In Self Defense – Episode 68: Kyle Rittenhouse Pt. 2

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In Self Defense – Episode 68: Kyle Rittenhouse Pt. 2

Don West frames the difficult legal defense Kyle Rittenhouse faces in the aftermath of the shootings in Kenosha, and Steve Moses explores the tactical liabilities of knowingly taking a conspicuous long gun into a volatile situation. 

TRANSCRIPT:

Shawn Vincent

Hey, everybody, this is Shawn Vincent. Thanks for listening in. Today is Part 2 of our conversation about the Kyle Rittenhouse case. Last week, we spoke with Don West. He’s national trial counsel for CCW Safe and a veteran criminal defense lawyer. We also spoke with Steve Moses. He’s a CCW Safe contributor, veteran of law enforcement. He’s a well-regarded weapons instructor, and we dug into this controversial case.

Shawn Vincent:

I’m certain you’ve heard of it. Kyle Rittenhouse, 17-year-old, lives in Illinois. He drove into, across state lines, Kenosha, Wisconsin, where there had been nights of rioting, looting, fires, businesses destroyed in the wake of the police shooting of Jacob Blake.

Shawn Vincent:

Ostensibly, Rittenhouse was there to provide help and to provide protection for businesses that were threatened with the violence. He spoke to a reporter the night of August 25th. He demonstrated that he had his med pack to help people with first aid, if required. He also pointed out that he was carrying a long rifle, in case he had to defend himself.

Shawn Vincent:

It turns out he did. Kyle Rittenhouse shot three people on the night of August 25th. He’s been charged with the homicides. His claim is self-defense. There’s video that’s been released in the news. The lawyers of Kyle Rittenhouse have released other video in an effort to raise money for his defense.

Shawn Vincent:

There’s a lot of politics surrounding this case. We’re trying to cut through the politics and focus on each self-defense incident on its own merits. Don West reminds us that in a court of law, a jury is going to be asked to look at each one of the shootings as an individual incident, and they’re going to have to decide whether it was justified based upon those facts. And so, in large part, we structure our conversation by breaking out each individual shooting.

Shawn Vincent:

Here’s what we talked about last week. We got Kyle Rittenhouse there in Kenosha. He is being chased by a 36-year-old named Joseph Rosenbaum. Rosenbaum, according to the video provided by Rittenhouse’s lawyers, had been setting dumpsters on fire and pushing them in towards businesses. It looks like Rittenhouse was part of a team that was trying to put out those fires.

Shawn Vincent:

Rosenbaum took issue with that and chased after Rittenhouse, got him cornered between two cars. A crowd was gathering. According to a reporter who is also a key witness to this, Rosenbaum had thrown something at Rittenhouse. He approached him aggressively. He tried to get his hands on Rittenhouse’s rifle, and when they’re in very close quarters, that’s when Rittenhouse shot several times. He struck Rosenbaum four times.

Shawn Vincent:

In the immediate aftermath, Rittenhouse called a friend, said he had shot somebody, appeared to be willing to provide aid. However, there are other people attending to Rosenbaum, who is now prone, dying on the ground. Once there were whispers from this group of people that they should retaliate against Rittenhouse for the shooting, Rittenhouse darts off, and while he’s retreating, elements of the crowd, passersby, begin to follow him and attack him. He has an encounter with multiple people in the street. He gets knocked down. They try to go for his gun, and then we have the second and the third shooting.

Shawn Vincent:

We’re going to begin our conversation today looking at the second shooting, which was the shooting of Anthony Huber, and we’re going to explore the third shooting and then talk about some of the larger themes that this case brings out, one being whether a gun owner or concealed carrier should ever intentionally put themselves in a circumstance where they know, with some certainty, that they may need to use their weapon in self-defense. And we’re going to talk to Don West about what are the key obstacles that Rittenhouse faces in his legal defense. Here’s my conversation, Part 2 of the Rittenhouse case with Steve Moses and Don West. Thanks for listening.

Shawn Vincent:

What do we think about this second shooting, this Anthony Huber? Anthony hit him with a skateboard, and now he’s trying to wrestle his rifle away. I mean, if the first one was justified, I see this one as justified based on what we know and what we saw as well. I mean, it’s up to a jury at this point, right?

