The jury’s task in the Kyle Rittenhouse case was a daunting one. Just minutes ago, it reached a verdict on all counts, including lesser included offenses: not guilty.
Rittenhouse was on trial in Wisconsin’s Kenosha County Circuit Court for shooting three people during protests in August, killing two — Joseph Rosenbaum, who died first and, moments later, Anthony Huber. Rittenhouse, who was 17 years old at the time of the killings, faced five felony counts, including first-degree intentional homicide for Huber. (The protests were prompted by the police shooting of Jacob Blake, a Black man who was shot seven times in the back on video during an attempt to detain him, leaving him paralyzed from the waist down. The officers were not charged with any misconduct.)
Although it will take some time to disentangle the legal, factual and strategic nuances that may have contributed to the result, part of the problem lies in the law itself. The jury apparently concluded that killing unarmed folks with an AR-15 in “self-defense” is acceptable as ubiquitous guns are acceptable in much of America, including Wisconsin.
There was no dispute that Rittenhouse shot and killed Rosenbaum and Huber. The case instead boiled down to two concepts under Wisconsin law: self-defense and provocation. Did Rittenhouse act in self-defense? And did he provoke Rosenbaum and Huber in the first place? If Rittenhouse provoked the victims, then his self-defense claim only worked if he resorted to killing as a last resort.
Here’s the other complicating factor: Wisconsin is a so-called “open carry” state when it comes to civilian firearms. The text of its disorderly conduct law criminally bans “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.” But absent a showing of “criminal or malicious intent,” a person may not be charged with disorderly conduct “for carrying or going armed with a firearm . . . without regard to whether the firearm is loaded or the firearm . . . is concealed or openly carried.”
Think about that. Being publicly “violent” or “abusive” is a potential crime in Wisconsin — unless it entails waiving around a loaded firearm.
Consider, by contrast, Wisconsin’s self-defense law. The judge instructed the jury that if it can find that Rittenhouse was authorized to “threaten or intentionally use force against another only if” three elements are present: (1) he “believed that there was an actual or imminent unlawful interference with the defendant’s person;” (2) he believed “that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and” (3) “the defendant’s beliefs were reasonable.” In other words, Rittenhouse was legally allowed to use reasonable force to protect himself against actual or imminent harm. Given the alleged threats he was facing, does that mean that his killings with a semi-automatic AR-15 rifle were reasonable? The jury concluded yes.
According to the trial evidence, Rittenhouse’s self-defense claim seemed substantially different between Rosenbaum and Huber. Rosenbaum, who had recently been released from mental health treatment in Milwaukee after an attempted suicide, was seen on video throwing a plastic bag at Rittenhouse while chasing him. Rosenbaum’s fiancé testified that the two were living in a motel at the time and the bag contained personal care items like socks and toothpaste. Rittenhouse subsequently shot Rosenbaum four times — twice in the front, once in the back and once along the side of his head, killing him.
Rittenhouse’s lawyers argued that he feared for his life. He testified that he knew Rosenbaum was unarmed and pointed the gun at him to deter him. Rittenhouse left Rosenbaum dead on the ground and fled with his AR-15 strapped to him, reporting to someone on his cell phone, “I just killed somebody.”
That’s where Huber came in. His girlfriend testified that Huber saw Rittenhouse carrying the AR-15 and ran toward the danger to deescalate the situation. Video shows him appearing to reach for Rittenhouse’s firearm while holding his skateboard. That’s when Rittenhouse shot Huber. Rittenhouse testified that Huber was “holding a skateboard like a baseball bat.”
A third victim, Gaige Grosskreutz, was the only one who was armed, and the only survivor. He testified that he believed Rittenhouse was an active shooter. After Huber was shot, Grosskreutz — a paramedic — saw Rittenhouse rerack his firearm, and testified that “Reracking the weapon in my mind meant that the defendant pulled the trigger while my hands were in the air, but the gun didn’t fire, so by reracking the weapon I inferred the defendant wasn't accepting my surrender.” Grosskreutz testified that he drew his pistol but, unlike Rittenhouse, he didn’t pull the trigger. A video appears to show Grosskreutz retreating when Rittenhouse aimed his gun and shot him from a few feet away, severing his bicep.
“I’m missing 90 percent of my bicep,” he later said. “This has not been easy emotionally, physically. I’m in constant pain, like excruciating pain that just doesn't go away — both in my arm, in my heart.”
The jury essentially had to decide whether the plastic bag and the skateboard were sufficiently threatening to Rittenhouse’s safety to justify his use of deadly force, that “the amount of force the defendant used or threatened to use” — that is, an AR-15 to cause two deaths — “was necessary to prevent or terminate the interference,” and that Rittenhouse’s belief was reasonable.
As George Washington University Law School Professor Cynthia Lee explained in Politico, even if Rittenhouse was justified in using force, if he provoked the decedents’ use of the plastic bag and the skateboard in the first place, he could have lost that defense under Wisconsin law. For Huber, the provocation — or the argument that Rittenhouse was the “initial aggressor” — was arguably stronger than for Rosenbaum. After all, Grosskreutz testified that he believed after Rosenbaum’s killing that Rittenhouse was an active shooter. That sure sounds like provocation.
On provocation, the jury was further instructed that: “You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack.”
As Lee points out, the judge had already tossed out an unlawful weapons possession charge and a violation of curfew charge against Rittenhouse. And “unlawful conduct” in Wisconsin does not include carrying open or concealed firearms under its disorderly conduct law.
On the day Rittenhouse killed Rosenbaum and Huber, there were many militia-like civilians with firearms roaming the streets of Kenosha, claiming their intent was keeping order. Grosskreutz himself stated, “I believe in the Second Amendment. I am for people’s right to carry and bear arms. And that night was no different than any other day. It’s keys, phone, wallet, gun.”
But a plastic bag and skateboard are no match for an AR-15. Wisconsin’s criminal laws don’t seem to adequately calibrate the right to carry concealed or open firearms and the right to self-defense. Two people paid the ultimate price for this disparity, and now it was a jury of Rittenhouse’s peers — rather than a legislature — that made the call for the rest of us.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of "How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle