The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process.
Is the Gun Charge A Sinister Attack on Kyle’s Self-Defense?
Welcome to our ongoing Law of Self Defense coverage of the criminal trial of Kyle Rittenhouse.
Today’s content is the second of a two-part discussion of the rather odd misdemeanor gun charge against Kyle Rittenhouse—odd in the serious that he is already charged with five very serious felony charges, including an intentional murder charge good for life in prison plus five years for the gun sentencing enhancement.
So why also include a misdemeanor charge good for at worst 9 months in jail and a $10,000 fine—and, given Kyle’s perfectly clean criminal history, how unlikely it is that he’d receive that maximum punishment even if convicted of this charge?
There were two key issues I wanted to tackle on this matter of this misdemeanor gun charge.
First, which we covered in yesterday’s content, was whether Rittenhouse had even violated the relevant gun law in the first place. You can find that content here: [CCW no link, LI to LI link, YouTube reference YouTube link, LOSD to LOSD link.] “Rittenhouse: Should Misdemeanor Gun Charge Just Be Dismissed?”
The bottom line was that a plain-English reading of the relevant Wisconsin statutes would appear to exclude Rittenhouse from any criminal liability under the charged misdemeanor gun crime. It is for this basis that the defense has filed a motion, still under consideration by Judge Schroeder, to have this gun charge dismissed.
Second, and the issue we’ll discuss in today’s content, is why is Assistant DA Binger so aggressively pursuing this relatively modest misdemeanor gun charge against Rittenhouse when he already has a handful of serious felony charges pending against the defendant? Is there a simple, straightforward rationale for this?
Or might the prosecutor have a more sinister strategy behind bringing this charge—a strategy that threatens the very core of Rittenhouse’s self-defense? A strategy that, if successful, would leave Rittenhouse defenseless against conviction on every one of the felony charges brought against him?
So, grab a seat and make yourself comfortable, as we dive into this second question about the why behind this misdemeanor gun charge.
So, why is Assistant DA Binger so aggressively pursuing this relatively modest misdemeanor gun charge against Rittenhouse when he already has a handful of serious felony charges pending against the defendant? Is there a simple, straightforward rationale for this?
One possible motivation behind this misdemeanor gun charge is that it is serving as a “safety charge,” in the hopes that even if Rittenhouse is acquitted on all the more serious felony charges—which seems likely to me, given a fair and impartial jury, in the context of Rittenhouse’s planned legal defense of self-defense—that perhaps the jury will “compromise” on at least this misdemeanor charge such that the prosecution doesn’t walk away completely empty-handed.
If that’s all that’s at play here, that’s certainly not a bad outcome for Rittenhouse even if he should be found guilty of this misdemeanor gun charge. Again, the felony charges against him have life in prison plus 5 years for the gun enhancement hanging over his head. In contrast, a conviction on this misdemeanor charge carries at worst 9 months in jail and a $10,000 fine—and given his complete lack of any prior criminal record, he’s unlikely to be subject to those maximums.
But there exists a potentially more clever—or, arguably, more sinister—rationale behind the prosecution’s rather desperate arguments to keep this apparently modest misdemeanor gun charge in play—and that is the possibility, however much a stretch, that a conviction on this misdemeanor charge could threaten the core legal defense of self-defense that is required if Rittenhouse is to avoid conviction on the felony charges against him.
Recall that Rittenhouse’s sole defense to each and every one of the felony charges against him is the legal defense of self-defense. Self-defense is a perfect legal defense, meaning that if the prosecution is unable to disprove self-defense beyond a reasonable doubt, Rittenhouse has zero legal liability for any of his several uses of deadly defensive force the night of August 25, 2020—simply put, his killing of two men, wounding of a third, and (purported) endangerment of two others were simply not crimes, if committed in lawful self-defense.
Importantly, there is no dispute that Rittenhouse committed the acts underlying the criminal charges against him—there is no dispute that he shot and killed Rosenbaum and Huber, and wounded Grosskreutz, for example. His defense is not, it wasn’t me, his defense is, it WAS me, but I had the legal justification of self-defense. Indeed, conceding responsibility for the underlying physical conduct is a necessary condition of claiming self-defense in the first place.
