

    Were those running after him simply trying to effect a citizen’s arrest in the belief that Rittenhouse had just committed a crime and might be a danger to others?

    “Whether or not the people chasing him thought they had the right to chase him is irrelevant,” said Richard Kling, a veteran Chicago defense attorney who teaches evidence and forensic science at Chicago-Kent College of Law.

    Rittenhouse stumbled and fell as he ran. One of his pursuers took a flying kick at his head and missed as Rittenhouse fired two errant shots from the ground. A second pursuer, Anthony Huber, 26, of Silver Lake, Wisconsin, swung a skateboard at Rittenhouse, hitting him on the shoulder, and grabbed and tried to hang onto Rittenhouse’s rifle. Rittenhouse shot Huber in the chest during that struggle, prosecutors said, killing him.

    He was being chased by an angry mob, and then was kicked, hit, and grabbed when he stumbled to the ground. Shooting to defend himself was perfectly justifiable—indeed, prudent—in that circumstance.

    Once again, he should never have been there illegally brandishing a firearm he had no right to possess. But it’s completely irrelevant to whether he acted in self-defense.

    1
  32. CSK says:

    @Monala:
    I wouldn’t put it past Rittenhouse, but Snopes seems to think this claim is unproven.

  33. Jen says:

    Once again, he should never have been there illegally brandishing a firearm he had no right to possess. But it’s completely irrelevant to whether he acted in self-defense.

    Yep, and that’s exactly what is so frustrating.

    He will likely face exactly zero consequences for allllllll of the stupid activity he engaged in that led to this. In fact, he’ll likely be feted by nitwits on the right for years to come.

    It’s sickening. It might be how our system works, but that doesn’t make this any less stomach-churning.

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  34. R. Dave says:

    Seems to me that the only way you get around his self-defense claim is using clause 2(c) of the quoted statute:

    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.

    The argument here would be that he went to the protest, gun in hand, with the intent to provoke an attack that would give him an excuse to shoot someone. I’m guessing the prosecution will be able to dig up various hyperbolic statements he’s made that indicate such an intent (or at least a fantasy/desire that the jury might interpret as intent). That said, I still don’t see them getting a conviction here.

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  35. KM says:

    @James Joyner:
    That *might* give him the self-defense justification for his second victim Huber but what about the first? The crowd went after him in after he shot somebody aka he attacked them and they were responding to a clear aggressor. The angry mob was in direct repsonse to his actions. Where’s their right to self-defense – does it go away if more then one person is too close to another? He was kicked and hit because he just shot at them @James, something that given our frequent experiences with mass shooters is a clear and obvious threat to life and safety. Who’s right to self-defense is more important or urgent – the armed person who just killed a man or the unarmed group of people trying to contain the threat and just saw one of them be taken out? In gun nut America, it’s the former it seems.

    This brat went looking for trouble, found it and panicked when it turns out the real world isn’t like Call of Duty. Two people are dead because he decided to go to another state, unasked and armed, looking to engage. He got his ass kicked and took two lives while LARPing his little alt-right fantasy.

    9
  36. HarvardLaw92 says:

    @KM:

    That *might* give him the self-defense justification for his second victim Huber but what about the first? The crowd went after him in after he shot somebody aka he attacked them and they were responding to a clear aggressor.

    Negative. The crowd was chasing him down the street as he was fleeing from a provocation they initiated. When he stumbled, one attempted to kick him in the head and the second attacked him with a skateboard. Presuming that both intended to harm him is a reasonable assumption. It is important to keep in mind that Rittenhouse, asshole that I agree he is, did not initiate direct confrontation. He was confronted and ran away.

    1
  37. wr says:

    @HarvardLaw92: So he just wandered into a demonstration with an assault rifle for… what? Fun? School credit?

    4
  38. wr says:

    @James Joyner: “The law in question allows him to attempt to prove that he acted in self-defense, which he almost certainly did.”

    Is it still “self-defense” if he deliberately put himself in a position where he knew he would have to kill someone to defend himself? If I strap on an assault rifle and go to a Klan meeting and start shouting “Black power” until some of the Klanners turn on me, can I kill them all and claim it was self-defense?

    3
  39. wr says:

    @James Joyner: ” Second, here’s a novel alternative: don’t chase down someone armed with an AR-15 who isn’t actually threatening you. It’s just a really, really stupid thing to do.”

    Because in America, you apparently have the right to kill anyone you want to, as long as you can pretend you were defending yourself — and you vote Republican.

    1
  40. HarvardLaw92 says:

    @wr:

    So he just wandered into a demonstration with an assault rifle for… what? Fun? School credit?

    There is probably an endless number of hypothetical suggestions that would answer that question. You’re jumping on the one that suits your narrative, and that’s fine. Just recognize it as being that. As I said earlier, should we assume that Grosskreutz went there to kill people as well, because that certainly changes the narrative as to why he got shot, no?

    You’re looking for good and evil in this scenario. What you really have is stupid and irrational, from everybody involved.

    3
  41. Scott F. says:

    @Jen:

    In fact, he’ll likely be feted by nitwits on the right for years to come.

    This is by far the bigger problem from my perspective. From other comments here, I’m confident Rittenhouse will be acquitted. But, more importantly, his militia fanboys will see Rittenhouse as vindicated with his bad behaviors justified.

