In Self Defense – Episode 67: Kyle Rittenhouse Pt. 1

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In Self Defense – Episode 67: Kyle Rittenhouse Pt. 1

Steve Moses joins Don West and Shawn Vincent to cut through the politics surrounding the controversial Kyle Rittenhouse case and focus on the tactical and legal considerations associated with this well-documented shooting. 

TRANSCRIPT:

Shawn Vincent:

Hey everybody, it’s Shawn Vincent. Thanks for listening in. Today, we’re going to tackle the Kyle Rittenhouse case. I’m practically certain that you’re heard about this case. This is the story of 17-year-old Kyle Rittenhouse, who . . . in the wake of the Jacob Blake shooting in Kenosha, Wisconsin, there were protests. There were riots. There was looting. There were fires. Kyle Rittenhouse decided to go from his home in Illinois, across the border to Kenosha, Wisconsin to stand guard in the effort to protect some businesses that had been victim of the rioting the night before.

Shawn Vincent:

Things go badly for Kyle. I think it was fair to say that he was attacked. He defends himself with deadly force, and then the crowd turns on him, and he flees. In the process, after being attacked again by multiple assailants, he shoots two more people, killing one. Much of this was captured on cellphone footage. There were reporters in the area. There were photographs taken of this incident.

Shawn Vincent:

I sit down with Don West. He’s National Trial Counsel for CCW Safe, and an experienced criminal defense attorney, and our friend, Steve Moses, who’s a veteran of law enforcement, and a well-regarded firearms instructor. We’re going to look at this case from a tactical point-of-view. We’re going to look at it from a legal point-of-view, now that Rittenhouse has been charged with multiple serious crimes, and I think what’s going to be important to remember here is there are a lot of politics surrounding this case.

Shawn Vincent:

A lot of people have very strong feelings about Rittenhouse’s behavior on both sides of the political spectrum. We’re going to do our best to navigate around the politics, and we’re going to look specifically at Rittenhouse’s actions in the moment to determine whether we believe, with the facts that we know, whether they were justified or not. But that said too, I think there’s a conversation to be had about what a concealed carrier’s responsibility is when it comes to putting themselves in a dangerous situation where they know that the use of deadly force could be required.

Shawn Vincent:

There’s a lot to digest. We’re going to break this one up into two parts, so here is the Part One of our exploration of the Kyle Rittenhouse case with Don West and Steve Moses. Thanks for listening.

Shawn Vincent:

I’ve got to ask you, Don, you and I have worked on controversial high profile self-defense cases before. What did you think of the defense attorney’s video that was released two days ago?

Don West:

Well, it’s pretty clear, isn’t it, that if there are two sides, and there’s at least two sides, but two very clear positions on this, that both are scrambling to make their case in the public for either, I suppose, political purposes, or in some respects perhaps to more level the ground as to what information the general public is exposed to as they begin to filter through the publicly available information.

Don West:

Then, I think there’s probably some fundraising components to this, since Kyle Rittenhouse has a defense fund, and the lawyers are very clearly seeking contributions for that fund to offset the legal expenses. Everybody’s got a little bit of personal stake in this for one reason or another, and then, of course, the whole thing just drips with politics, so it makes it pretty difficult to sort through if you’re trying to be objective. The goal being objective as to the known facts, and then a more objective assessment of those facts. It’s like, was it Yogi Berra that said, “Deja Vu all over again?”

Shawn Vincent:

Deja vu … For you and I who have been involved in a case where there is one impression made in the press at the beginning, and then as more facts come out, you start to see, “Oh, this isn’t the same case that everybody’s talking about.” You have this weird thing where the defense argument, based on this video, their accounting of the facts fits very closely with what we saw in the criminal complaint.