Given this legal reality, what if ADA Binger could take the legal defense of self-defense off the table? What’s left of the Rittenhouse’s legal argument—it WAS me, but I did it in self-defense—if there is no self-defense?
Well, little more than a confession to the alleged crimes—it WAS me, period.
But is there a path by which ADA Binger could effectively take the legal defense of self-defense off the table, and effectively leave Rittenhouse defenseless against the criminal charges against him?
Well, obviously not every use of force qualifies as self-defense. Every state’s self-defense law includes conditions that must be met in order for a use of force to qualify as self-defense and be free of criminal liability. Also, every state’s self-defense law includes exclusions that must be avoided in order for a use of force to qualify as self-defense and be free of criminal liability.
Is it possible that Rittenhouse’s possession of the gun, a possession claimed to be unlawful by the prosecution, could trigger an exclusion that strips Rittenhouse of the legal defense of self-defense?
That’s the question we’re exploring in today’s content, in the context of the misdemeanor gun charge brought against Rittenhouse.
Generally speaking, a person’s legal privilege to use force in self-defense is not conditional on that person not being engaged in unlawful activity—generally speaking.
What I mean by that is it’s not usually a case where just any criminal activity whatever results in the loss of self-defense—only particular forms of criminal activity typically lose one the legal defense of self-defense.
Criminal activity of a violent nature, for example, would certainly lose one self-defense if it qualifies as the conduct of an unlawful aggressor. Point a gun at a liquor store clerk to initiate an armed robbery, and you’re committing precisely the kind of physically aggressive unlawful activity that losses you self-defense.
Obviously non-violent criminal activity, however, generally does not lose one the legal defense of self-defense. It is common, for example, for drug dealers to find themselves the subject of armed robberies—I mean, what’s not to like, they have both drugs and money, right? If a drug dealer is subject to an unlawful threat of imminent deadly force in the course of that armed robbery, in most states that drug dealer fully retains his legal privilege to use deadly force in self-defense. He may still be on the hook for drug dealing—but that separate criminal conduct does not in any way strip him of his legal privilege of lawful self-defense.
Now, this is not always the case. Some states do condition self-defense on not being engaged in unlawful activity at the time. In most cases, the triggering unlawful activity must be a felony—a mere misdemeanor would not be enough.
One example of this is found in Georgia, which conditions it’s self-defense privilege, defined in § 16-3-21. Use of force in defense of self, on not committing a felony.
This past February, for example, I wrote about a recent Georgia Supreme Court decision which affirmed stripping self-defense from a defendant who killed another in purported self-defense while engaged in a felony-level marijuana transaction: OOPS! Can You ACCIDENTALLY Lose Your Right to Self-Defense?
Absent the marijuana transaction, this shooting would have been a perfectly lawful use of deadly force in self-defense—but the defendant was not privileged to justify the shooting as self-defense because the act was committed in the context of the marijuana transaction.
Wisconsin does not have this kind of generalized “commit a felony and lose self-defense” provision that Georgia has in place. Wisconsin also does not have even a generalized “commit a mere misdemeanor and lose self-defense” provision—and for this reason I’ve frequently noted that even if Rittenhouse were found guilty of the misdemeanor gun charge, that conviction alone would not in any way diminish his self-defense justification.
He might still be on the hook for a misdemeanor gun crime (theoretically), but his use of force in self-defense would still be justified.
There is, however, a weak but possible “back-door attack” on Rittenhouse’s claim of self-defense through this misdemeanor gun charge—and that backdoor attack is if the prosecution can argue that the claimed unlawful possession of the gun, by itself, qualifies as conduct by Rittenhouse intended to provoke an attack against himself, with the intent of then using that attack as an excuse to use deadly force against his attackers.