    One teenager avoiding jail time pales in comparison to legal sanction being given to armed provocation during political protests. Every vigilante wannabe now has a playbook.

    4
  42. HarvardLaw92 says:

    @wr:

    Because in America, you apparently have the right to kill anyone you want to, as long as you can pretend you were defending yourself — and you vote Republican.

    When you’re on the ground, and you have one guy trying to kick you in the head while a second is beating you with a skateboard, it isn’t pretending. You act like these guys were just peacefully trying to give him some pamphlets about Amway.

  43. wr says:

    @HarvardLaw92: So if there’s someone stalking the halls of a high school with an automatic weapon, then if anyone tries to stop him from murdering children then he can kill whoever he wants and claim self-defense?

    3
  44. wr says:

    @HarvardLaw92: “You’re looking for good and evil in this scenario. What you really have is stupid and irrational, from everybody involved.”

    I kind of thought that a stupid and irrational act that costs two lives tends to be punished under our laws. Guess we’ve got a “get out of jail free” card for anyone who goes hunting libs.

    1
  45. James Joyner says:

    @wr:

    So he just wandered into a demonstration with an assault rifle for… what? Fun? School credit?

    Ostensibly, he was there, along with a lot of other folks, to help police guard property against looters and rioters. There was, you may recall, considerable looting, rioting, and property damage associated with the summer’s demonstrations.

    @wr:

    If I strap on an assault rifle and go to a Klan meeting and start shouting “Black power” until some of the Klanners turn on me, can I kill them all and claim it was self-defense?

    You have a free speech right to shout “Black power.” If Klansmen react to your speech with violence then, yes, you’re entitled to defend yourself. (And I strongly suspect most American juries would be far more sympathetic to you than to Rittenhouse, even given your much greater provocation.)

    @wr:

    Because in America, you apparently have the right to kill anyone you want to, as long as you can pretend you were defending yourself — and you vote Republican.

    Rittenhouse was genuinely defending himself and, at 17, had presumably never voted.

    4
  46. wr says:

    @HarvardLaw92: “When you’re on the ground, and you have one guy trying to kick you in the head while a second is beating you with a skateboard, it isn’t pretending. You act like these guys were just peacefully trying to give him some pamphlets about Amway.”

    “These guys” saw some creep armed with a semi-automatic rifle “patrolling” their demonstration. They believed he was there to do harm and tried to stop him. In any other circumstances we call people who lose their lives this way “heroes.”

    2
  47. HarvardLaw92 says:

    @wr:

    So if there’s someone stalking the halls of a high school with an automatic weapon, then if anyone tries to stop him from murdering children then he can kill whoever he wants and claim self-defense?

    Now you’re engaging in hyperbole. He wasn’t stalking the halls of a high school. He was standing on private property, by all accounts with his weapon shouldered, when trouble came to him. You’ve got to step away from this narrative you’re trying to create and focus on the facts.

    3
  48. HarvardLaw92 says:

    @wr:

    “These guys” saw some creep armed with a semi-automatic rifle “patrolling” their demonstration. They believed he was there to do harm and tried to stop him. In any other circumstances we call people who lose their lives this way “heroes.”

    With that doozie, I think we’re done here. Let me know when you’ve stopped writing the screenplay in your head and want to focus solely on the facts.

    3
  49. Just nutha ignint cracker says:

    @R. Dave:

    That said, I still don’t see them getting a conviction here.

    This is Wisconsin. Is it possible that the charges are simply performative and not intended to “get a conviction” but rather to look “tough on rioters/crime/civil disorder?”

  50. Just nutha ignint cracker says:

    @wr: Chances are good for you because you’re white, but no, no one (even here) is going to go to the mat claiming a self-defense right for Kwame Rittenhouse.

    1
  51. HarvardLaw92 says:

    @wr:

    “These guys” saw some creep armed with a semi-automatic rifle “patrolling” their demonstration. They believed he was there to do harm and tried to stop him. In any other circumstances we call people who lose their lives this way “heroes.”

    One last thing, though, to consider: When he ran away from them, wouldn’t it be reasonable to assume that they had stopped him from this “harm” they believed he intended to do and subsequently walked away? At that point, whatever fantasy of imminent danger they might have possess (in your narrative anyway) would have been nullified and they’d have had no cause to act at all.

    Because, let’s face it, someone who is running away from you isn’t someone the law is going to buy as being a threat to you.

    3
  52. gVOR08 says:

    What @OzarkHillbilly: said. This is mostly an essay on the failings of our legal system and laws. I try to be a Pragmatist. This whole business of pretending to divine his state of mind and degree of criminal intent a year after the fact is just ridiculous. Management classes teach that you reward or punish actions, not attitudes or thoughts. The questions before the court should be:
    – Did he do it?
    – Was he legitimately under threat?
    And the one the law doesn’t ask, famously of George Zimmerman,
    – Did he create the threat situation?

    This idiot will get off. DAs in politically sensitive cases have been known to deliberately overcharge to ensure acquittal. And a whole lot of assholes will take it as vindication.

