Part 1: Separating Facts and Politics
August 25th, 2020 marked the third night of social unrest in Kenosha, Wisconsin as demonstrators took to the streets to protest the police shooting of Jacob Blake. Night two had seen rioting and looting. On day three, seventeen-year-old Kyle Rittenhouse traveled from Antioch, Illinois to help protect businesses from rioters and to provide first aid to wounded protesters.
“People are getting injured,” Rittenhouse told reporter Richard McGinnis. “And our job is to protect this business. 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 obviously, but I also have my med kit.”
Rittenhouse wasn’t a first responder; he was a volunteer. Some called the people who came to Kenosha to protect the community “vigilantes,” but they called themselves “guards.” Before the end of the night, Rittenhouse was attacked multiple times by what his defense lawyers called a “mob,” and he fired his rifle multiple times, killing two and injuring one.
The criminal complaint filed against Kyle Rittenhouse includes six charges. One is “possession of a dangerous weapon by a person under 18.” The others are far more serious: two counts of recklessly endangering safety, attempted first-degree intentional homicide, first-degree reckless homicide, and first-degree intentional homicide. Rittenhouse could spend the rest of his life in prison if convicted.
Rittenhouse has claimed self-defense. His lawyers released a video designed, in part to raise money for the legal defense, and in part to set the record straight. Perhaps surprisingly, the key details in the video comport well with the facts laid out in the criminal complaint. Both agree that 36-year-old Joseph Rosenbaum chased-down Rittenhouse and tried to take his rifle before Rittenhouse fired, fatally injuring Rosenbaum. Both accounts agree that people in the crowd shouted threats of violence at Rittenhouse who fled in response, pursued by angry elements of the crowd. Both accounts describe a young man named Anthony Huber striking Rittenhouse with a skateboard and attempting to take the rifle before Rittenhouse fired a single fatal shot. Both accounts agree that Gaige Grosskreutz was carrying a gun as he advanced on Rittenhouse who fired a single shot, wounding Grosskreutz and ending the attack.
Don West, criminal defense attorney and National Trial Counsel for CCW Safe says that because the defense and the prosecution agree on so many key details, “It’s really a question of interpretation of the known facts, or the spin that one part or the other has put upon it.”
And the “spin” is considerable. One group of voices is portraying Rittenhouse as a vigilante, associating him with armed militia groups with ties to white supremacists. Others view Rittenhouse as an American patriot who stepped in to maintain law and order when local officials failed to act. In a court of law, theoretically, neither of those perspectives should factor into a jury’s verdict. “The goal,” Don West says, “is to have an objective assessment of the known facts.”
Steve Moses, firearms instructor and CCW Safe contributor joined Don West and I recently to discuss the Rittenhouse case. Both agreed that, based on the information publicly available, Rittenhouse was very likely legally justified in using deadly force in self-defense -- that at the moment he pulled the trigger, each time, Rittenhouse had reason to believe he was in imminent danger of death or great bodily injury.
Regarding the first encounter, Steve Moses says, “When I looked at the two, Rittenhouse compared to Rosenbaum, Rosenbaum definitely looked like he was more physically capable. I believe that there was a very good chance Rittenhouse’s life was in danger.”
Don West says, “Even though Rosenbaum wasn’t absolutely armed at that moment, once he attacked Rittenhouse, once he threw something at him, once he chased him and then reached for the gun -- my thought is that Rittenhouse, regardless of all the circumstances under which he finds himself at that moment, would have a reasonable belief that a deadly force threat was imminent.”
Likewise, Don and Steve agree that the second and third shootings, which were clearly captured on video, appear justified as there is little question that Anthony Huber had attacked Rittenhouse with a skateboard and attempted to take his rifle, and that Gaige Grosskreutz was armed as he advanced aggressively towards Rittenhosuse. Don says, “When they’re yelling, ‘beat him, get him,’ chasing him, knocking him down, swinging a weapon -- the skateboard is clearly a weapon in this sense -- drawing guns, all in the context of him trying to get away . . . I think that Rittenhouse’s perception that they were his attackers and that they intended to seriously injure him or kill him is reasonable.”
While all of this may seem very cut-and-dried for a concealed carrier, it’s unlikely that Rittenhouse will get a jury of twelve concealed carriers. “Chances are,” Don says, “you will have a wide range of views on guns, on protests, on all of those hot-button issues that are present in this case.”
The prosecutors, very likely, will ask jurors to take a wider perspective of these shootings. They want jurors to step out of the moment when Rittenhouse pulled the trigger and focus on the fact the defendant intentionally drove across state lines, “running into harm’s way,” as Rittenhouse said, taking a conspicuous long gun into a situation where he knew he might have to use it. Prosecutors will certainly argue that Rittenhouse was breaking the law by being out after the emergency curfew, and for the illegal possession of a rifle as a minor. It’s quite possible that a jury may forgive Rittenhouse for each time he pulled the trigger yet hold him accountable for deliberately and voluntarily injecting himself into a dangerous circumstance in the first place.
Over the next several weeks, we’re going to explore the Rittenhouse case in more detail. We’ll question the wisdom, both legally and tactically, of carrying a rifle into a chaotic mob event. We’ll analyze each shot Rittenhouse fired, and perhaps more importantly, the shots he chose not to fire. And finally we’ll have a candid discussion about the potential consequences concealed carriers can face when they voluntarily insert themselves into dangerous situations.
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