Don West:

The stated facts in that criminal complaint, setting aside how they got the charges out of those facts. If you look just at the criminal complaint, it seems relatively straightforward, not as complete as it would be if all of the information were known, but you’re right, it largely tracks the self-defense narrative as promoted by the defense. It’s really, so far I think, has been a question of interpretation of the known facts, or the spin that one party or the other has put on it, as opposed to there being revelatory new information.

Shawn Vincent:

Sure. Steve, after having had a chance to look at all those videos in context, what’s your takeaway?

Steve Moses:

Well, I always kind of come back to “Did Kyle need to be there, and did he certainly need to be there in the capacity that he was?” He was armed. He was appearing on interviews. He was talking about how he was a medic. Again, I kind of have issues with that. I think he kind of set himself up for getting in a place where now he really wishes that he hadn’t been, that he hadn’t done. By the same token, I think that he found himself in a situation where he legitimately did fear for his life, and he did what he thought he had to do in order to protect himself.

Shawn Vincent:

I want to touch on something that you said there, and maybe table that idea for a minute, and come around to it at the end, after we’ve had a chance to explore this series of incidents in more detail. It’s about this putting himself in the position where he knew conflict was likely. What we know is that he’s from a town in Illinois that’s across the border from Kenosha, from Milwaukee, and he traveled, oh at least 20 miles to be there where he knew that there were businesses that were potentially under siege, businesses that had been damaged in previous nights of protesting.

Shawn Vincent:

You mentioned that he was giving interviews, and there’s one reporter who is a key witness in this, in the criminal complaint, who talked to him. Kyle says that basically he imagines himself a first responder. He’s the kind of guy who’s going to run to the danger because he feels that he can help, right?

Steve Moses:

That’s correct.

Shawn Vincent:

Then, he talks about how he’s got this long rifle strapped to his back in case he gets in trouble, he can defend himself. I think what I want to come around to in the end is in virtually all the conversations we’ve had about self-defense, we’re asking concealed carriers to avoid confrontation, unnecessary confrontations especially.

Shawn Vincent:

Don, you indicated some of the politics that surround this case. I think there’s a sense, and there’s some talk of vigilante justice, or militias, or groups of “guards,” coming to the defense of property in these riot situations. Perhaps there is a time for a person who feels they need to stand up for something. They decide they are going to take a risk that’s worth taking in their mind, where deadly force could be a possible requirement.

Don West:

Yes, the backdrop to these protests, of course as you mentioned was the shooting of Jacob Blake, who’s a young black man, who was shot several times by law enforcement. I guess some of which, maybe all of them in the back as he was leaning into his car. I think, and Steve can clarify this, but in law enforcement parlance, he was making a furtive move of some sort. His hands weren’t visible, he was disobeying the commands of law enforcement to, first of all to stop so he can be arrested, and secondly not to go in the car.

Don West:

Then, he reached into the car, and at that point, after having been tased a couple of times without any real effect, he was shot several times. I think as many as seven times, and while not killed, he, by all accounts, was paralyzed and perhaps life-long paralysis as a result of it. That shooting was being portrayed in the media as another example of systemic racism in the police department, police brutality. It sort of stair-stepped into ongoing protests that had been taking place very visibly and, on some occasions violently, around the country following the death of George Floyd.

Don West:

The whole nation has been a bit of a tinder box for that narrative, and we can certainly talk about, although I’m not sure we have a lot to contribute on that narrative aspect of this, but to say that the protests in Kenosha sort of mirrored some of the protests that had been going on around the country for weeks, and weeks, and weeks. Mostly peaceful protests, but on occasion becoming more violent, becoming destructive of property, including arson and looting, even posing physical risk to other participants in the protest or law enforcement.

Don West:

It was really a volatile thing, and this had been going on now in Kenosha for a few nights when Kyle Rittenhouse decided that he would go there to help out. In order to do that, he had to travel from his home in Illinois to Wisconsin. He spent part of the day removing graffiti from some public buildings, a school perhaps, and took his medic kit with him, and according to the news reports was provided his long gun by a friend. That’s never been clear to me, except it’s been claimed that it wasn’t his gun, and he didn’t take it with him.

Don West:

By his own statements, he clearly went there, and positioned himself as part of a larger group who was there, to stem some of the violence, to protect some of the property, and from his perspective as someone with some limited medical training, I think when he was a lifeguard, to help people that got hurt. That was sort of the context of it.

Don West:

He made all of those decisions to purposefully put himself in the middle of it, and when we see the video of various points in time throughout the protest the night of that shooting that he was involved in, the shootings that he was involved, and you can see how chaotic and volatile the whole thing was.

Don West:

A number of people dressed similarly to Kyle, carrying long guns, other very loud, aggressive protestors, some lighting fires, the whole thing was, I think, on the precipice of just blowing up, and of course, why we’re talking about this today. Kyle Rittenhouse wound up shooting three people before the night was over.

Shawn Vincent:

Steve, do me a favor, set the stage for me from what you saw in the video, and what you read in the police reports about this first confrontation that Rittenhouse gets in. This is going to be with a guy named Joseph Rosenbaum.

Steve Moses:

Okay, yeah. Everything I’m going to say here is pretty much my impression, and I just always feel like any time I look at anything that’s been provided by the media, that I’m either missing something, or I’m being manipulated, but by the same token, there was an initial confrontation between Rosenbaum and another, I don’t want to use the word militia, I don’t even want to use the word counter-protester, but there was someone …

Shawn Vincent:

They were referring to themselves as “guards.”

Steve Moses:

Guards, okay. Well, I’m going to use the term “guard,” self-appointed guard.

Shawn Vincent:

Yeah.

Steve Moses:

There was a confrontation between them. From what I understand, Rosenbaum had attempted to light a dumpster. I think the intent was to maybe push that into a building. The guard, as I understand that, extinguished that. At that point, Rosenbaum became apparently enraged. He was using profanity. He was actually saying such things as “Shoot me. Shoot me.” At some point, he went after Rittenhouse. Now, I’ve read perhaps that Rittenhouse might have done something that caused his attention.

Steve Moses:

Maybe Rittenhouse was moving with a fire extinguisher. Perhaps his intent was to also extinguish a fire. Regardless, I understand that Rosenbaum began pursuing Rittenhouse. He threw something at Rittenhouse. I’m unsure as to what it was. I’ve heard things go it was a Molotov cocktail. Other people saying it was a plastic bag. Whatever it was, it did not seem to cause any damage to Rittenhouse. Rittenhouse, while attempting to flee, ran in, it looked like, between two cars.

Steve Moses:

From the report that I read, there was a crowd on the other side that blocked his path, which basically left him no place to go in which he turned around and Rosenbaum, at that time, moved in, and according to one witness, attempted to grab the barrel of that rifle, at which time Rittenhouse responded and I believe he may have shot as many as four, fired as many as four rounds at Rosenbaum, and Rosenbaum fell to the ground.

Steve Moses:

I believe from there, Rosenbaum offered to assist medically. That is Rittenhouse offered to assist Rosenbaum medically, and I think that was pretty much the end of that particular confrontation.

Shawn Vincent:

Right, yeah. One of those key witnesses that you’re talking about was actually the reporter who had spoken to him and recorded him just moments before this encounter happens, and he’s gone on TV, and he’d spoken to the police and described Rosenbaum closing on Rittenhouse and “lunging” was some of the terms I’ve heard him use, to say as he reached for the rifle. My understanding was that Rosenbaum was shot four times, and that there were maybe a total of eight shots fired, but they may not all have been from Rittenhouse’s rifle because there were other armed people in the area.

Shawn Vincent:

To add on to what you said, Steve, we see from that video that his attorneys released, that he’s sort of standing aside. Those other people are addressing Rosenbaum who’s on the ground, on his back, and then you start to hear things from them like, “We’re going to get that guy,” and Rittenhouse realizes he’s in danger and runs. Meanwhile, he called a friend of his on the cellphone and announced that he had just killed somebody. I think that’s a great way to wrap up the first event.