Essentially, the argument would be that Rittenhouse orchestrated the circumstances that “allowed” for his shooting of Rosenbaum, Huber, and Grosskreutz, and his reckless endangerment of two others—that none of these acts would have occurred but for Rittenhouse’s intentional provocation of being openly armed with his rifle.
So, let’s take a look of how this legal argument might unfold in the context of Wisconsin self-defense law.
When we look at the Wisconsin self-defense statute § 939.48. Self-Defense and Defense of Others, we find that the state of Wisconsin, unfortunately, uses certain legal terms of art in a very different way than most states use those terms—the underlying legal concepts are the same, but the unusual terminology can complication understanding.
(Much the same happened, incidentally, in the Derek Chauvin trial—the charges of “murder” against Chauvin were all claims of the unintentional killing of George Floyd, what would have been called “manslaughter” in every other state—not even the prosecution ever claimed that Chauvin intentionally killed Floyd. Yet under Wisconsin law Chauvin is convicted of “murder,” even though most states would call the conduct “manslaughter.” It’s worth noting, too, that his actual sentence of 22 years is much more akin to a manslaughter sentence than a murder sentence, typically life in prison.)
All states will strip a purported defender of the legal justification of self-defense if they unlawfully start the fight—if they are what most states call the “initial aggressor.”
This doctrine is also true under Wisconsin self-defense law, although instead of referring to this person as an “initial aggressor” Wisconsin refers to them as “a person who engages in unlawful conduct of a type likely to provoke others to attack him.” We see that language in paragraph (2)(a) of the Wisconsin self-defense statute § 939.48:
(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 …
If ADA Binger can successfully argue that Rittenhouse’s possession of the rifle was unlawful (itself a questionable proposition, for reasons discussed in yesterday’s content), and was also conduct likely to provoke others to attack him, he would appear to have stripped Rittenhouse of the privilege of self-defense to defend against the resultant attack that he purportedly provoked.
Except that under Wisconsin law, as under the law of every other state, there are ways that a person who has as a result lost self-defense in this way can nevertheless regain self-defense as a legal justification—and the circumstances around the uses of force by Rittenhouse would appear to have regained him self-defense even if he had initially lost it as an initial aggressor. That’s why the portion of § 939.48(2)(a) shared above ends in the word “except.”
That paragraph continues with:
(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.
So, even if Rittenhouse could be said to have lost self-defense because he engaged in unlawful conduct likely to provoke others, he regains the privilege to use force in self-defense if he both (1) is facing a deadly force threat from those provoked; and (2) has exhausted every other reasonable means to escape that threat.
In the case of Rittenhouse, each use of force by him on the night of August 25, 2020 was apparently used to stop a deadly force threat, and every use of force was committed while he was in flight, or attempted flight, from those attacking him.
So, even if Rittenhouse had lost self-defense by unlawful conduct that provoked an attack, he regained self-defense because the attack upon him was deadly in nature, and he did everything in his means to avoid the fight.
Further, paragraph § 939.48(2) provides a second means by which a provoker can regain self-defense, found in subparagraph (2)(b):
(2) Provocation affects the privilege of self-defense as follows:
(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.
Again, each use of force by Rittenhouse occurred while he was in flight, or attempted flight, from those attacking him. He was by all appearances attempting in good faith to withdraw from the fight, and his clear attempts at flight gave adequate constructive notice to his attackers that he was doing so.
So, once more, even if Rittenhouse could be said to have lost self-defense as a provoker, his withdrawal from the fight and constructive notice of withdrawal to his attackers would regain him his legal privilege of self-defense.
But there’s a third way for a provoker to lose self-defense under § 939.48(2), and this involves a particular aggravated form of provocation—what is commonly referred to as a “provoker with intent.”
What we’ve been discussing so far might be referred to as a “simple provoker”—someone engaged in conduct likely to provoke others to attack, but not intending that others attack. Someone committing a liquor store armed robbery, for example, points their gun at the clerk in a manner likely to provoke the clerk to attack in self-defense—but triggering that attack response by the clerk is not the intent of the armed robber, who simply wants the cash from the register.