    3
  53. Stormy Dragon says:

    @James Joyner:

    Sorry, got the names mixed up, let me change that to:

    Please explain why Rittenhouse shooting Gaige Grosskreutz is self-defense, but someone shooting Rittenhouse is “certainly” not?

    Grosskreutz was not threatening Rittenhouse, was backing away, and had their hands up in surrender, but Rittenhouse’s lawyer is arguing Grosskreutz merely being in possession of a gun at a time created enough reasonable fear to make shooting him self defense.

    Well Rittenhouse was also in possession of a gun, so it seems to me the same logic that justifies shooting the retreating Grosskreutz also justifies shooting the retreating Rittenhouse.

    3
  54. Modulo Myself says:

    Ostensibly, he was there, along with a lot of other folks, to help police guard property against looters and rioters. There was, you may recall, considerable looting, rioting, and property damage associated with the summer’s demonstrations.

    Yes, he and these other folks were part of a mob. A police officer with a gun and a random citizen with a gun (legal or not) are two different things. He went to this place to join a mob. That conservatives have tricked themselves into believing that random gun-toting citizens out to fight crime are part of the law or should be treated as such is remarkable.

    2
  55. R. Dave says:

    @wr: Seeming yes, according to this law, as long as that wasn’t your intent and you exhausted other reasonable options to protect yourself (or had none) when they attacked you. Honestly, I think that’s probably the right balance. Otherwise, you’re basically saying that anyone who wishes to protest against a group that’s prone to violence, or even to just defy the implicit threat from that group by doing something it doesn’t like, isn’t allowed to be prepared to defend themselves if that group attacks them in response. Hell, I’d go so far as to argue that it’s pretty damn close to saying a woman who wears “provocative” clothing when walking through a bad neighborhood isn’t allowed to carry a weapon to defend herself in case some dirtbag tries to rape her, because shooting her attacker in that case would be murder. Bottom line – I don’t think someone who reasonably anticipates being attacked for exercising their rights should be punished for being prepared to defend themselves absent evidence of an intent to provoke such an attack in the first place specifically so they can fight back with impunity.

    1
  56. HarvardLaw92 says:

    @Stormy Dragon:

    Grosskreutz was not threatening Rittenhouse, was backing away, and had their hands up in surrender

    Grosskreutz was part of the group that chased Rittenhouse after he’d ran away, which slots him into having initiated provocation (and arguably nullifies self-defense as an option for him).

    Rittenhouse was on the ground, having actually been attacked, and Grosskreutz still had a gun in his hand as well. See where this is going?

    1
  57. HarvardLaw92 says:

    @Modulo Myself:

    He went to this place to join a mob.

    That’s a presumption predicated on a biased interpretation of motives. Following your reasoning, is it any more unreasonable to say that Rosenbaum, Huber, and Grosskreutz went there to join a mob as well? (The point is that they’re probably both unreasonable assumptions.)

    In any case, Rittenhouse wasn’t a mob. He was being chased by a mob.

    3
  58. Roger says:

    @HarvardLaw92:

    They’ll essentially have to prove that we went to Kenosha having already made the decision to kill and deliberated on how planned how he intended to do so.

    I practice in Missouri and Kansas, so I don’t claim to know how deliberation works in Wisconsin, but that is a wildly inaccurate statement of the evidence necessary to prove deliberation anywhere I’m familiar with. In Missouri, for example, our juries are instructed that deliberation means “cool reflection upon the matter for any length of time no matter how brief.” Cases are legion affirming convictions of people who didn’t do any of the things we normally associate with premeditation. Is there a reason you think the law on that is different in Wisconsin?

    Which is not to say that I think he’ll be convicted of murder. I don’t. If you made me place a bet, I’d bet on not guilty of all homicide charges, guilty of minor in possession of a firearm, and maybe guilty of reckless endangerment.

    2
  59. Jen says:

    Ostensibly, he was there, along with a lot of other folks, to help police guard property against looters and rioters.

    1.) “Along with a lot of other folks…” As my mom always said, just because others are doing something dumb doesn’t mean you have to join in. In fact, it probably means you shouldn’t.

    2.) A 17 year old is not trained to protect public property and this one clearly doesn’t have the maturity or judgment to make good decisions.

    3.) There was an active curfew order that he was in violation of, just by being out.

    He should NOT have been there, full stop. That others were doesn’t make this okay. And, had he not been there, two other humans might have been alive today.

  60. KM says:

    @HarvardLaw92:
    While hyperbole, it’s still worth an answer. Schools are private property, especially a private or charter school. Rittenhouse could have easily staked out somewhere else to “defend”.

    Let’s say there’s unrest about and school’s still got kids inside, possibly for their own safety. If some stranger came in armed but holstered they would be considered a potential threat. This person is not invited and likely trespassing; they are only there because they think they’re defending the kids for some reason. Maybe they think the teachers are antifa or QAnon’s latest boogeyman or just thinks the kids need their protection unasked. If a bunch of angry parents and teachers confronted this armed stranger and it gets heated; a confrontation happens and a parent is killed. The crowd then goes after the shooter to protect themselves and the kids so he retreats, firing in the approaching crowd in “self-defense”. In this scenario, does that person have the right to claim self-defense? Are the parents in the right?

  61. Jen says:

    @HarvardLaw92:

    In any case, Rittenhouse wasn’t a mob. He was being chased by a mob.