Don West:

Mm-hmm (affirmative).

Shawn Vincent:

But I think there’s a strong case to be equivocal since there’s a lot we don’t know. I think he’s got a strong case that if that guy had gotten his rifle, he was in for a world of hurt.

Don West:

And I think even perhaps more so than in the Rosenbaum shooting. Rittenhouse would have every reason to believe that all of these guys were in it as part of a joint attack. They were just taking their own turns and that he was essentially fighting all of them. The first guy that tried to kick him, that didn’t knock him out, was followed by Huber, who was able to get his hands on him, hit him with a skateboard, pull on the gun.

Don West:

I think all of that is consistent in the bigger picture with Rittenhouse reasonably believing he was facing a life-threatening attack. So, sure. Keep in mind it’s really Rittenhouse’s perception, notwithstanding what Huber may have actually been intending to do. He could have simply intended to-

Shawn Vincent:

Disarm him.

Don West:

… use the skateboard, yeah, as part of his attempt to disarm him without ever intending to seriously injure him or kill him. But that is one scenario, but certainly not the only scenario, and certainly Rittenhouse would have a reasonable belief that that wasn’t necessarily the only thing that was going to happen. I don’t think that’s a hard call, actually, under these circumstances.

Shawn Vincent:

To call them justified? Yeah. And then the third one, where you got a guy with a gun coming up to him in an aggressive way, does the gun make that an easier call even yet?

Don West:

Probably. I guess I’ll do it the other way around. The fact that he only shot him once, that is, that Rittenhouse shot Grosskreutz once and clearly neutralized the threat, he just happened to hit him in the gun hand and he didn’t keep shooting, I think suggests that Rittenhouse did the things that someone would be expected to do in the face even of a deadly force threat, neutralize the threat and then stop.

Shawn Vincent:

And then once the threat retreated, he’s done. Yeah.

Don West:

Yeah, yeah. And likewise, with the guy with his hands up behind him, remarkably at age 17, under these circumstances, it’s pretty remarkable to me. And, thankfully, Rittenhouse had the wherewithal not to just start firing into the crowd that he reasonably perceived were coming to get him. And all of that, I think, helps him.

Don West:

I guess let me circle back and say, and I think all of those things that he didn’t do, that he didn’t continue to fire, that he didn’t fire wantonly or randomly into the crowd, all of that, I think, goes back to help him justify the use of deadly force in those instances that he did.

Shawn Vincent:

Yeah. Steve, I was going to ask you on this because we talked earlier and I mentioned that Richard McGinnis, the reporter, seemed to suggest in a news report that Rittenhouse didn’t seem to handle the rifle particularly competently. But from what we see in that video, he seemed to get the job done, if he believed he was really under attack there. All the preamble and postamble and the wisdom of having it in that situation aside, he was facing a lot of people who were aggressive at him and he walked out of there relatively unharmed.

Shawn Vincent:

So, Don, legally he’s facing a lot of charges. And one thing I wanted to ask, does he have to be justified in shooting Rosenbaum, the first guy, to be justified for the next two? As a defense attorney, what do you think his biggest challenge is going to be?

Don West:

That’s an interesting question. I have to reflect on that a moment. In some ways, like some of these other high-profile cases that we’ve talked about or been involved in, one of the big challenges of his defense lawyer is going to be the misinformation that’s out there in the media that sort of taints the jury, because ultimately, his fate will be decided by 12 people who have been exposed to the media, both good and bad, for Rittenhouse.

Don West:

In addition to the circumstances, he was by all accounts illegally in possession of that gun as a 17-year-old. Under Wisconsin law, he’s really not allowed to possess a gun, and there’s some dispute and some controversy about that. The statutes that apply are somewhat ambiguous, with exceptions for hunters and all sorts of things.

Don West:

But I think the bottom line ultimately will be is that he’s guilty of that misdemeanor crime of illegally possessing that firearm. He was also brazenly and blatantly violating the curfew, as were many, many others, he was also there. There was a state of emergency in Kenosha. So he has some of that that people will latch onto.