Shawn Vincent:

I want to ask you, Steve, and Don, real quick, a lot of these cases that we talk about, most of these cases, in fact, that we talk about deal with an armed person shooting an unarmed person. These are the most controversial self-defense cases, and the problem with that is we have this disparity of force, and I’d like you to talk about that for a moment in the context of this case.

Don West:

The disparity of force being someone with a gun has lethal force immediately available, and as soon as they fire that gun, they have deployed lethal force, so firing a gun is deadly force as a matter of law, however the right to use deadly force is not dependent on you yourself being faced by someone who also has a gun or a knife but merely the ability, and the opportunity, and the intent to use force sufficient to cause you great bodily harm or death. That’s really the definition of deadly force is force sufficient to cause great bodily harm or death.

Don West:

We have a really interesting dynamic because we know legally the person doing the attacking doesn’t have to be armed, but they have to be capable and able to deploy sufficient force to give the defender a reasonable apprehension that they need to act immediately to avoid being seriously injured or killed. We have, though, in a mob type context the very chaos of the moment creates a different view of, I think, a different view of whether the person being attacked that has the gun is facing a deadly force threat, there are other people typically involved.

Don West:

There may be additional chaos created by the circumstances that is reasonably interpreted as escalating or deadly force. Of course, it’s the perception of the person being attacked whether they are being attacked to that degree that they need to defend themselves, whether the other person has a weapon or not. In a sense, since Rosenbaum probably didn’t have a weapon other than the bag that he threw and whatever was in the bag.

Don West:

On the other hand, this reporter fellow, Richard McGinnis, had a pretty good look at how this thing unfolded, clearly saw Rittenhouse being chased, saw Rosenbaum chasing him, saw the presence of others that were armed around them. In fact, just moments before Rittenhouse shot Rosenbaum, someone else discharged a weapon as Rittenhouse was running away.

Don West:

In my mind … Yeah, it’s reasonable that Rittenhouse could have factored that in, thinking that he was being shot at, at that point, either by Rosenbaum or somebody that was a compatriot of his of some sort.

Shawn Vincent:

He was being surrounded by an angry crowd, he hears a gun shot, and now he’s got this guy reaching for his rifle.

Don West:

I don’t think that in most circumstances standing alone, the fact of somebody reaching for your gun is in and of itself sufficient to use deadly force to shoot them, but if there’s other stuff that helps make it pretty clear what their intent is, then the idea of reaching for the gun to disarm you, I think, if it’s consistent with the other things that are going on, certainly would give you reason to believe that the purpose, especially if there had been other attacks along the way, or people chasing you when you’ve clearly made it clear that you don’t want to engage, if someone’s reaching for the gun, it’s certainly part of that computation, if you will, an assessment of what’s going on, it’s reasonable to think their goal is to take that gun from you so they can use it on you.

Shawn Vincent:

We’ve talked before, these cases where sometimes your gun, if it’s wrestled away from you, becomes “the gun,” and all of a sudden, you’re in a world of hurt.

Don West:

We don’t have video of that one specifically. We do have McGinnis making it clear that Rosenbaum was reaching for the gun, trying to get the gun after chasing him, after there being clearly a confrontation and an attack. The idea of taking someone’s gun, and whether that rises to the level of you being allowed legally to defend yourself with deadly force, makes it a little more … We can discuss it a little easier in the context of the later events that are actually on video.

Don West:

I think when you put all that together, the fact that Rosenbaum wasn’t absolutely armed at that moment, once he attacks Rittenhouse, once he throws stuff at him, once he chases him, and then once he reaches for the gun, my thought is that Rittenhouse, regardless of all the circumstances under which he finds himself at that moment, he would have a reasonable belief that a deadly force threat was imminent.