    Both. He was both part of a mob (the uninvited troop of vigilantes there to protect property) and chased by a mob.

    Rittenhouse should. not. have. been. there. He is a 17 year old wannabe Kid Kop who made a lot of dumb decisions and now two people are dead.

    He is NOT THE VICTIM HERE.

    1
  62. James Joyner says:

    @Modulo Myself: @Jen: I’m not a fan of vigilantes, however well-intentioned, showing up with guns to impose their vision of law and order. As I noted in the OP and umpteen times in the comments, Rittenhouse (and others) should have been arrested for violation of the curfew, weapons charges, etc. Police were clearly flouting their duty for ideological/team/identity reasons here.

    My assessment here is of 1) the conduct of the judge in these pretrial rulings and 2) the likelihood of conviction of first-degree murder under the circumstances.

    2
  63. James Joyner says:

    @Jen:

    He is a 17 year old wannabe Kid Kop who made a lot of dumb decisions and now two people are dead.

    He is NOT THE VICTIM HERE.

    Both things can be true. He was chased and attacked by a mob, resulting in their death when he acted in reasonable self-defense.

    2
  64. HarvardLaw92 says:

    @Roger:

    Hence the essentially. I try to avoid falling into legal writing here. Premeditation as a required element of the offense. It seems pretty clear to me that he was acting under duress in the presence of a legitimate threat to his safety after having attempted to flee as required by WI law. You know what duress does to premeditation. His attorneys will almost certainly introduce that premise to attack the cited charge.

    I’m also seeing no real basis for RE either. From my read of the timeline of events, Rittenhouse didn’t engage until after having actively been attacked by Huber and Rosenbaum. The MIP charge is a possibility, agreed, although the penalties for that under WI law are minimal to begin with and they’d certainly get pretrial confinement included, were any active sentence to even be imposed to begin with.

  65. R. Dave says:

    @wr (excerpted from multiple comments):So if there’s someone stalking the halls of a high school with an automatic weapon, then if anyone tries to stop him from murdering children then he can kill whoever he wants and claim self-defense?

    I kind of thought that a stupid and irrational act that costs two lives tends to be punished under our laws. Guess we’ve got a “get out of jail free” card for anyone who goes hunting libs.

    “These guys” saw some creep armed with a semi-automatic rifle “patrolling” their demonstration. They believed he was there to do harm and tried to stop him. In any other circumstances we call people who lose their lives this way “heroes.”

    You seem to be making the case for why the people who attacked Rittenhouse would have been entitled to a claim of self-defense themselves based on the perceived threat Rittenhouse posed, and then implicitly presuming that if they were legally acting in self-defense by attacking him, then he couldn’t be legally acting in self-defense by responding with his own use of force. I don’t think that logic holds, though. It’s entirely possible for both participants in a situation like this to wrongly, but reasonably, conclude that the other one is trying to attack them and respond accordingly in self-defense.

    Indeed, that’s why I tend to think that even though concealed carry should be allowed on 2nd Amendment / right to self-defense grounds, open-carry should be prohibited outside of certain specific situations (e.g., hunting) due to the obvious risk of mistaken intentions and heightened chance of conflict/violence.

    3
  66. HarvardLaw92 says:

    @Jen:

    Both. He was both part of a mob (the uninvited troop of vigilantes there to protect property) and chased by a mob.

    Rittenhouse ran away. From the viewpoint of the law, that pretty much ends the discussion with regard to him being a threat.

    Rittenhouse should. not. have. been. there. He is a 17 year old wannabe Kid Kop who made a lot of dumb decisions and now two people are dead.

    None of them should have been there. The difference is that Rittenhouse wasn’t the physical aggressor, and he responded to aggression in the manner required by law. He ran away. He didn’t unshoulder his weapon on the spot and attempt to shoot anyone. He ran away. At that point, in deciding to give chase, and later in attempting to do violence to him as he was incapacitated, Rosenbaum, Huber, and Grosskreutz become the bad guys, sorry. As I said earlier, at that point they should simply have walked away. They weren’t under threat and weren’t in danger. They should have walked away, and didn’t. They’re not the victims here.

    2
  67. Just Another Ex-Republican says:

    @Stormy Dragon:

    Please explain why Rittenhouse shooting Gaige Grosskreutz is self-defense, but someone shooting Rittenhouse is “certainly” not?

    Had Grosskreutz shot Rittenhouse, his lawyers absolutely WOULD be claiming self-defense. And with less justification–the chasing down is critical context here.

    Two people brought guns to an event with strong (and opposite) political beliefs. They were both idiots. Unfortunately we live in a country that fetishizes guns and has serious (and very real) issues with the police not protecting all citizens equally, a media that dramatizes conflict so somehow BOTH sides think the cops aren’t protecting “them”. Remember, no one is “the bad guy” in their own mind/story, and both Grosskreutz and Rittenhouse felt they were completely justified in going armed for self-defense.

    Sometimes I think the most surprising thing is that casualty counts out of the demonstrations last year weren’t higher.