A “provoker with intent,” however, does intend to trigger an attack upon themselves—that’s why they are engaged in the provocative conduct.
A classic example of this is the person shouting at another “go ahead, throw the first punch, throw the first punch, I dare you!” The person shouting this is not doing so because they want to be punched in the face. They are doing so in order to goad the other person to throw the first punch—to be the initial aggressor—so that they will then have an excuse to use force against that other person.
A great real-life example of such “provocation with intent” can actually be found in the Rittenhouse case--but not being committed by Rittenhouse. Rather, a classic example of “provocation with intent” can be seen in the conduct of Joseph Rosenbaum earlier in the evening, when he’s threatening first to kill Rittenhouse, and then repeatedly challenged Rittenhouse to initiate the use of force upon him—“Shoot me n-word, shoot me n-word!” captured on video. In combination with the already made threat of deadly force, made against Rittenhouse, this was clearly provocation with intent on the part of Rosenbaum. [Note: N-word has been muted in video embedded below.]
The primary distinction between an initial aggressor (what Wisconsin calls a simple “provoker” in § 939.48(2)(a)) and a “provoker with intent” is that the simple “provoker” gain regain self-defense through withdrawal and communication, as already discussed, “provoker with intent” with intent cannot, per § 939.48(2)(c):
(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.
Note that the conduct of the provoker with intent does not need to be unlawful conduct—the statutory provision explicitly allows for “lawful or unlawful conduct.” It merely requires that the conduct provoke an attack, and that the provoker had the intent of using that provoked attack as an excuse to cause death or great bodily harm.
If those conditions are met, the privilege to claim self-defense as a justification for that use of force is eliminated, and no regaining of self-defense is possible.
So, the bottom line is that if ADA Binger can convince the jury that Rittenhouse’s possession of the rifle constitutes provocation with intent—that the possession provoked an attack from others with the intent of then having an excuse to use deadly force against those others—then as a “provoker with intent” Rittenhouse loses the legal defense of self-defense.
To be clear, in this scenario Rittenhouse does not lose self-defense solely because his possession of the rifle was found to be unlawful—that alone in no way diminishes Rittenhouse’s claim of self-defense. So the notion that Rittenhouse loses self-defense simply because his possession of the rifle was purportedly unlawful remains legal nonsense.
Rather, Rittenhouse’s claim of self-defense is threatened if that conduct is accepted by the jury as conduct likely to both provoke an attack upon himself with the intent on his part to then have an excuse to use force upon those who attacked him.
In other words, that Rittenhouse’s possession of the rifle was intended to orchestrate circumstances in which he could use deadly force upon others and wrongly attempt to make that use of deadly force appear to be self-defense.
As noted, the “provocation with intent” attack upon Rittenhouse’s claim of self-defense does not require that the underlying conduct, the possession of the rifle, be actually unlawful. So if this is the strategy being pursued by ADA Binger, why is he even bothering to push this misdemeanor gun charge? After all, actual unlawfulness of the conduct isn’t necessary to establish “provocation with intent.”
The difficulty for ADA Binger is that there is no explicit evidence of provocative conduct by Rittenhouse. Unlike the case with Rosenbaum, there is no video or any other evidence that Rittenhouse was attempting to provoke a fight with anyone with the intent of then having an excuse to use force against them—there’s no “shoot me N-word!” conduct by Rittenhouse.
In place of such explicit evidence of provocation with intent, it’s possible that ADA Binger is hoping to have a finding of unlawful gun possession serve in the place of such evidence. If he can pull that off, he may be thinking, then he can strip Rittenhouse of self-defense on the grounds of provocation with intent.
I suspect we were seeing precisely this kind of effort by ADA Binger in his cross-examination of defense use-of-force expert witness Dr. John Black at the October 5, 2021 pre-trial evidentiary hearing (we’ll cover Dr. Black’s testimony at this hearing in greater detail in upcoming content).