Shawn Vincent:

Steve, from a tactical point of view, you’ve got a long gun like this, Smith & Wesson AR-15-style rifle, and you’re being attacked by an otherwise unarmed person. How are you handling this situation?

Steve Moses:

Well, if you have the physicality and the skills, which a lot of police officers and trained concealed carriers do, you possibly have the option of retaining that firearm. In many, many instances there’s a high probability that someone that gets their hands on that gun, gets the muzzle diverted, and is physically stronger, and when I looked at the two, Rittenhouse compared to Rosenbaum, Rosenbaum definitely looked like he was more physically capable than Rittenhouse, I believe that there was a very good chance that his life was in danger.

Steve Moses:

In some instances, people that take tactical rifle courses, when they are in danger of losing a long gun, someone has seized the muzzle, they feel like they have no other options, they can actually lever the muzzle up and the butt of the gun . . . often just by taking a knee, and then basically you’re literally shooting the attacker off the gun.

Steve Moses:

Whether that is what took place, I don’t know, but I could definitely understand the concern that Rittenhouse would have under those circumstances especially in light of what Rosenbaum had said. He was chasing him, which is … There was in a crowd. I feel like he had a very sincere legitimate fear for his life.

Shawn Vincent:

Yeah, and Don, I heard you … There’s a lot of facts that we don’t know. You and I, we hate making legal conclusions before things have gone through a court, and we’ve had a chance to see what gets in and what gets out, and have a complete picture. I heard you make a tentative assessment that there’s at least a good argument for Rittenhouse that he had reasonable fear of imminent death or great bodily harm in this situation. Did I get that right?

Don West:

Yeah, I think so. Of course, in the calmer setting of the jury box, since he is now being prosecuted for that shooting, as well as the others, the jury will have the opportunity to consider far more evidence than is currently available now, and the opportunity, of course, to really drill into what was going on at that moment in order to determine if under those circumstances that Rittenhouse acted reasonably.

Don West:

I don’t see anything, when we look at the moments leading up to the shooting and the actual shooting itself of Rosenbaum, that jumps out to me that suggests that it was unreasonable. I don’t like the idea that a 17-year-old kid was there with a long gun, expecting there to be violence, otherwise he wouldn’t have felt the need to have the gun with him to start with. There’s a lot of things that I think he has been already criticized for, and will continue to be criticized for some of that decision-making. He’ll be criticized for calling his friend afterwards …

Shawn Vincent:

Instead of calling 911.

Don West:

… and say that I just shot somebody instead of … Yes, sure, instead of 911. On the other hand, he was clearly retreating. He was trying to get away. He was avoiding it, and that is consistent throughout. While he may have contributed to the events starting by just showing up in these circumstances, at the same time, once he was personally attacked, I don’t see anything that strikes me of him being grossly unreasonable in his reaction. Tragic, nonetheless, but not unreasonable in the sense that would defeat his self-defense claim.

Shawn Vincent:

I think it’s important that he was, at all times, seemed to be trying to retreat from the aggressor there. Steve, I want to ask you, did he draw attention to himself? Did he make himself a target by having that conspicuous long gun?

Steve Moses:

Oh absolutely. Absolutely. There’s a couple of reasons I think that’s a problem. One, in a situation like that, you are basically telling these other parties that I’m here, and I’m here because you’re here, and I may oppose you. Again, if he felt like he was in danger, the only way it was safe was if he brought a gun. Obviously, he just proved that that didn’t change anything. He was still in great danger.

Shawn Vincent:

Yeah.

Steve Moses:

If a concealed carrier has to go into an area that he or she has to go, and they just have no choice, and they can’t get out of there, in most of the instances, having a long gun in your possession is not a good idea because a lot of times, it not only attracts the attention, in this case, of the people that were opposing Rittenhouse’s stance, but it also causes concerned citizens to say, “Oh, I have a man with a gun,” and call the police, and also, the police have no idea who the good guys are, and the bad guys are.