    In the end, I see a cultural problem and an incompetent (at best) prosecutor. First-degree murder seems like an aggressive overcharge. It’s…interesting (I guess that’s the word) to look at this in the context of the Rust shooting. I think Rittenhouse (and Grosskreutz) were clearly criminally negligent (and stupid) in putting themselves into that situation with those weapons. But instead of going after the negligence behind Rittenhouse’s action (Kyle’s, his moms, and the media circus), the prosecutor went for a nearly impossible to prove in this situation 1st degree murder. Heaven forbid someone be prosecuted for bringing an AR-15 to a dangerous situation. Whether the prosecutor didn’t really wanted to charge anything so went ridiculously over the top, doesn’t know what he is doing, or felt peer/public pressure to go beyond what the actions indicate I don’t know. But yeah, not only is he going to walk, he’s going to be seen by the fringe as vindicated and justified. Making a repeat of this somewhere else even more likely.

  68. HarvardLaw92 says:

    @KM:

    To the best I can tell, Rittenhouse was on the car lot property with the understanding and consent of its owner. Beyond having a weapon he legally shouldn’t have had, he was entirely within his rights to be where he was. As has been repeated ad nauseum above, Rittenhouse didn’t confront. He was confronted. When so confronted, he acted as the law requires – he ran away. He didn’t initiate the use of force until he was effectively cornered with no further means of escape and was actively being attacked by the people he sought to evade.

    Please, ftlog, identify to me how Rittenhouse is the aggressor in this situation?

    1
  69. KM says:

    @James Joyner:

    My assessment here is of 1) the conduct of the judge in these pretrial rulings

    To circle back to this, it’s absolutely stacking the deck in favor of the defense by allowing loaded language. The fact they’re white is irrelevant to the bias – it’s you can’t prove the were doing that. Unfounded assumption that directly ties to the false narrative as he could have claimed anyone was a “looter” or “rioter” to shoot them regardless of their actions and the supposed threat they caused. By not allowing the victims of a shooting (legit or not) be described as such but to use words like “looter” to someone who has NOT been proven to have done so is tilting the scales firmly in one direction. Why is it OK to call Joseph Rosenbaum and Anthony Huber “looters”? Based on what logic? Oh yes, it’s to imply that’s what they were doing and thus it was OK to shoot them. Nevermind it wasn’t Rittenhouse’s legal right to do anything bout it even if they were, its smearing the victims while giving their killer an unearned boom. If both were disallowed to both sides, fine as both are at a disadvantage but this is clearly a gift to the killer.

    2
  70. Mu Yixiao says:

    @HarvardLaw92:

    after having attempted to flee as required by WI law.

    Wisconsin doesn’t have a duty to retreat.

  71. HarvardLaw92 says:

    @Mu Yixiao:

    Fair enough. I’m not admitted in Wisconsin. Mea culpa.

    That having been said, whether the opportunity to retreat was available but not pursued goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person, and juries weighing self-defense in WI are instructed to consider the failure to do so. Statutory requirement or not, his flight from the aggressors absolutely reinforces his assertion of the affirmative defense.

    1
  72. KM says:

    @HarvardLaw92:
    Rittenhouse was not on the car lot property when the sequence began. To the best of my knowledge, it began at a gas station so he left the private property he was theoretically allowed to be on. His own defense attorney’s place him there where the first confrontation with Rosenbaum took place. So that’s out – he wasn’t where he was supposed to be and wasn’t defending the property that was ostensibly why he was there. We have only his word he was confronted and was not the one who started the argument. We *do* know, however, that he left to go there meaning he was likely approaching people already present and confronted them due the fire.

    It’s not recorded from the start so there’s no proof of who began it but Rittenhouse claimed he went there to put out a fire. Argument occurs and “something” (possibly plastic bag) is thrown in Rittenhouse’s direction and Rittenhouse hears gunshots from afar. He likely assumed he was being fired at and had his weapon out on camera; unfortunately Rosenbaum likely assumed the same. When Rosenbaum tried to defend himself from the visible armed man who would have been assumed to have fired the shots, Rittenhouse shoots him.

    Now – both made assumptions based on the heard shot. Why wasn’t Rosenbaum- when confronted with an armed man in a heated situation and hearing a shot – not be in the right to defend himself and disarmed the supposed shooter? He would have thought he was being attacked. In this case, it’s eminently reasonable by Rosenbaum to assume the source of the shots was Rittenhouse and thus causing the confrontation. Since self-defense is also about the perception of threat, why isn’t this fact being counted against Rittenhouse? As many pointed out, being armed and out when audible gunshots can be heard makes you the “bad guy with the gun” in every right wing scenario. They were wrong about who shot but in the heat of the moment, their assumption was reasonable and they reached appropriately. Many, many people have used “feared for my life” before but for some reason, these two libs aren’t getting the benefit of the doubt with that. Wonder why?

  73. Mu Yixiao says:

    @HarvardLaw92:

    I agree with everything you’ve been saying. I just wanted to point out that one technical issue. Which, possibly, strengthens his case–he was not required to retreat/flee, but he did so anyway.

    1
  74. James Joyner says:

    @KM:

    If both were disallowed to both sides, fine as both are at a disadvantage but this is clearly a gift to the killer.

    That was my reaction when I saw the headline and read the first few paragraphs. But the judge’s explanation made sense to me:

    Circuit Judge Bruce Schroeder cautioned the defense team against using pejorative terms during opening statements, but he said they could use them in their closing arguments if the evidence suggested the men engaged in criminal acts.