Don West:

I know when we’ve talked about the Zimmerman case and some of the other high-profile cases, what seems to persuade people a lot of times about the guilt or innocence of individuals has almost nothing to do with the actual facts of the case. Zimmerman got out of the truck when he wasn’t supposed to, or he was told not to follow him, and he did –, stuff that really wasn’t factually true, but things that made such an impression that it clouded the judgment on the significant facts and significant issues.

Don West:

I think some of those things are going to be challenges for the defense lawyer, but you can tell when you referenced that video early on and some of the news outlets that have been championing Rittenhouse for reasons far beyond him legally defending himself, but justifying that he was there because the government had failed to protect the businesses and the citizens, making it a huge political wave, and that the defense lawyers and team have already started to try to shift the narrative.

Don West:

All of that aside, I think one of the things will be focusing the jury on each individual shooting victim as being distinct and separate. Some commentators have talked about this being one continuous event. I don’t think it was. I think the shooting of Rosenbaum was distinct and separate and will be judged distinctly and separate from the shooting of Huber, even though they’re connected.

Don West:

But I think if he’s not justified in Rosenbaum and he’s convicted of something maybe less than what he’s actually accused of, a lesser degree of criminal homicide, that would not in and of itself preclude the jury from finding him not guilty on the other counts that relate to Huber and Grosskreutz. Think those are separate, and the analysis is separate.

Shawn Vincent:

I think there’s a real possibility here, though, because juries are allowed, they’re given instructions, but juries ultimately decide how they’re going to judge a defendant. I think you’re right in that the defense has to keep this, as much as possible, on each individual charge and each individual event. And they’re going to want the jury to look at that with the shortest time span possible. Right?

Shawn Vincent:

And I say this because I think it’s very possible that you give a jury who might find by the facts of the law that Rittenhouse is justified in each one of those individual shootings, but will find themselves unable to forgive him for traveling across state lines, taking on a long rifle, and going to a place where he knew there was a strong possibility that he’d get in a confrontation where he needed to use it, and they’ll hold him morally responsible for it.

Don West:

Yeah. I think that’s an excellent point, that he’s already guilty of something because it all goes back to him and his decision to show up there with that gun. And there will be people that feel compelled and justified in their own minds to say two people would be alive and another one would have the use of his arm if Rittenhouse had made a better decision early on, and will want to hold him legally accountable for those decisions, even if factually and legally at the moments he pulled the trigger, it was justifiable use of deadly force.

Don West:

I think that’s a big, big problem when the narratives in the media are dripping and just drenched in political agenda, individual stakeholders in the outcome, and that the jury is going to be really challenged, I think, to focus on the facts. And, of course, keeping in mind that the 12-person jury that decides Kyle Rittenhouse’s fate will not be the ones that the lawyers choose. It’ll be the ones that the lawyers didn’t get rid of and . . .

Shawn Vincent:

Or couldn’t get rid of.

Don West:

Or couldn’t get rid of, and chances are you will have a very wide range of views on guns, on protests, on all of those hot-button issues that are present in this case. And it’s going to be a huge challenge, I think, for Kyle Rittenhouse to get a fair trial. And what I mean by that is true due process, and that is that his fate is legally determined based on analysis of the law . . .

Shawn Vincent:

The relevant facts.

Don West:

… and evidence without … Yep, exactly.

Shawn Vincent:

Steve, I want to ask this question. We’ve talked before, and you were involved with law enforcement and you used to be part of, is it fair to say, tactical teams that would go serve warrants in situations that have the potential to turn ugly?

Steve Moses:

Yes, sir.

Shawn Vincent:

Yeah. And so there is a circumstance where you are arming yourself and putting yourself in danger.

Steve Moses:

Yes.

Shawn Vincent:

And in those cases, you did that as a … What’s the right term when you’re …

Steve Moses:

Well, I was a member of the special response team primarily. And then on a few occasions, when I worked on a warrant team and we picked up people that had bench warrants out for them.

Shawn Vincent:

Sure. And so I guess the political debate here … And that’s a choice that you made, and you did it in a way that was legal, and it’s the way our civilization has decided to take care of those types of issues, right?

Steve Moses:

That is correct.