Steve Moses:

Until you’ve confirmed without a doubt that you’re not a threat, they’re going to consider you a threat, so I just believe that there was just no good reason whatsoever for him to bring a long gun, in addition to just kind of the retention issues that I had mentioned earlier, and that it’s just very much easier, especially for two or more people to strip a long gun from a person’s possession than it is a handgun. I just see no good reason that he needed to be there, and he certainly didn’t need to be there with a gun.

Shawn Vincent:

Yeah, not long ago, the three of us talked about the Alexander Weiss case from Minnesota, and in this case, it’s sort of in the aftermath of an automobile crash and the aggressors have been closing in on Weiss, who pulls out his pistol and points it down and diagonal in … It’s a defensive display, but not a very good one, we concluded, and we decided that the aggressors, they even said, “Well, go ahead and shoot me then,” didn’t believe Weiss was willing to use the weapon with deadly force, and basically called his bluff, which that guy got shot, so I guess he was wrong.

Shawn Vincent:

This is what I think happens here with Rosenbaum. I can’t imagine, if you believe this kid was willing to use this high powered rifle, that he would have gone charging at it. Even the reporter, Richard McGinnis, on air, he kind of indicated that he didn’t think that Rittenhouse was handling the rifle very well. I think he shows he handled it pretty well later, but are there signs there that if … Did you detect any of that, Steve?

Steve Moses:

Absolutely. Absolutely. When a person displays competence with a handgun and, obviously, confidence in their abilities, they tend to be taken seriously. The other person that they may be having a conflict with, or perhaps has questionable intent towards that person is way less likely to go ahead and try to engage that person for fear of being injured or killed.

Shawn Vincent:

Don, once he flees that scene with some suspicion that now he’s going to have a mob chasing him down, there must be some time that passes, but pretty soon we pick up from another cell phone video that captures pretty much the rest of what happens. Can you walk us through what your impression was of the rest of this video?

Don West:

Yes, certainly Shawn. At the point where Rosenbaum is shot, and on the ground, as you pointed out earlier, Rittenhouse seemed to hang around to see if he could help in some way. Rosenbaum was shot, I think you said, four times. The head wound is the one that got everyone’s attention, but it was later determined that that was relatively superficial. He had some internal organ damage, I think, that ultimately caused his death, but they wouldn’t have known that then.

Don West:

Many of the people standing right there were trying to render aid, but then it became . . . their anger turned again on Rittenhouse. People were yelling at him, saying things that we could later hear about beating him up, and getting him, to the point that he felt, no doubt, that he couldn’t stay. He had to get away or his life was going to continue to be in danger. He leaves, he makes a call.

Don West:

Then, there was some distance, but it’s evident as he’s trying to get away from this crowd, the crowd purposely continues to chase him. It gets to the point where he’s got a bit of a lead on the crowd that’s chasing him, but someone catches up to him, or joins in and is able to hit him or strike him in such a way that his hat is knocked away, and then as he continues to get away, try to get away from what seems to be several member of this crowd that are voicing verbal threats against him, he stumbles and he falls.

Don West:

I don’t know what the distance would be, measuring it. My sense of it is maybe a half a block, maybe as much as a block from where Rosenbaum was shot. Rittenhouse is on the ground. He still has his gun with him, but he’s sort of on the ground and is now being surrounded and specifically attacked by three people, not including whoever it was that knocked his hat off. The first attacker seems to be trying to use some sort of jump kick or drop kick aimed towards his head as he’s on the ground.

Don West:

I don’t get the impression he had a lot of contact, but I believe Rittenhouse may have fired his gun at that point. Then, the fellow ultimately that died with the skateboard very clearly and separately attacks him, and according to some of the videos and the sill images that were gathered, is able to make some contact with his head or neck, and then that person, in addition to that contact, grabs the gun …

Shawn Vincent:

Yeah, this is Anthony Huber they were talking about there.