    He’s saying that, if the defense can demonstrate that the men shot were rioters and/or looters, they could be described as such in closing arguments. And, aside from it being perfectly reasonable for the defense to be granted more leeway than the state, it seems that Schroeder simply has a thing about the word “victim” and routinely bans its use in his courtroom.

    @KM:

    Many, many people have used “feared for my life” before but for some reason, these two libs aren’t getting the benefit of the doubt with that. Wonder why?

    Because they’re not charged with multiple felonies and at jeopardy of spending their lives in prison?

    2
  75. HarvardLaw92 says:

    @KM:

    11:48 p.m.: 1st shooting

    The gunshots heard accounted for the first shooting of the night, at the Bert and Rudy’s auto service shop at 6279 Sheridan Road near 63rd Street.

    In a separate video that captured the incident, Rittenhouse can be seen running across the lot of the auto shop. A person with a red shirt around his neck appears to be chasing him.

    After about 30 seconds, protesters can be heard screaming about a shooting, and Rittenhouse is seen appearing to make a phone call before running away. In the background, someone can be heard saying, “I shot somebody.”

    The person recording the video then gets closer to the man who had been shot, capturing a graphic view of what appears to be the victim, who was the person chasing after Rittenhouse, bleeding from a gunshot wound to the head.

    11:49 p.m.: 2nd shooting

    Just a minute later, a second shooting is caught on video.

    Rittenhouse is seen running in the middle of the street as a number of people attack him. He falls to the ground and is seen firing a number of shots, which strike at least two people.

    One person is seen struck in the arm, while the other is seen lying motionless in the street.

    So …

    First shooting, Rosenbaum is chasing Rittenhouse on the car lot property. Rittenhouse is running away from him / attempting to escape. Rosenbaum is trespassing, Rittenhouse is not. Rosenbaum is the aggressor.

    Rittenhouse runs away, and is chased by a group of people attacking him. He’s being chased and attacked as he tries to run away from them. Second shootings take place. They’re the aggressors.

    Where is the rationale for saying that Rittenhouse caused any of this?

    2
  76. de stijl says:

    I mourn for us that this happened at all.

    We are extremely fucked up as a culture.

    Seemingly incapable of backing down. Too many of us have an excess of pride.

    Dude killed two people because he went there on purpose and he was fucking dying to do it. He got his wish. He will likely get away with premeditated murder because we are just that fucked up as a society.

    2
  77. HarvardLaw92 says:

    @Mu Yixiao:

    No worries at all. I appreciate the clarification. It’s one of the inherent dangers about wandering into making authoritative comments without having the time to pull the Wisconsin Annotated Code and do the requisite research as would be required. The assertion should have been qualified regarding lack of direct expertise regarding Wisconsin law and the error was entirely mine.

    I’ll agree though – I also believe it significantly strengthens his assertion of the defense.

    2
  78. KM says:

    @James Joyner:

    Because they’re not charged with multiple felonies and at jeopardy of spending their lives in prison?

    Ummm… many of them either dodged charges entirely using that logic or were successfully in not being convicted using it. I’d toss a Google list of cops alone but don’t want to get any more depressed today.

    Look, I get it. Kid’s looking at life in jail. He did something and now is trying to use the legal loophole called self-defense to explain it away. That’s his right and ours is to ensure a fair and just process to let him have his say. Like it or not, you are correct in that the defense should have more leeway then prosecution and that we should lean more towards the guilty walking then the innocent imprisoned.

    However, please don’t try to invoke sympathy with “he’ll waste away life in jail”. That’s solely on him. Two people are in coffins right now and will never get a second of their life back because of the utterly poor choices this kid made. Meanwhile, if he gets out he’s on wingnut welfare for life and will likely profit off their deaths for decades to come. Didn’t wanna spend time in jail? Shoulda stayed home that night instead of crossing state lines to insert yourself into a mess. Don’t do the crime if you can’t do the time, Kyle…. and it’s only not a crime if you can convince enough jurors of the sob story.

    1
  79. KM says:

    @HarvardLaw92:

    As I said, that’s the recorded part of it. Rittenhouse and his lawyers have said it started at the gas station fire, though. I believe there’s a separate video collaborating this but it’s unconfirmed who the young man in the video is at this time. You are basing everything solely on the recorded evidence and not what proceeded it, including the accused own testimony. The fire is the whole reason Rosenbaum and Rittenhouse began their interaction in his own words.

    What – are you claiming a random mob just started screaming “Get him!!!” at the first person they saw for some reason? Why – they want a blood sacrifice or something? Did it never occur to you to wonder WTF caused them to scream “Get him” in the first place? There was clearly something that happened prior to the recording and that’s where we should start recounting. Again, selective framing only benefits the accused when leaving out vital details – like if it started when he left property – paints those who could very well have be in the right to defend themselves as unthinking mob violence.

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  80. HarvardLaw92 says:

    @KM:

    Two people are in coffins right now and will never get a second of their life back because of the utterly poor choices this kid made.

    Again, no. A group of people including Rosenbaum chased Rittenhouse. Rittenhouse attempted to flee from them.

