Rittenhouse Trial Coverage by Andrew Branca: Should Misdemeanor Gun Charge Just Be Dismissed?

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. 

Rittenhouse: Should Misdemeanor Gun Charge Just Be Dismissed?

Hey folks,

Welcome to our ongoing Law of Self Defense coverage of the criminal trial of Kyle Rittenhouse.

As you all know, Kyle Rittenhouse has been charged with a number of crimes for his conduct in Kenosha WI on the night of August 25, 2020, amidst violent rioting in the city fomented by elements of Antifa, Black Lives Matter, and sympathizers of those groups.

Most of the charges against Rittenhouse are serious felonies, including the charge of first-degree reckless homicide for the killing of Joseph Rosenbaum, first-degree intentional homicide for the killing of Anthony Huber, attempted first-degree homicide of Gaige Grosskreutz, and two counts of first-degree reckless endangerment. 

The intentional homicide charge carries a sentence of life in prison, the attempted first-degree intentional homicide charge and the reckless homicide charges carry a sentence each of 60 years in prison, and the reckless endangerment charges carry a sentence each of 12 years in prison. (All these sentences would be supplemented by an additional five years because of the gun use enhancement).

Then we have this odd little outlier gun charge—possession of a dangerous weapon by a person under 18, per WI statute § 948.60. Possession of a dangerous weapon by a person under 18.  This is a class A misdemeanor under Wisconsin law, punishable by up to 9 months in jail and a fine of up to $10,000.  If this were the only charge on which Rittenhouse were convicted, and given that he has no prior criminal history, he may well face no jail time whatever and only a relatively modest fine. 

The bringing of this relatively modest charge, then, raises a couple of interesting questions.

The first question is, upon close examination does it appear that evidence exists to support probable cause to believe that Kyle Rittenhouse even violated this gun law at all? 

More specifically, the defense is arguing that a plain-English reading of the statute rather obviously excludes the conduct of Rittenhouse on the night of August 25, 2020.  Accordingly, the defense filed a motion with Judge Schroeder to have this particular misdemeanor charge dismissed, and the arguments made on October 5, 2021 around this motion are what we cover here in today’s content.

In response to the defense argument for dismissal, the State argues that the court should read beyond the plain-English of the statute and apply a less concrete interpretation of legislative intent to find the statute applicable to defendant Rittenhouse.

So, that’s the first question: Does the charge even apply to Rittenhouse as a matter of law.

The second question is, even if a rational argument exists for finding Rittenhouse criminally liable under this statute, why is the prosecution pursuing this mere misdemeanor gun charge when has already charged Rittenhouse with no fewer than five serious felonies, three of which would put Rittenhouse in prison for much of, or for the entirety of, the remainder of his life?

More specifically, does the prosecution simply have such a lack of confidence in the felony charges that it’s throwing in this misdemeanor as a “safety charge” to try to ensure at least some level of conviction of Rittenhouse?  Or might there be a more clever—or, arguably, more sinister—motive to the inclusion (and rigorous defense) of this charge by the state?

So, let’s address each of those in turn, beginning, naturally, with the first question.

Also, given how lengthy this analysis turned out, we’ll be dealing with it as a two-parter in terms of content, with each part dealing with one of the two key questions raised by this gun charge.

Part 1, this part, will cover whether the gun charge is at all applicable to Rittenhouse on the legal merits in the first place.

Part 2, coming next, will address the second question of exploring why the prosecution is pursuing this apparently minor misdemeanor gun charge against a defendant already facing five serious felony charges.

So, without further ado, let’s dive into that first question.

Is the Gun Charge At All Applicable to Rittenhouse in the First Place?

Perhaps the single greatest complication in understanding whether this gun charge under § 948.60 is at all applicable to Rittenhouse in the first place is that the statute itself is full of various conditions and exceptions that go on to reference other statutes that themselves are full of various conditions and exceptions.

One important provision of § 948.60 reads as follows:

(2)(a) Any person under 18 years of age who possesses or goes armed with a deadly weapon is guilty of a Class A misdemeanor.

Kyle Rittenhouse was only 17 years of age at the time of these events, so he certainly meets the “under 18” criteria of §948.60.

He was also certainly in possession of a deadly weapon, in the form of the AR rifle, as learned so fatally by Joseph Rosenbaum (reported child molester) and Anthony Huber (reported domestic abuser), and with maiming consequence by Gaige Grosskreutz (reported weapons criminal) when they made the ill-informed decision to attack an armed person.

So, does that mean that Kyle was committing a Class A misdemeanor under § 948.60?

Well, I suppose, if those were the only conditions of §948.60 that must be met in order to have committed the specified Class A misdemeanor.

But they are not the only conditions of §948.60. Which is why it’s always important, especially in the context of statutory construction, to “read the whole thing.”