With respect to each of the main victims in this case, Joseph Rosenbaum, Anthony Huber, and Gaige Grosskreutz, during his cross-examination of defense use-of-force expert Dr. John Black during the October 5, 2021 evidentiary hearing, ADA Binger repeatedly tried to suggest that the only reason Rittenhouse was attacked in the first place was because he had the gun. In other words, that his open possession of the rifle itself is what provoked the attacks upon him.
For example, with respect to the shooting death of Joseph Rosenbaum, ADA Binger had the following exchange with Dr. Black, in which he repeatedly suggests that it was Rittenhouse’s possession of the rifle that caused the deadly force confrontation to occur:
With respect to the shooting death of Anthony Huber, ADA Binger has a very similar exchange with Dr. Black:
ADA Binger seems to want to take the same approach with respect to the shooting of Gabe Grosskreutz, but seems to trip up on the incontestable fact that Grosskreutz had a Glock pistol in hand as he was closing on a downed Rittenhouse, and has publicly stated that it was his intent to shoot Rittenhouse dead in the street:
So, does Rittenhouse’s purportedly unlawful possession of the rifle really qualify as provocation with intent that would strip Kyle Rittenhouse of self-defense entirely? Well, if it doesn’t—and I’d suggest it doesn’t—it nevertheless certainly seems as if that’s a line of argument being pursued by ADA Binger
And if ADA Binger can strip Rittenhouse of self-defense, he’s got a walk-away conviction on every felony charge against Rittenhouse, because self-defense is the only possible defense against those charges on the facts of this case.
So—to circle back to the original question posed in today’s content, of why ADA Binger is so aggressively pursuing this apparently petty misdemeanor gun charge against Rittenhouse that otherwise would seem to be small potatoes in the greater scheme of the five serious felony charges and life sentence already hanging over Rittenhouse’s head, perhaps we have an answer.
I feel obliged to note that in my professional legal opinion this “provocation with intent” strategy of ADA Binger, assuming it is his strategy, has little chance of success on anything resembling the legal merits—if only because of the utter lack of any evidence of provocation with intent on the part of Rittenhouse.
On the other hand, ADA Binger doesn’t have all that much to work with in this case, given the overwhelming degree to which the evidence and law is consistent with the lawful use of deadly force in self-defense by Rittenhouse.
When prosecutors bring these types of cases, presumably because “the power of the politics compels them,” and then they almost invariably find they have little evidence and law to work with, they are also compelled to reach for lines of argument that are rather far beyond reason and legal merit.
There’s an old cliché in the legal profession that when the facts are on your side, you pound the facts; and when the law is on your side, you pound the law; and when neither the facts nor law are on your side, you pound the table.
I expect we’ll be seeing a lot of “pound the table” by ADA Binger, as we’ve already seen in the pre-trial hearings to date, and this type of extremely unpromising “provocation with intent” attack on Rittenhouse’s claim of self-defense is precisely the kind of “pound the table” approach I’d expect from a prosecutor in these circumstances.
Frankly, I hope to see Judge Schroeder dismiss the misdemeanor gun charge, either for reasons of unconstitutional vagueness or by finding that the evidence simply doesn’t support the charge—that the relevant statute doesn’t apply to Rittenhouse on the facts of this case.
If the misdemeanor gun charge does go forward, and I see little support for it in the evidence, but even if Rittenhouse were found guilty of this charge I see little threat to his claim of self-defense—at least on the actual legal merits.
If the jury finds itself looking for a reason to completely unravel self-defense entirely, however, and simply convict Rittenhouse of all the charges regardless of the lack of legal merit to support such a verdict, a desperate effort by the prosecution to characterize this misdemeanor offense as the “provocation with intent” needed to crush the legal defense entirely may provide the jury with just the excuse they need to do exactly that.
In which case Rittenhouse would be facing a sentence of life in prison—plus 5 years for the gun sentencing enhancement.
OK, folks, that’s all I have for you on this topic at the moment.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
FREE BOOK! “The Law of Self Defense: Principles”
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert. Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media. Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online.
Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country.
In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.
Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.