    Crowd chased Rittenhouse. Rittenhouse is running away. Crowd is attacking Rittenhouse, he isn’t attacking them. Rittenhouse falls, is therefore unable to further flee from the crowd, he’s being attacked, has a reasonable basis for believing himself to be in danger, and responds.

    At every stage, Rittenhouse’s response to confrontation is to flee, until he is ultimately unable to flee any farther.

    Two people are in coffins now and will never get a second of their lives back, and a third has grievous wounds, because of the utterly poor choices they made.

    3
  81. HarvardLaw92 says:

    @KM:

    The fire is the whole reason Rosenbaum and Rittenhouse began their interaction in his own words.

    Show me where those words indicate that Rittenhouse was the initial aggressor please. That said, Rittenhouse ran away. They were chasing him prior to the first shooting.

    What – are you claiming a random mob just started screaming “Get him!!!” at the first person they saw for some reason? Why – they want a blood sacrifice or something? Did it never occur to you to wonder WTF caused them to scream “Get him” in the first place? There was clearly something that happened prior to the recording and that’s where we should start recounting. Again, selective framing only benefits the accused when leaving out vital details – like if it started when he left property – paints those who could very well have be in the right to defend themselves as unthinking mob violence.

    He’s running away from them. What are they defending themselves from ? Certainly you aren’t espousing or attempting to rationalize vigilante justice? At least I hope not.

    Again, I consistently see Rittenhouse fleeing from other people. I have yet to see a single instance where they are fleeing from him, which is a tad odd given that he was armed (a fact which they were imminently aware of and yet still gave chase / attacked). It’s pretty damning.

    2
  82. KM says:

    @HarvardLaw92:
    Wrong – first shots heard were from a third party Joshua Ziminski who fired a warning shot into the air (or so he claimed). That was the first noise and what prompted Rittenhouse to turn around and confront Rosenbaum. That’s when Rosenbaum tried to take the rifle and got shot. That’s the first video you’re referring to with the proper context in place. There was already a heard shot before Rittenhouse fired and that’s when it racketed up. Rosenbaum thought Ziminski’s warning shot was Rittenhouse and reacted; Rittenhouse thought he was being charged by someone, possibly thinking they might be armed and shooting as well. It went bad because *BOTH* of them thought they were acting in self-defense over a gunshot.

    You seem to be under the impression he was just being chased out of bloody nowhere for no reason other then to hunt him down. A crowd just randomly appeared, singled this one kid out and attacked him for kicks. The video is the whole sum total of his existence and nothing he did prior to that could have possibly lead to what was on screen. Ignore what the accused has said, ignore whatever evidence we have that he went with the intent to shoot and broke multiple laws to go out of his way to have the chance.

    Yes he was retreating. As I said, Huber the second victim, could be listed under self-defense in that scenario. However, his first victim was because he was walking around with a weapon not at the gas station, got into an argument with someone, a shot was heard and the logical conclusion that it was him prompted Rosenbaum to act. Rosenbaum didn’t just pick a fight with him for no reason – he was under the impression he was dealing with an active shooter.

  83. Kathy says:

    There should be some distinction in the law regarding people who go looking for a confrontation, then claim self-defense if things get violent.

    3
  84. KM says:

    @KM:
    Ugh edit button – amend last statement above to “at the gas station”. That’s why he was seen running across the auto place – he started out somewhere else. Kind of a duh moment but clearly needs to be stated. If he was retreating across the auto yard, he was not there when it began.

    I have yet to see a single instance where they are fleeing from him, which is a tad odd given that he was armed (a fact which they were imminently aware of and yet still gave chase / attacked). It’s pretty damning.

    Maybe because years of active shooter drills, mass shootings and other gun violence have taught us that we should do something about the shooter instead of letting him keep going. In fact, taking down the shooter is a whole school of thought and training you don’t know people in the crowd might have had. Think about it – what evidence did that have he wasn’t going to keep firing? Does the crowd know what happened or did they just hear someone was killed? They don’t know him – they just see guy with a gun. This is America @HL92 – how likely is it that would have been a one and done?

  85. Monala says:

    @CSK: yeah, the guy in the video is just a similar height and build, similar hair, and the same outfit as Rittenhouse, but it might not be him…

  86. Stormy Dragon says:

    @Kathy:

    There should be some distinction in the law regarding people who go looking for a confrontation, then claim self-defense if things get violent.

    There was. Getting rid of that distinction was what “stand your ground” laws were really about.

    2
  87. EddieInCA says:

    @HarvardLaw92:

    Because, let’s face it, someone who is running away from you isn’t someone the law is going to buy as being a threat to you.

    Laquan McDonald, Andrew Brown, Jr, and Walter Scott would like to have a word with you.

    Oh, they can’t. They’re dead after being shot in the back.

    6
  88. R. Dave says:

    @HarvardLaw92: Rittenhouse ran away. From the viewpoint of the law, that pretty much ends the discussion with regard to him being a threat.

    @KM: Maybe because years of active shooter drills, mass shootings and other gun violence have taught us that we should do something about the shooter instead of letting him keep going. In fact, taking down the shooter is a whole school of thought and training you don’t know people in the crowd might have had. Think about it – what evidence did that have he wasn’t going to keep firing? Does the crowd know what happened or did they just hear someone was killed? They don’t know him – they just see guy with a gun. This is America @HL92 – how likely is it that would have been a one and done?