Other provisions of §948.60 relevant to the facts of Kyle’s possession of the rifle can be found in paragraph (3)(c), which reads in relevant part:

(3)(c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593 …

OK, so even if a person under 18 years of age triggers the conditions of paragraph (2)(a) of § 948.60, they’ve still not committed a violation of § 948.60 unless they also trigger the conditions of paragraph (3)(c) by violating either § 941.28, which pertains to short-barreled rifles, or are not in compliance with § 29.304 and 29.593, which pertain to hunting and use of firearms.

Well, was Rittenhouse in violation of § 941.28 or was he not in compliance with § 29.304 and § 29.593?  If the answer is “yes” to any of those, Rittenhouse appears liable to misdemeanor conviction under § 948.60.  But if the answer is “no” for all of those, Rittenhouse appears not subject to § 948.60 at all.

Let’s take a look first at §941.28. Possession of short-barreled shotgun or short-barreled rifle.

In summary, for our purposes here, § 941.28 paragraph (2) makes it a felony for anyone to possess a short-barreled rifle, which the statute defines in paragraph (1)(b) as:

a rifle having one or more barrels having a length of less than 16 inches measured from closed breech or bolt face to muzzle or a rifle having an overall length of less than 26 inches.

In this case, however, not even the prosecution is arguing that the AR rifle possessed by Rittenhouse qualifies as a short-barreled, so Rittenhouse cannot be liable under § 948.60 based on this provision of § 941.28.

That leaves the possibility that Rittenhouse was “not in compliance” with the hunting and use of firearms provisions of § 29.304 or § 25.593. 

Let’s first consider the first of those hunting and use of firearms provisions, §29.304. Restrictions on hunting and use of firearms by persons under 16 years of age.  The subsections of this statute place various degrees of restriction on hunting and the use of firearms by persons who are under 12 years of age, who are between 12 and 14 years of age, and who are between 14 and 16 years of age, respectively. 

The question is then, was Rittenhouse “not in compliance” with this statute.

The defense argument, presented by Attorney Chirafisi, is straightforward, and based on a plain-English reading of the § 29.304—the statute applies only to persons “under 16 years of age,” and Rittenhouse was 17 years of age on the night of the events of August 25, 2020.  In short, then, the defense argues Rittenhouse cannot be “not in compliance” with § 29.304, because by definition § 29.304 simply does not apply to 17-year-olds at all.

Judge Schroeder expressed objections to this interpretation of § 29.304, however,

in terms of “the exception swallowing the rule.” 

A basic presumption of statutory interpretation is that the legislature must have had some rational purpose in creating the statute in the first-place.  If a plain-English reading of the statute results, apparently irrationally, in the statute having no effect, then it falls to the court to read past the plain-English reading of the statute to attempt to discern some rational legislative intent behind the statute.

A simple example would be a statute that provides the rule that “No one may ride a bicycle over 100 miles per hour within the city limits,” followed by the exception that “This provision shall not apply within the city limits.” 

When one applies the exception there is nothing left of the rule—the exception has “swallowed” the rule.  A plain-English reading of this hypothetical statute makes it pointless—but surely a rational legislature had some intent behind this statute, and ought the court not read past the plain-English reading to discern that intent.

In the case of Rittenhouse, Judge Schroeder is apparently troubled by the notion that the title of § 948.60 reads “Possession of a dangerous weapon by a person under 18,” but that the application of the exception referencing § 29.304 completely excludes anyone who happens to be under 18 years of age but over 16 years of age—such as (then) 17-year-old Kyle Rittenhouse. 

In Judge Schroeder’s view, the “exception” that effectively excludes everyone who is 17 years of age appears to “swallow” the “rule” apparently intended to apply to everyone under 18 years of age.  This apparent irrationality suggests that there must be some hidden intent behind these partnered statutes that would allow them to apply to a 17-year-old.

Frankly, this seems to me an unconvincing view of the matter, because in fact the “exception” does not entirely “swallow” the “rule.”  A 17-year-old can still be found in violation of § 948.60, as a person under 18 years of age, by violating the statute without falling into the exception.

For example, had 17-year-old Rittenhouse been in possession of a short-barreled rifle (one with a barrel of less than 16”), he would have been in violation of § 948.60 despite his age of 17 years.  The “rule” remains “unswallowed,” despite the “exception.”

Similarly, had 17-year-old Rittenhouse been engaged in hunting and not in compliance with § 29.304 or § 29.593, he would have been in violation of § 948.60 despite his age of 17 years. Again, the “rule” remains “unswallowed,” despite the exception. 

Judge Schroeder would counter my own view here by arguing that the real “rule” of concern here is a generalized intent by the legislature to prohibit persons under 18 years of age from walking around in public with deadly weapons, simply as a matter of public policy, and that the defense reading of the exclusion leaves that rule “swallowed” in the context of 17-year-olds—and this cannot have been the legislature’s intent.  The problem with this view is that this supposed public policy “rule” is never explicitly stated in § 948.60, so claiming this unstated “rule” requires discerning the ambiguous legislative intent of a legislature that no longer exists.