Shawn Vincent:

And it was your job. And I don’t want to get involved in the politics of right or wrong, Rittenhouse’s choice, or the way he felt that he needed to help protect these businesses . . . but here’s what I’m getting at: Is a gun owner who decides to leave a place of safety to go to a place where it is not safe . . . You talked earlier in this podcast that there are circumstances that can be imagined where you have to do something that you put yourself in danger, and then you have your firearm to defend yourself. But putting yourself in that danger is such an extraordinarily huge life or death important decision to make.

Steve Moses:

Absolutely, absolutely. It should not be entered into lightly. The consequences are just enormous if something goes wrong, and as we’ve seen here, and even in other cases we’ve discussed, there’s so many different things that can go bad that it’s even hard to imagine what they all might be. And so the very best choice is to do what you have to do to take care of yourself, your family, your property that you possess, to the extent that it’s lawful, but otherwise it’s just almost never a good idea to go be the hero.

Shawn Vincent:

Yeah. And get a good insurance policy and keep it up to date, right?

Steve Moses:

Yeah, absolutely.

Shawn Vincent:

And, Don, I think if I recall from the criminal complaint, I think some of these charges against him — he could face up to 60 years in prison?

Don West:

It’s so much time. There’s so much time associated with these charges, that if he’s convicted of anything, he’s going to spend a significant part of his life in prison. He’s being tried as an adult. A moment on that, he’s 17 years old when this event took place, so technically he’s a juvenile, but in most states, while there would be a juvenile court process available for other 17-year-olds that were charged with various juvenile offenses which equate to criminal offenses as adult, in many instances the prosecutor has the discretion, based upon the charge and the age of the juvenile, to prosecute as an adult.

Shawn Vincent:

Yeah.

Don West:

And if-

Shawn Vincent:

I guess I’m getting at here is-

Don West:

… convicted, he would be treated as-

Shawn Vincent:

As first degree, reckless homicide conviction, maybe sentenced to a term of imprisonment, not to exceed 60 years. So, one conviction on that and the kid could be like 77 years old when he gets out of jail. I mention this just to underscore the gravity of the decision that accompanies grabbing your rifle and going to defend somebody’s property.

Don West:

These charges carry huge potential penalties, including the count one that you’re talking about against Rosenbaum, because of the nature of the charge, reckless homicide, use of a dangerous weapon, that’s up to 60 years. But he’s charged with first degree intentional homicide as well in reference to Anthony Huber and that’s a life sentence. If I’m not mistaken, that’s a mandatory life sentence. And he’s got other charges that relate to McGinnis, a lesser charge, but still punishable by up to 12 years in prison, I think, and then additional enhancers. The charge against him relating to shooting Grosskreutz-

Shawn Vincent:

And those could all pile up one on top of another.

Don West:

… gets up to 60 years as well. Yeah. They’re all independent, separate offenses that have to be proven. Each element of each offense has to be proven. Now self-defense would be, or justifiable use of force would be a defense to all of them, except for the possession of the gun. Well, and maybe … Geez, I’m not sure now regarding McGinness, the reporter. He’s charged with this reckless endangerment thing. I would assume that self-defense would also help him there, although I don’t know, because I don’t know enough of the facts, how McGinness became an alleged victim of that.

Don West:

But yeah, each of these are tried separately. Each of the elements have to be proven separately, but upon conviction, I think the sentencing court would have the discretion to impose the sentences concurrently or consecutively. But frankly, if you have a mandatory life sentence, it hardly matters what happens with the other  . . .

Shawn Vincent:

And 60 years is essentially life.

Don West:

Yeah. And if there’s anything that we have tried to reinforce during the course of our discussion of these various cases is that there becomes a point in time where you lose control of what happens to you. You may have control up to a point. There may be these moments where you could go a different direction, but once you’re all in, you’re all in and you have no control. Kyle Rittenhouse cannot control what charges he’s facing. He can’t control whether he’s going to get convicted. He can have good lawyers do their very best, but that’s all they can do.

Don West:

And I would hope that the jury would see this ultimately the way we were seeing it based upon the information that we have, but he can’t control that either. And the jury in these political times, who knows, who knows? I do know, though, the next couple of years, year and a half, is going to be the worst couple of years that Kyle Rittenhouse has spent in his short life so far. And let’s hope that’s the end of it.