Don West:

Huber, Huber is pulling on the gun trying to wrestle it away from him at which point Rittenhouse fires the gun. I think it hits him, the projectile hits him in the chest. He winds up sort of walking, or stumbling away, and dies. There’s this other fellow, his last name I can’t pronounce.

Shawn Vincent:

Gaige Grosskreutz.

Don West:

Gaige Grosskreutz.

Shawn Vincent:

Yeah Grosskreutz. That’s right.

Don West:

Yeah, and he’s sort of standing there when Huber is shot with a gun, has a hand gun displayed that he then sort of pulls back and acts as though he’s withdrawing. Then, sort of all of a sudden, takes a couple of steps towards Rittenhouse with the gun displayed, at which point, Rittenhouse shoots at him, hits him on the gun arm around the bicep, and Grosskreutz is pretty seriously injured at that point, and retreats.

Don West:

Interestingly I think though, is that behind him is another guy that appears to be sort of part of this lead group that’s trying to catch up with Rittenhouse, and he just all of a sudden stands there and puts his hands up and disengages. I want to point that out because Rittenhouse didn’t fire at him, and he didn’t do anything further to attack Rittenhouse, but what I think is important when you’re assessing sort of this whole scenario, is the fact that Rittenhouse did not see him as a threat to warrant the use of force, so he didn’t shoot him, even though he was only a few feet away at that point.

Don West:

I think that factors into how discreet and how clear each of the previous shots were in the context of whether he was facing an imminent threat.

Shawn Vincent:

Yeah, even as he’s running away from …

Don West:

Those are my impressions.

Shawn Vincent:

Even as he’s running away from that, there are shots fired, and he doesn’t turn around to re-engage. He sees that there’s police ahead, and he’s trying to get there. Steve, I want to ask you, was there anything else from that video that stood out to you particularly?

Steve Moses:

Well, the thing is, is that he was running. It was really kind of like a jogging pace.

Shawn Vincent:

He wasn’t sprinting away, was he?

Steve Moses:

He wasn’t sprinting. He wasn’t sprinting and he continued to be pursued while that was taking place. I believe after he engaged the last protester, at some point, he actually turned around and started walking backwards, which was, I think that was something that caused the remainder of the crowd possible concern. There’s a possibility had he done that the entire time, perhaps some of this other stuff would not have ensued. The very fact that he was running might have just kind of triggered that chase instinct that mammals often times will …

Steve Moses:

If perceived prey starts running off, it just engages that. It could be dogs chasing you on a bike, chasing joggers. I believe in part, just the very fact that the way he was moving away, just kind of indicated a definite unwillingness to dynamically engage. As soon as it appeared that now he would, and he was okay watching his six, that he’s covering his six, a little bit more 360 aware, it seems that the crowd attempted … They kind of backed off a little bit.

Steve Moses:

Of course, on the other hand, the police were starting to move in at that point, and they just felt like, “Okay, this is a good time for us to get away from here.” Those were just little things that I picked up.

Shawn Vincent:

Don,] one thing you mentioned to me, it’s a matter of perspectives, and so many of these shootings that we look at, we’ve got these two different worlds colliding. People have gotten completely different perceptions of what’s happening. From Rittenhouse’s perspective, he’s come here to help. He’s come here to protect property. He’s come here to stop looting and rioting.

Shawn Vincent:

A looter and rioter attacked him. He had no choice, in his mind, but to shoot to escape, and now the mob’s turned on him, and he’s running away to get out of there, and to get police. Somebody with the phone camera says, “You running? You running?” He said, “Yeah, I’m going to get the cops,” after he had shot Rosenbaum. From the perspective of the crowd, some of them may be there to cause problems, some of them there as part of the protest — you have an active shooter with a rifle running rampant through town, and you had brought up the question of what were the motivations of the people who are going out of their way to accost a man carrying a very powerful rifle.

