Kyle Rittenhouse’s lawyers have argued that he clearly acted in self-defense when he shot three people — two fatally — at a protest in Kenosha late last month.
The success or failure of a potential courtroom self-defense claim, however, could hinge on questions about the teen’s actions before he fired and details that have yet to emerge, defense lawyers in Wisconsin said. As in other states, the law in Wisconsin allows people to use guns to defend themselves against serious threats, but there are exceptions to that right.
One potential key issue: Could prosecutors show that Rittenhouse, 17, of Antioch, committed an unlawful act that provoked attacks on him? If so, the law holds that he would have to show he exhausted his chances to flee or otherwise avoid being harmed before shooting, attorneys said. And whomever was the aggressor, Rittenhouse would have to show he reasonably believed he had to shoot to prevent his death or serious injury.
Milwaukee defense attorney Craig Mastantuono, who has handled self-defense claims, told the Tribune it could be challenging for Rittenhouse’s lawyers to successfully argue self-defense when neither of the men killed is said to have carried a gun or other clearly lethal weapon. Video shows that one of the men who died had a skateboard, and prosecutors wrote that video indicated that a third man Rittenhouse wounded had a gun.
“Anybody claiming that this is clear-cut self-defense is way premature,” Mastantuono said. “The evidence still has to come in and witnesses still need to be spoken to and the video isn’t the only evidence.”
Attorney John M. Pierce, whose firm has represented associates of President Donald Trump, took Rittenhouse’s case and issued a statement days after the shooting that casts the people shot as attackers and said the teen “exercised his God-given, Constitutional, common law and statutory law right to self-defense.”
When reached by the Tribune, Pierce asked for emailed questions but did not respond to them.
The politically charged conversation around Rittenhouse’s case has centered largely on videos that prosecutors allege show the teenager shooting three men with an AR-15-style rifle Aug. 25 during violent protests over white police Officer Rusten Sheskey’s shooting of 29-year-old Black man Jacob Blake a couple of days earlier.
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The Wisconsin Department of Justice, which is investigating the shooting, has said Blake admitted to possessing a knife, though not whether he wielded it during the confrontation. Investigators recovered a knife from the floorboard of the SUV that Blake was driving. Blake’s family has said he is paralyzed from the waist down.
Videos show that Rittenhouse was among numerous civilians armed with rifles who interjected themselves into the protests, property destruction and looting that followed Blake’s shooting. Kenosha County prosecutors have charged Rittenhouse with murder, first-degree reckless homicide and four other counts.
Some conservatives and gun rights advocates immediately defended Rittenhouse. For example, Fox News host Tucker Carlson said Rittenhouse “decided to maintain order when no one else would.” Trump said the teen was “in very big trouble” and “probably would have been killed” during the confrontation.
Liberal commentators have argued that Rittenhouse needlessly killed two people after wading heavily armed into unrest over police violence against African Americans. New York Times columnist Jamelle Bouie wrote that, “Rittenhouse should not have been there, and we should agree — all of us — that the shooting should not have happened.”
The shootings are among several to occur during unrest nationwide in the three months since George Floyd died under the knee of a Minneapolis cop. At least two men identified as gunmen who shot protesters have said they fired in self-defense, according to media reports.
There is extensive video footage from the night of the Kenosha shootings, and it forms both the backbone of prosecutors’ charges and Rittenhouse’s lawyer’s statement in his defense.
Kenosha County prosecutors wrote that video showed the teen running across a parking lot, trailed by Joseph Rosenbaum, 36, of Kenosha. Video showed Rosenbaum appearing to throw a plastic bag at Rittenhouse and missing him, prosecutors wrote. A witness told police that Rosenbaum, who appeared on video to be unarmed, had tried to grab the gun before he was fatally shot, prosecutors wrote.
In his statement, Pierce wrote that Rittenhouse was justified in shooting “an attacker lunging towards him and reaching for his rifle.”
Rittenhouse then ran before someone knocked off his hat, and he tripped and fell, prosecutors wrote. A man carrying a skateboard and later identified as Anthony Huber, 26, of Silver Lake, approached Rittenhouse as he was still on his back, prosecutors wrote. Huber tried to grab the gun as the skateboard “(made) contact” with Rittenhouse’s shoulder before the alleged gunman fired one shot, and Huber collapsed and died, prosecutors alleged.
Prosecutors wrote that Rittenhouse then shot a man who had approached him, Gaige Grosskreutz of West Allis. Grosskreutz appeared to be holding a handgun when he was wounded in the arm, prosecutors wrote.
Pierce’s statement said that Rittenhouse feared he’d be disarmed and killed and “had no choice but to fire multiple rounds towards his immediate attackers.”
Rittenhouse also is charged with possession of a dangerous weapon by a person under 18, a misdemeanor. Pierce argued on Carlson’s show that the charge is “incorrect as a matter of state law” and that the U.S. Constitution and federal law protect the teen’s right to have the gun, though he did not go into detail on that legal argument.
While the charges contain prosecutors’ early account of events, a full investigation and trial would bring out much more evidence, lawyers noted. For example, the criminal charges only contain comments from one eyewitness to the events at a scene seemingly full of them, and it’s unclear what, if anything, Rittenhouse may have said to authorities after his arrest.
Wisconsin statute allows a person to shoot in self-defense if the person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” In other words, attorneys said, a man can fire to repel a serious threat but can’t kill someone who is throwing pebbles at him, for example.
The law also contains caveats to the right of self-defense.
Several attorneys said the case could come down to whether Rittenhouse provoked attacks. The law states that a person who “engages in unlawful conduct of a type likely to provoke others to attack him or her” can’t make a valid claim of self-defense 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.”
Decisions as to the reasonableness of uses of force or a defendant’s obligation to flee would typically be made by jurors, or a judge in the case of a bench trial, lawyers said. In Rittenhouse’s case, a jury could examine the broader situation that led to the shooting, attorneys said.
Milwaukee attorney Tony Cotton, a past president of the Wisconsin Association of Criminal Defense Lawyers, said Rittenhouse could have “an exceptionally strong self-defense case.” He said that defense lawyers at a possible trial might want to accentuate that video footage has suggested that Rittenhouse told an interviewer he considered it his job to help people, brought a medical kit and tried to surrender after the shooting.
“I think that’s their best shot at winning this case,” Cotton said.
On the other hand, Mastantuono noted that the teenager seems to have voluntarily put himself in a situation fraught with potential for confrontation and armed himself with a gun prosecutors allege he carried illegally.
Rittenhouse’s actions, Mastantuono said, could lead to a prosecutor alleging in court that, “This guy is looking for trouble.”
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