Shawn Vincent:

Yeah. Stevie-

Don West:

I’m sorry. I didn’t mean the end of his life, obviously. I mean, the end of the trauma in the ordeal. What happened to him that night and what is happening to him now will be life-changing, honestly.

Shawn Vincent:

Yeah.

Don West:

He’ll never get past all of this, even if he’s ultimately acquitted.

Shawn Vincent:

And, Steve, one of the new lessons I’ve got from this … You recall the Zach Peters case, where the kid who was at home, they broke into his house and he warded them off.

Steve Moses:

The three. Mm-hmm (affirmative).

Shawn Vincent:

He warded them off with an AR-15 style rifle.

Steve Moses:

Correct.

Shawn Vincent:

And I think that that case doesn’t make national headlines if he had used the Glock, if he had a pistol instead of the rifle …

Steve Moses:

That’s very possible. The flip side of that is that when it actually comes to defending yourself and your family, an AR-15 type rifle or similar semiautomatic rifle, the detachable box magazine, is far more effective-

Shawn Vincent:

Sure.

Steve Moses:

… than a handgun. It has a greater deterrent effect than a handgun. You can use it in a more surgical manner, if that’s necessary, in order to limit the possible danger to others. There’s a reason that tactical teams will, if they are, have to take down a one-bedroom apartment, still multiple people within that tac team will probably be using rifles. And that’s just because a rifle is just so much more effective at stopping a deadly threat quickly than a handgun. I’m very much in favor of rifles. I think they have their place. I just don’t think carrying a rifle out in public, especially in a mass protest situation, is a good idea for anybody.

Shawn Vincent:

Well, and I’m glad you made that distinction, because once you’re outside of your house, the … Inside your house, it has that amazing deterrent value. Outside of the house, it attracts unwanted attention to you. And it’s something that you can’t conceal.

Steve Moses:

It does. And, of course, for people that live in rural areas and everything where stuff can actually happen at a greater distance, or also just even for predator control, it very much has a place in there. It’s just that to go and carry a long gun in a public setting, especially in an urban area, I think a big part of that is to just, I hate to say this, draw attention to yourself.

Shawn Vincent:

Yeah. And then if you’re in a close-quarters conflict with a lot of people, you’re much more at risk at losing control of the rifle than you would be a pistol.

Steve Moses:

That’s even true if it’s just one person.

Shawn Vincent:

If it’s just one person.

Steve Moses:

That’s true if it’s even one person. And a lot of concern about people having their firearms taken away from them. In the police academy, you’re taught that every encounter you go to has the potential of ending up in a gunfight because you’re bringing the gun. And there’s a reason that police officers use holsters that have either level two or level three retention devices, and that reason is to prevent the handgun from being taken away from them easily.

Steve Moses:

That’s a very dangerous weapon. The assumption is, is that if someone just physically attempts to take your handgun away from you, there’s a strong likelihood that their intent is to use it against you. Doesn’t mean that you have to always, oh, my gosh, he’s going for my gun. I need to kill him. It means I need to defend myself. If I can defend myself without using deadly force, that’s all the better, but I need to be prepared to use deadly force because I don’t know what the outcome of this is going to be.

Shawn Vincent:

Don, is there anything that we haven’t talked about you think’s relevant to mention to the CCW Safe members?

Don West:

This is a hard case because what we haven’t … I don’t mean a hard case legally. I think it’s fairly straightforward legally and factually. And even though there are lots of things floating around that people will latch onto to criticize Kyle Rittenhouse, and for good reason in large part, I think when you focus specifically on the events and the acts that he was justified under those circumstances that he never should have been involved in to start with, but once he got involved in them, that he was attacked and that he had the right to defend himself, unfortunately, with the outcome, not just to those that he shot, but then ultimately to him as well.

Don West:

What’s so hard is that when your community is threatened … These protests resulted in the majority, as they say, peaceful protests, but there was what could reasonably be called rioting. There were businesses burned. There was a car lot where something like 50 cars were destroyed that had gone on for a while. And Kyle Rittenhouse and his others went there really thinking they were needed.

Don West:

And I suppose that was driven in large part by their perception that the community was being let down by those who had the responsibility to protect persons and property. So they went there, as they call themselves “guards,” others call them “vigilantes.” They may have been very well-intended to keep property from burning and people from being injured.