Steve Moses:

Absolutely. Absolutely. I believe that all three of those persons that were engaged had violent criminal histories, and it was kind of interesting to me that he was attacked by these three people. He engaged them, and all of them had violent criminal histories. What that tells me is that there’s probably a pretty good likelihood that crowds, and protests, and mobs of this nature kind of attract those people with that kind of background, and a lot of people that have a criminal history, especially one that involved violence, have impulse issues, or impulse control issues.

Steve Moses:

In many instances, they would say that’s what got them in trouble with the system in the first place. It doesn’t come as any surprise to me that when something happened and you have a certain person that not only is comfortable with violence, but probably has imploded against others, would then feel like, “Oh, I am justified in taking this action,” and basically, for all practical purposes, viewing themselves as the good guy.

Steve Moses:

One of my instructors once said, “Steve, nobody thinks they’re the bad guy, including the bad guys.” I kind of thought, “Oh, that kind of makes sense.” I think it makes it all the more clear to me is that it’s not necessary to me to understand what the other person’s motivations are. Some of them are just going to be very, very different from me, and I think William Aprill once said, “These people, they don’t need your consent or approval in order to attack you. They will do it without.”

Don West:

From the idea of what Steve is talking about, you really don’t know what the other person is thinking, and they are in control of their own thoughts, and behaviors, and reactions not withstanding or regardless of what the real circumstances are or what the lawful response might be.

Don West:

My guess is that maybe none of the people that actually physically attacked Rittenhouse there in this second sequence actually saw what happened with Rittenhouse, or if they saw it, they may have only seen a little bit of it, or they may have just gone there to help render aid and didn’t see any part of what led up to the actual shooting, so they are probably, in large part, chasing him out of ignorance because someone said, “Hey, he just shot this guy,” and they want to get him.

Don West:

Do they want to get him to disarm him so that he can’t shoot anybody else? Do they want to get him because they’re threatening to beat him up, you can hear some of that, to punish him for what they believe he just did? Do they want to shoot him or kill him for what they perceive that he did? From Rittenhouse’s perspective, though, it doesn’t really matter what the others were thinking, unless their thoughts translate into behavior that he should have recognized as being something other than what he obviously perceived it to be?

Don West:

When they’re yelling, “Beat him, get him,” chasing him, knocking him down, swinging a weapon, the skateboard is clearly a weapon in a sense, drawing guns, all in the context of him trying to get away, and them basically not being content with that, but rather to become the aggressors themselves. I think that Rittenhouse’s perception that they were his attackers and that they intended to seriously injure him or kill him is reasonable.

Don West:

That probably doesn’t really matter, or depend very much on what ultimately comes out of the Rittenhouse shooting. That one’s pretty problematic to me because we know a lot less about it. There’s no clear evidence. When you pointed out earlier, Shawn, there could be simply a disproportional use of force analysis.

Shawn Vincent:

For the shooting of Rosenbaum? The first shooting?

Don West:

Yeah. Sure. The jury could find that he had threatened him, that he was a clear, imminent threat, that he intended to beat him up, or that he even intended to take his fun away, but he didn’t intend to use it on anybody, and if it didn’t rise to a life-threatening threat, a use of deadly force, then they could find that Rittenhouse was allowed to defend himself, but he just wasn’t allowed to use deadly force. That’s how things could align perfectly, and yet, the use of deadly force could wind up not to be justified there, although I don’t think that’s going to be the outcome, nor should it be, that’s certainly the prerogative of the decision makers.

Shawn Vincent:

It’s a possibility when you get a jury.

Don West:

Yes, oh sure.

Shawn Vincent:

All right, that’s the end of Part One. In part two of the Kyle Rittenhouse case, we’re going to look deeper into the second and third shootings, look at the legal challenges that Rittenhouse faces, and we’ll talk about the responsibility that comes with the right to carry. Until then, be smart, stay safe. Take care.