Here’s the exchange between Counselor Chirafisi and Judge Schroeder on this argument as presented at the October 5, 2021 evidentiary hearing:

For what it’s worth, Assistant District Attorney Binger himself appears to largely concede that that § 29.304 does not apply to Rittenhouse, for the reasons stated by the defense—by its own plain-English reading § 29.304 does not apply to 17-year-olds, and one cannot be found to be in “non-compliance” with a statute that doesn’t apply to you in the first place. 

He does, however, hedge his bets by arguing that § 29.304 was intended to apply only to hunting activities, and Rittenhouse was not hunting, so Rittenhouse should qualify for the exception of § 29.304—but this is not an entirely coherent argument.

As for the second hunting-related statute, § 29.593, non-compliance of which could make Rittenhouse subject to misdemeanor conviction under § 948.60, the defense argues that § 29.593 applies only to hunting activities, that Rittenhouse was clearly not engaged in hunting activities, and therefore § 29.593 does not apply to Rittenhouse any more than does § 29.304.  In short, once again one cannot be found to be in “non-compliance” with a statute that doesn’t apply to you in the first place.

This is where ADA Binger focuses his own argument that Rittenhouse is liable under § 948.60, however, precisely on the grounds that Rittenhouse did “fail to comply” with § 29.503.

More specifically, whereas the defense argued that Rittenhouse cannot be in non-compliance with § 29.503 because he was clearly not engaged in hunting, ADA Binger argues that Rittenhouse was by definition not in compliance with § 29.503 precisely because he was not engaged in hunting.

ADA Binger concedes that Rittenhouse could never be found not in compliance with the previous hunting statute, § 29.304, because it applies only to people under the age of 17 years, and Rittenhouse was 17.  As a 17-year-old it was simply impossible for him to be in compliance with § 29.304, and one cannot be expected to do the impossible.

This second hunting statute, however, § 29.593, has no particular age restriction relevant to the facts of this case, and so in theory Rittenhouse could have met the conditions of this hunting statute—for example, by obtaining a hunting certificate or license.  And because Rittenhouse could have met, but did not meet, the conditions of § 29.593 he was effectively “not in compliance” with the statute, thus triggering liability under § 948.10. 

ADA Binger then argues that if the court declines to adopt this interpretation, then the “exception” would indeed have “swallowed” the “rule,” clearly an effort to play into Judge Schroeder’s own stated concern earlier in this discussion—but as I’ve already noted, this is not really true.

Here’s ADA Binger’s argument as presented at the October 5, 2021 evidentiary hearing:

Ultimately Judge Schroeder declined to grant the defense motion to dismiss this misdemeanor gun charge, not on the actual legal merits of the argument but simply because he wanted more time to consider those arguments.

On his own concerns about “the exception swallowing the rule,” Judge Schroeder himself noted that sometimes the legislature deliberately creates law with this intent, however irrational it may appear, as part of the political “sausage making” of statutory law. Certainly, Judge Schroeder expressed awareness of other demonstrable instances of the legislature having done precisely this.  So, if the “swallowing” was intentional, there’s really no need to dig further into “legislative intent”—it’s right there before us.

Judge Schroeder also raised a broader, and arguably more compelling basis for granting the defense motion to dismiss the charge—and that is on the grounds of vagueness.

There is a fundamental doctrine of US Constitutional law—based in the due process provisions of the 5th Amendment and incorporated (or applied) to the states through the 14th Amendment—that a law is unconstitutional and invalid if a normal person reading it would be unable to understand precisely what conduct was being deemed unlawful.  Such a law is deemed “unconstitutionally vague,” and without effect.

In the October 5 arguments on this issue of the gun charge under § 948.60, Judge Schroeder stated:

“I’m going to deny the motion for now, but that’s no guarantee I won’t re-examine this. I just don’t, I don’t feel comfortable. It’s a penal statute, and to hold people accountable for laws that, well, the basic rule, and there’s plenty of interpretation on it, but the basic concept of the rule is that it has to be clear to ordinary people. And if you’ve got, you know, judges spending hours here, and hours more at an appellate level, trying to figure out exactly what the statute says, I mean, how does that serve the people? So I’m going to deny the [defense] motion [to dismiss the misdemeanor gun charge under § 948.60] subject to reconsideration without motion [without requiring the defense to object again to the charge].  I want to give more study this. And believe me it’s not because I haven’t looked at it extensively at this point.”

This commentary suggests to me there is a strong argument that Judge Schroeder will dismiss this charge simply on the basis of unconstitutional vagueness, without ever having to get to the legal merits of the arguments on this charge.

Should he have to get to the legal arguments, however, it’s my own professional opinion that a plain-English reading of § 948.60 excludes application to Kyle Rittenhouse on the legal merits.

OK, folks, that’s all I have for you on this first question of this analysis, of whether the gun charge is at all applicable to Rittenhouse on the legal merits in the first place.

In Part II, we’ll address the second question—exploring why the prosecution is pursuing this apparently minor misdemeanor gun charge against a defendant already facing five serious felony charges.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

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.

Law of Self Defense © 2021

All rights reserved.

ANDREW BRANCA 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.