Part 3: Rifles and Rallies
Seventeen-year-old Kyle Rittenhouse traveled from his home in Antioch, Illinois to Kenosha, Wisconsin on August 25th, 2020 -- the third day of social unrest following the police shooting of Jacob Blake. “Our job is to protect this business,” he told reporter Richard McGinnis. “Part of my job is also to help people. If there’s somebody hurt, I’m running into harm’s way. That’s why I have my rifle, because I need to protect myself. . .” Before the night was over, Rittenhouse would be attacked multiple times, and he would shoot three people with that rifle, killing two and wounding one.
In addition to charges for intentional homicide, reckless homicide, attempted intentional homicide, and recklessly endangering safety, Rittenhouse has been charged with the misdemeanor offence of “possession of a dangerous weapon by a person under 18.” There is some debate regarding whether Wisconsin’s “poorly drafted” law, as one Milwaukee lawyer put it, applies to Rittenhouse’s circumstances, and while the legality of Rittenhouse’s decision to open carry a rifle will be decided by a jury, the question of whether it was tactically and legally wise for Rittenhouse to bring a conspicuous long gun into such a volatile situation is something concealed carriers can consider now.
Recently, I discussed this case with Don West, National Trial Counsel for CCW Safe, and with Steve Moses, firearms instructor and CCW Safe contributor. Both agreed that, based on publicly known facts, Rittenhouse has a strong self-defense claim for each of the August 25th shootings. Both gentlemen, however, expressed serious misgivings about Rittenhouse’s decision to open carry a rifle during a violent protest.
From a legal perspective, Don West points out that one of the key considerations for justifying the use of force in self-defense is demonstrating that the force used was proportionate to the threat. Generally speaking, it can be difficult to justify the use of deadly force against an unarmed assailant -- unless there are extenuating circumstances that suggest the attacker has the imminent intent and ability to cause serious bodily injury or death. We’ve heard the adage “bringing a gun to a fist fight” to criticize defenders in controversial shootings involving unarmed attackers. That sentiment is amplified in a case where the defender brings a RIFLE to a fist fight.
We have explored the case of Zach Peters who justifiably used an AR-15-style rifle to shoot masked intruders in his home. The case probably would never have made headlines had Peters used a handgun. While Steve Moses reminds us that rifles offer very strong tactical advantages for home defense (including their precision, formidable power, and use as a visual deterrent), the controversy that swarmed around the Peters case also reminds us that some people perceived the rifle as overkill. Likewise, in the Gerald Strebendt case, where the veteran marine-sniper shot an agitated unarmed assailant with a .223 caliber rifle, the district attorney seemed to feel the rifle -- combined with Strebendt’s prior incidents and boastful social media posts -- was an expression of Strebendt’s aggressive demeanor and cavalier attitude towards violence.
Technically, the use of a rifle over a pistol shouldn’t affect the legal assessment of a self-defense case, but there is no doubt it can impact public perception, and district attorneys are not always insensitive to public opinion in high-profile cases.
From a tactical perspective, while Steve Moses illustrates the advantages of a rifle for home defense, he also points out the liabilities of carrying a rifle in a public place where there are lots of people. “In this type of setting, a rifle attracts the wrong kind of attention.” Steve says, “Concerned citizens may mistake the carrier’s intentions, and in chaotic situations, it’s difficult for police to know who the good guys are and who the bad guys are.” Just a month before the Kenosha shootings, Garret Foster wore a tactical vest and carried an AK-47-style rifle during a protest in Austin, Texas. Foster was shot by an eight-year Army veteran who mistook his intentions while angry protesters swarmed around his vehicle.
Watching the video released by Rittenhouse’s lawyers, it seems clear that the first attacker, Joseph Resenbaum, targeted Rittenhouse, perhaps conflating him with another rifle-wielding counter-protester who he had confronted minutes earlier. As Rittenhouse fled from the angry mob, and people started shouting that he had just killed someone, the conspicuous rifle literally made him a target. Arguably, the two individuals who subsequently tried to take Rittenhouse’s rifle, Anthony Huber and Gaige Grosskreutz, may have been genuinely trying to disarm someone they saw as an active shooter. Steve says, “anything we can do to be the gray man, to go under the radar, not to call attention to our person,” can help a concealed carrier navigate a volatile situation.
Steve also raises retention issues associated with carrying a rifle in a busy public setting. Very often, it is easier for an assailant to wrestle a long gun away from a defender than it is to disarm a defender wielding a pistol. “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,” Steve says. “However, in many, many instances, there’s a high probability that someone who gets their hands on that rifle, gets the muzzle diverted, and is physically stronger, can wrestle the weapon away.”
Not to be unkind to Kyle Rittenhouse, the soft-looking seventeen-year-old didn’t appear to possess the “physicality and the skills” Steve suggests are necessary to retain a rifle from an attacker -- especially from a menacing-looking fellow like Joseph Rosenbaum. Richard McGinnis, the reporter who witnessed the shooting, told police that he had a lot of experience with AR-style rifles, and he didn’t think Rittenhouse handled the rifle particularly well. Steve says that a defender who presents a lack of ability or lack of willingness to use a displayed firearm can actually put themselves in serious jeopardy. Conversely, Steve says, “When a person displays competence with a handgun and, obviously, confidence in their abilities, they tend to be taken seriously.” Rosenbaum clearly didn’t take Rittenhouse seriously.
Not long ago, we discussed the Alexander Weiss case where Weiss made a feeble defensive display against two would-be attackers. Unafraid, one of the assailants taunted Weiss to shoot and tried to take the gun. Weiss’ assailant and Rosenbaum were both shot and killed, so they clearly miscalculated, but it’s not unreasonable to suggest that the ineffective way both defenders handled their weapons invited an attack by an unreasonable assailant that ended in tragedy.
In many states, it is legal to open carry a rifle, but that doesn’t necessarily mean it’s a good idea to do so. Kyle Rittenhouse teaches us that the conspicuous display of a rifle can attract negative attention. It can spark conflict. It can create confusion regarding the carrier’s intention, and it can make it difficult for people to distinguish the good guys from the bad guys. Moreover, it is easier for an attacker to wrestle a rifle away from a defender than a concealed handgun. The lesson for concealed carriers, and gun owners in open carry states, is that openly carrying a long gun during a public protest is fraught with legal and tactical perils.
SHAWN VINCENT- LITIGATION CONSULTANT
Shawn Vincent is a litigation consultant who helps select juries in self-defense cases, and he manages public interest of high-profile legal matters. If you have any questions for Shawn, or would like more articles like this, let us know belo