Sometimes the trees get in the way of seeing the forest. In the case of Kyle Rittenhouse, a narrow view of the law of self-defense could provide an acquittal despite the big picture — his outrageously poor judgment in bringing a semi-automatic rifle to a protest.
The key issue will be the reasonableness of Rittenhouse’s belief.
Rittenhouse has been charged with homicide and other crimes relating to his conduct during a night of civil unrest in Kenosha, Wisconsin, in August 2020. Protesters had taken to the streets following the police shooting of Jacob Blake, a Black man. Rittenhouse testified Wednesday that he went to the scene only to protect property and offer first aid. It seems like those tasks could have been accomplished with nothing more than his physical presence and a medical bag. Instead, Rittenhouse openly carried an AR-style semi-automatic rifle.
Rittenhouse is charged with shooting and killing two men and wounding another. In addition, he is charged with reckless endangerment for firing his weapon at someone allegedly while a reporter stood close by and for illegal possession of a firearm because he was under the age of 18 at the time.
Rittenhouse claims he was acting in self-defense when he fired all of the shots. His guilt will turn on the reasonableness of his conduct that night. Apparently, it never occurred to him that in a country that has experienced mass shootings on a regular basis, on a night when there was chaos in the streets, someone might mistake him for an active shooter and try to stop him.
At the conclusion of Rittenhouse’s trial, the jury will be asked to apply Wisconsin’s law of self-defense. Under that law, deadly force is permitted if a defendant “reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.” Reasonableness is to be viewed based on “the defendant’s position under the circumstances that existed at the time of the alleged offense.”
Generally, someone who provokes an attack is unable to use self-defense, but Wisconsin law is a little more generous, even contradictory. It provides that a “person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack.” That prohibition would seem to apply to Rittenhouse, whose alleged illegal possession of a semi-automatic rifle provoked others to attack him. Even then, however, the law says a defendant may still use deadly force if he reasonably believes he has no other means to avoid death or great bodily harm. What the law taketh away, it giveth back.
In this case, Rittenhouse can argue that even if he provoked others to attack him by openly carrying his semi-automatic rifle at a mob scene, he was still able to use deadly force under Wisconsin law because he reasonably believed he had no other alternatives at those moments to avoid death or great bodily harm.
If you were in the shoes of Rittenhouse, would you have aimed and fired an assault rifle? Or would you have used something short of deadly force?
The key issue will be the reasonableness of Rittenhouse’s belief. While the law allows the jury to consider Rittenhouse’s situation, his conduct will be viewed from an objective perspective. If you were in Rittenhouse’s shoes, would you have aimed and fired a semi-automatic rifle? Or would you have used something short of deadly force?
Importantly, the jury will be asked to assess each of the encounters separately, which means Rittenhouse could be convicted of some counts but acquitted of others. The reasonableness of fatally shooting the unarmed Joseph Rosenbaum, for example, could result in a different conclusion than the reasonableness of shooting the surviving Gaige Grosskreutz, who pointed a handgun at Rittenhouse before the defendant fired. A finding by the jury that any one of the episodes was unreasonable would result in significant prison time for Rittenhouse. It is also highly likely that he will be convicted of illegally possessing the weapon, a crime to which self-defense does not apply, though the maximum penalty for that crime is only nine months in prison.
On Wednesday, Rittenhouse testified in his own defense, a move often seen as risky, but important in a case involving self-defense. Despite the presumption of innocence and an instruction that a defendant has an absolute right under the Constitution not to testify, jurors naturally want to know what a defendant was thinking before they decide whether he was justified in taking someone’s life.
In some ways Rittenhouse’s testimony was compelling. At one point, he broke down and sobbed on the witness stand, likely engendering sympathy from at least some of the jurors. But parts of his story didn’t quite add up. For example, he testified that at that time of the encounter with Rosenbaum, Rittenhouse was running back to a car lot with a fire extinguisher to put out a fire, yet on the way, he was asking people if they needed any medical attention. Who stops to offer assistance when you are racing to put out a fire? He also testified that he thought he had no choice but to shoot Rosenbaum, even though Rosenbaum himself was unarmed, because he was “cornered” and believed that Rosenbaum would take his gun and kill him and would have “probably killed more people,” an assertion that sounded speculative at best. Even if Rittenhouse genuinely believed these things, the jury may conclude his belief was not reasonable. Like all convictions, this one is an uphill battle for the prosecution. The government must prove each element of each offense beyond a reasonable doubt. But this one is an even steeper climb because the government also bears the burden of proving beyond a reasonable doubt that Rittenhouse was not acting in self-defense. That means a tie goes to the defendant. This is the price we pay for a system that is built on the notion that it is better that 10 guilty defendants go free than one innocent defendant be convicted. The prosecution is also unable to argue that the jury should be concerned about the precedential value of an acquittal. Precedents are for judges to worry about, not juries, which are bound to decide the case before them based on the facts and the law. You will not hear the prosecutor make the argument that an acquittal of Rittenhouse would spark others to engage in vigilante justice, even though it would. People like the defendants who participated in the Jan. 6 attack on the U.S. Capitol are watching. So are people like those who allegedly plotted to kidnap Michigan Gov. Gretchen Whitmer in retaliation for her executive orders in response to the Covid-19 pandemic. An acquittal would further embolden them to take the law into their own hands. Rittenhouse would become the poster boy for gun enthusiasts who advocate for open carry of semi-automatic weapons in public places. But you won’t hear about any of that in this trial because it might prejudice the outcome for Rittenhouse. This is the price we pay for a system built on the notion that it is better that 10 guilty defendants go free than one innocent defendant be convicted. In our criminal justice system, all defendants accused of a crime, including those we find repugnant, are entitled to due process. Prosecutors understand the legal protections that defendants enjoy, and they embrace the responsibility of meeting their burden of proof of guilt beyond a reasonable doubt. We rely on our fellow citizens as jurors to decide when conduct violates the social contract we have all made with each other to live together in society. Their job will be to decide the narrow question of whether Rittenhouse’s conduct was reasonable on one night in Wisconsin. But the answer will have a broad impact on the future of our country.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