    I think this is another example of what I pointed out re WR’s comments – I think the reasonableness of perceiving a threat from Rittenhouse goes to establishing whether the people who attacked him would have been entitled to claim self-defense for their actions, not whether Rittenhouse himself is entitled to such a claim with respect to his actions.

    1
  89. wr says:

    @HarvardLaw92: “You act like these guys were just peacefully trying to give him some pamphlets about Amway.”

    Yes. Before he started killing people with the semi-automatic rifle he brought with him.

  90. wr says:

    @James Joyner: “Police were clearly flouting their duty for ideological/team/identity reasons here.”

    Yup. And now the courts are going to do the same.

    1
  91. wr says:

    @HarvardLaw92: “Where is the rationale for saying that Rittenhouse caused any of this?”

    He acquired a weapon he was not legally allowed to possess. He then crossed state lines to wave that around at complete strangers.

    Had he died, he would be an object of pity. Just another loser gunfreak brought down by his Wild West fantasies.

    But he didn’t die. He killed a couple of people. Because he was stupid and negligent and arrogant.

    And he’ll get off, and he can go an be a hero to the mouth-breathers. Justice in America is served.

    2
  92. Jen says:

    @Kathy: Exactly.

    From where I’m sitting–which I fully acknowledge isn’t how the legal system will view this–the moment Rittenhouse decided to leave his home in IL was the moment his bad choices started.

    He decided he wanted to play Cops-n-robbers and sh!t got real.

    There will always be idiots like this, unfortunately. My concern is that this is the same vigilante “take things into my own hands” nonsense that got Trayvon Martin killed.

    3
  93. wr says:

    @HarvardLaw92: “At every stage, Rittenhouse’s response to confrontation is to flee,”

    At every stage, that is, except for the one where he illegally obtained a gun and crossed lines to find confrontation.

    2
  94. KM says:

    @Jen: @wr:

    While I agree in spirit and outrage, in more practical terms the poor choices we are concerned about for the incident start with the choice to leave the auto yard and go to the gas station to – as he claims – deal with the fire. By choosing to leave the property and engage the group of people there, he deliberately involved himself in a situation.

    He wasn’t standing around and they came to him – he went somewhere they already were. He’s on the move and it’s his choices to go there and do something that lead to the initial confrontations and subsequent events. Had he stayed put at the service center, this wouldn’t have happened. Had he stayed to do what he ostensibly said he was there for – protect the business – he wouldn’t have come into contact with either individual. He was observed be at Car Source (5821 Sheridan Rd, several blocks up from the location @HL92 noted) minutes before the shooting; as that location is closed to the gas station where the fire supposedly was, it’s obvious he was out and moving, not staying put to “protect”. If he was actively “patrolling” more then just the location of where he was supposedly invited to watch, then he was out looking for trouble.

    Acting like the crowd just came for him unprovoked is BS. Hell, acting like the crowd came for him at all is BS. He was out and found them.

    3
  95. senyordave says:

    Will the prosecution be allowed to refer to Rosenbaum, Huber and Grosskreutz as people? Do they even qualify as human beings according to this judge? Or would he be afraid of being overturned?

  96. James Joyner says:

    @senyordave: I gather from some sources not in the OP but cited in comments upthread that the judge has a particular and longstanding aversion to ‘victim’ as prejudicial language. It’s not something limited to this case.

  97. Kathy says:

    @Jen:

    The Martin murder was much clearer. Zimmerman was on the phone with 911, reporting this kid carrying candy, and was advised not to confront him. He ignored this and went looking for a confrontation. He shouldn’t have been acquitted solely on that account.

    1
  98. senyordave says:

    @James Joyner: Obviously the two dead men were not arrested or convicted of any crime, but Grosskreutz also was not arrested or convicted of rioting and/or looting. Yet the judge has basically given the okay for the defense to portray the three men as rioter and/or looters. Why should the defense be given such a wide berth? It will be interesting to see hw the judge acts during the trial, he certainly seems to have stacked the deck against the prosecution before the trial even began.

  99. Jen says:

    @Kathy: Agreed. I’m more thinking of the eventual ramifications…the reinforcement of a mindset that general members of the public can act “in loco magistratus,” as it were.

    I do not approve of vigilantism, and I certainly don’t approve of it from 17-year-old boys. I don’t want to see a desire for order (which I share) morph into a mindset that it’s okay to play pretend cop as long as you think you’re helping. There are just too many people who have a nasty streak in them and they don’t deserve to be empowered. Cases like this bolster their nonsense.

    1
  100. Kurtz says:

    @HarvardLaw92:

    There is probably an endless number of hypothetical suggestions that would answer that question. You’re jumping on the one that suits your narrative, and that’s fine. Just recognize it as being that. As I said earlier, should we assume that Grosskreutz went there to kill people as well, because that certainly changes the narrative as to why he got shot, no?

    This.

    You’re looking for good and evil in this scenario. What you really have is stupid and irrational, from everybody involved.

    And that.

    I just watched the Vice Investigates episode about gun culture.

    This is one of the outcomes of a culture of paranoia codified with poorly conceived law.