Don West:

But, see, what do you do? I know we talk about, well, you just shouldn’t go there with the gun. Is that what the bottom line is, that the suggestion is that it’s going to be volatile, somebody is likely to get killed, somebody is likely to get arrested? And even though there may be threats to property and people, responsible concealed carriers, those that have even some training with firearms, should simply let the government do their job for better or for worse and not involve themselves. And I just, I don’t know how to respond to that because of the good intentions that once again went so tragically wrong.

Shawn Vincent:

I guess you just have to be prepared. You just have to be realistic about what the consequences are if it goes off the rails. I mean, if you decide that it’s worth me taking somebody’s life and worth potentially spending the rest of my life in jail, and if you look at that and say, “If I’m sitting in jail on year 30 of my 65-year sentence, am I still going to feel like this was the right thing to do?” then I guess if you’ve made that calculation, you can say “yes” to that.

Shawn Vincent:

But, Steve, you were about to add in and I cut you off.

Steve Moses:

Well, my belief is, is that the threat can come from all different directions, in all different forms, and that we’re just as likely to have an issue with a carjacker or a mugger, an armed robber, as we are with encountering violent people within a mob. My recommendation is, is any time that a concealed carrier can lawfully carry, that they do exactly that.

Steve Moses:

In terms of that saying that I’d said earlier, if it’s too dangerous to go there without a gun, it’s too dangerous to go there with a gun, basically what that means is that having a gun does not necessarily reduce the danger to you. It doesn’t make things more likely to turn out in your favor. You’re still at risk, but there just may be times that we have to go and do something that we really don’t have any other choice but to go do.

Steve Moses:

And if indeed that’s going to be the case, then anything we could kind of do to be the gray man, that is, to kind of go under the radar, not call attention to our person and make the very best decisions that we can under the circumstances and then act upon it, that would be my recommendation.

Shawn Vincent:

Meaning if Rittenhouse had a pistol that was concealed and it stayed concealed, or maybe if he weren’t armed at all and just brought his med kit, there’s the possibility that he never would have needed his rifle in the first place?

Steve Moses:

Well, absolutely. And the very fact that he felt like he needed to be armed was just a clear indication that he thought it was a dangerous situation, and so let’s kind of look back at this. Okay, he’s a 17-year-old kid with a med kit. There are riots going on in a community and which the community itself is not going to great efforts to suppress. You’re probably in an environment that is not friendly towards the actions of concealed carriers. That’s a lot of danger signals.

Shawn Vincent:

Yeah.

Steve Moses:

As I’m sure he would agree now, best thing he could have done was stay home.

Shawn Vincent:

Don, are you surprised they charged this case the way they did?

Don West:

I don’t think so for a couple of reasons. One, I think that the circumstances demanded a decision. Not that I agree with the decision, but I think the circumstances demanded it because of the political context. I’m also not surprised that they charged him the way they did without thorough investigation because of that same reason or the charges that were filed without that same reason.

Don West:

What I was a little surprised at, frankly, was what I thought was a pretty detailed complaint in support of the charges that track pretty well with the things that we’ve talked about. It even tracked pretty well with the video that Rittenhouse’s lawyer has compiled, that says far more about self-defense than a lot of the complaints do. I remember back in the day of the Zimmerman probable cause affidavit was ridiculous in the context that it supposedly supported this charge of second degree murder, but had almost no reference whatsoever to any self-defense type evidence that clearly existed and was known.

Don West:

I didn’t see that here. It looked to me that most of what they knew was in there to be interpreted, keeping in mind, of course, that self-defense is an affirmative defense, which means it has to be raised and shown to some degree in order for the jury to consider it. So, it doesn’t surprise me that the prosecutor either discounted that or didn’t even really factor it in on their decision whether to charge him.

Don West:

He did shoot all these people. There’s no doubt about that. It seems pretty clear to me that he had a pretty good reason to do it under the circumstances. But, no, I’m not surprised when you put it all together how this came out. Disappointed, I think, but not surprised.

Shawn Vincent:

All right. That’s the end of our podcast today, guys. Thanks for listening through to the end. This is a big case. You can be certain that we’ll be following it and we’ll be talking about it again. Until then, be smart, stay safe, take care.