By now everyone has, I’m sure, done a bunch of venting about the outcome of Kyle Rittenhouse’s trial today. Whether that’s about the judge and his behavior, the prosecution, the defense, the actual events, or some combination of all of them. The reality though, and I’m sure someone put this in a comment in MisterMix’s post, is that the odds were always in favor of an acquittal. I’ll leave the discussion of whether the local prosecutors in Kenosha overcharged or incorrectly charged Rittenhouse to the our crack team of readers and commenters who are lawyers, especially those who practice in Wisconsin (hint, hint). As for whether the judge’s behavior and rulings were way out of bounds, I’m sure those readers and commenters who are lawyers will be happy to explain that judges, especially those handling criminal cases, are often unique individuals. I’m sure those that do defense work will also explain that the instructions about using terms like victim or perpetrator are actually what every defendant should be getting from judges, but, sadly, all too few ever do. Especially if the accused are people of color.
This is a good thread from a public defender in Louisiana about the judge’s instruction on the language the prosecutors and the defense counsel could and could not use during the trial and how almost all the initial reporting and subsequent commentary got it wrong. Here’s his take on the outcome of the Rittenhouse trial. Here’s Ken White’s, aka Popehat, explainer on Judge Schroeder, his behavior, and why it is all too common.
I want to just briefly focus on why today’s acquittal was always the likely outcome: because the laws on armed self defense and/or stand your ground laws are either sloppily written or are currently interpreted in a very broad manner. I’m most familiar with Florida’s stand your ground expansion of its self defense laws because I was teaching state and local politics* at UF when it was being debated. The bill, commonly referred to as the Baxley Amendment as it was submitted by a state legislator from the greater Orlando area named Dennis Baxley. Baxley didn’t write the bill, it was written by Marion Hammer, who was the then chief lobbyist for both the NRA in Florida and Associated Industries of Florida (the largest business lobby in the state). Hammer is commonly referred to as the Gun Granny. The bill has what is now the usual legislative language about a reasonable person feeling threatened as the determinant for whether standing one’s ground is justified, as well as no duty to retreat. However, it also frames this within the perception regarding whether the person who is claiming stand your ground as a defense is actually facing an imminent threat. When you combine the latter with the no duty to retreat portion of the law, it allows someone to instigate and/or escalate a confrontation, determine they’re being imminently threatened with serious harm and/or death, and therefore use lethal force to stop that perceived threat.
While my understanding of the Rittenhouse case from the reporting and the commentary is that there was no stand your ground law in place in Wisconsin for Rittenhouse’s defense team to invoke, the description of instigating and/or escalating a confrontation determining one is being imminently threatened with serious harm and/or death, and therefore employing lethal force to stop that perceived threat is a pretty good description of Kyle Rittenhouse’s actions on the night he decided to go play shooting medic in Kenosha.
That description, part of which – that Rittenhouse was under attack by three different people as the lead elements of a mob of protestors, demonstrators, and rioters – focused on the imminent threat Rittenhouse was in and his inability to safely retreat, which required him to use lethal force in self defense is what his defense was built around. It was the focus of his direct testimony and it was the focus of his attorneys’ theory of the case. And it was a powerful defense because with the exception of Gage Grosskruetz, the people he shot were not alive to tell their version of events. And this is what I want to focus on.
The simple reality is that in these armed self defense and/or stand your ground cases, the person who survives and is able to tell their version of events usually has an advantage. For the simple reason that the person or people that they shot and killed are dead and can’t really speak for themselves. The Tampa Bay Times did an extensive investigation into Florida’s stand your ground law and had two major takeaways. The first is that if only one party survived, specifically the party invoking stand your ground, then he or she (though it is usually a he) had a very high chance of either not being charged or of an acquittal because the other party or parties to the shooting were dead. The second was that if the person who was claiming stand your ground was white, the person they shot and killed is a person of color, and/or both they have an exceedingly high chance of either not being charged or of an acquittal. Whether Baxley, or really Marion Hammer, intended Florida’s stand your ground law, which became the model for similar legislation with minor variations in many other states, to actually have a racist effect is both not known and immaterial. Like so many other of our criminal laws, the reality is it produces a serious and significant racial disparity when applied.
This brings us back to Kyle Rittenhouse. The only way today’s outcome would have been different was if Gage Grosskruetz had shot Rittenhouse rather than moving his gun off of Rittenhouse as a target to signal he wasn’t a threat. Rittenhouse ignored that, which makes the acquittal on the charges regarding Grosskruetz’s being shot so egregious, and then claimed self defense because Grosskruetz was actively targeting Rittenhouse, which created an imminent threat of serious bodily harm and/or death.
Grosskruetz’s cardinal mistake was in deciding Rittenhouse was not a threat and, as a result, taking his gun off of Rittenhouse as a target and not shooting. I know that sounds cold and callous. And before someone eventually reads this and thinks I’m calling for Rittenhouse to be shot, I AM NOT CALLING FOR RITTENHOUSE TO BE SHOT!!!! The reality is if you draw your gun for self defense purposes, especially if you have a handgun and the person who is doing the shooting has a rifle, you had better take the shot. Unless you are under secure and impenetrable cover so that no matter what the other person does, you can’t be shot. Because if you don’t, the person who has been doing the shooting will see you, see your gun, and shoot you because you are a threat to him (it is almost always a him).
As I wrote way back when the congressional Republicans’ softball practice was attacked, the first attempted claim of stand your ground was in Philadelphia in the 1790s. The judge determined it was not a valid defense under the US constitution, Pennsylvania’s constitution, or the common law. The local newspaper actually published the write up of the trial as a special pamphlet, which is attached below this post. It is important to remember that the people (okay, white men) who had just come through the Revolution, the founding of the US, and were alive for the debates around both the Articles of Confederation and the Constitution did not accept stand your ground as a legitimate defense. That it has been revived over the past twenty years with claims of originalism rooted in the largely created from whole cloth revisionism of the 2nd Amendment’s legislative, constitutional, and legal history is just stupendously amazing.
* When I first got to UF, because I already had a pair of masters degrees and experiencing teaching as an adjunct and as a teaching assistant, I got assigned to septuagenarian member of the faculty who had had a mild stroke from which he’d made an almost complete recovery. The guy rode his bike about 40 miles to and from campus each day! His specialty was state and local politics and, to be frank, he should have retired many years before I got there as time, the discipline, and reality had long passed him by. He was a wonderful person, really cared about the students, and loved teaching. Unfortunately they’d assigned him a 300 student intro to state and local government section. He’d never taught any course with more than 20 or 30 students, including the intro course. My job was to help him deal with this new reality. To this day I’m convinced the department chair at the time assigned him this section in the attempt to either force him to retire or kill him from the stress. Regardless, because I basically ran the course for him – I did the syllabus, handled drafting the tests and quizzes and getting them graded, did all the administration, ran the review sections, etc – we both got through the semester without major incident and as a result it was determined that I was now qualified to teach state and local politics. So every few semesters, I’d get assigned to teach it despite it being well outside of my specialty areas.