Such a verdict, in my professional legal opinion, would be a travesty of justice—and that’s what I’d like to dive into here.  Specifically, why the gun charge ought to be dismissed by Judge Schroeder outright, never even considered by the jury, and Kyle no longer subject to the risk of conviction on that count.

For reasons I’ve written on extensively elsewhere, the prosecution of Kyle Rittenhouse has effectively presented no substantive evidence in court that is inconsistent with the legal defense of self-defense—and that in a case where the prosecution bears the burden of disproving self-defense beyond a reasonable doubt.  (For my other collected content on Rittenhouse, you can point your browser to http://lawofselfdefense.com/rittenhouse.)

Self-Defense Applies to Kyle’s Most Serious Criminal Charges

The primary legal defense raised by Kyle is self-defense. That legal defense of self-defense is applicable directly to the charge of first-degree intentional homicide of Anthony Huber (Count 3 of the criminal complaint against Rittenhouse, with a mandatory life sentence) and attempted first-degree intentional homicide of Gaige Grosskreutz (Count 4, good for a sentence up to 60 years).

The legal defense of self-defense is also applicable, albeit indirectly, to the charge of first-degree reckless homicide of Joseph Rosenbaum (Count 1, good for 60 years) and first-degree reckless endangering of unknown male “Jump Kick Man” (Count 5, good for 12 years), in that a justified use-of-force against an intended target is by law necessary and reasonable, and therefore not reckless—and both of those men were actively attacking Rittenhouse and therefore presumably intended targets of his use of force.

It’s somewhat more ambiguous—really, I mean fact sensitive—to what extent the legal defense of self-defense covers the charge of first-degree reckless endangering with respect to journalist Richard McGinnis (Count 2, good for 12 years), who was somewhat behind Rosenbaum and arguably endangered by the gunfire that Kyle put into Rosenbaum with his AR-15.  Of course, criminal recklessness requires that the risk created be an unjustified risk—a justified risk is not sufficient.

To illustrate, swerving and running over some nuns because you were adjusting your radio would be an unjustified creation of risk.  Swerving and running over some nuns because the alternative was running over a bunch of babies in strollers, however, may create the same danger to the nuns, but be considered justified under the circumstances.

Certainly, McGinnis was “downrange” of Kyle’s gunfire when the 17-year-old shot the murderously charging Rosenbaum, and thus in some danger from Kyle’s gunfire.  But that’s true in virtually every defensive gun use—there’s almost always somebody “downrange.”  Defensive gun uses don’t tend to occur on a square range with a solid and secure backstop.

So, the relevant question in the case of the McGinnis reckless endangerment charge will be whether the risk created towards McGinnis was unjustified, and therefore reckless.  It is possible to argue scenarios in which a gun use might qualify as lawful self-defense with respect to the intended target, but also as reckless conduct towards some bystander.  The State might argue, for example, that Kyle could have angled the gun in such a way so as to still defend himself without endangering McGinnis, and so the danger to McGinnis was unjustified and criminally reckless.

In fact, I would argue that this is precisely what Kyle did, whether intentionally or not.  The evidence I have seen is that the shots to Rosenbaum were fired with the barrel of the rifle angled downward, towards the lunging Rosenbaum, and not with the rifle horizontal to the ground.  But now we’re in the realm of fact-finding, and that falls within the province of the jury.

So, to the extent that the State has failed to come even close to disproving self-defense beyond a reasonable doubt, which is its burden, that solidly addresses Count 1 & Counts 3 through 5, and arguably also Count 2 (McGinnis reckless endangerment).  These are all the felony charges against Kyle, so that’s a good thing for the defense.

Count 7, the curfew violation charge punishable only by a ticket, was dismissed by the court yesterday.

Ambiguous Gun Charge & Treacherous Jury Instructions

That still leaves Kyle, however, with one remaining charge:  Count 6, the possession of a dangerous weapon by a person-under-18 charge, under §948.60(a)(2).  This is a mere misdemeanor charge, and if convicted Kyle is punishable by up to 9 months in jail (presumably lessened by any time served prior to trial).

This gun charge has, indeed, become a sticky wicket, largely because of the alleged ambiguity created by the Wisconsin legislature in drafting that statute, by the failure of the relevant Wisconsin Criminal Jury Instructions to accurately reflect the plain statutory language, and by the fecklessness of the prosecution in this case.

Also, because Kyle’s claim of self-defense, compelling against the felony charges against him, is irrelevant as a defense to this particular misdemeanor charge.  There is no self-defense justification for willfully violating a gun possession law. (Some of you may be thinking that an excuse defense of necessity or lesser harms might apply here—it would not, for reasons I’ll explain below.)

The relevant part of §948.60 reads:

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

If that was the only statutory language that applies to Kyle, it’s pretty much an open and shut conviction.  He was admittedly under 18, and he was in possession of an AR-15 style rifle, which certainly qualifies under Wisconsin law as a dangerous weapon (“dangerous weapon” means any firearm, per section (1) of that same statute, §948.60).

Indeed, the jury instruction that has been drafted with respect to §948.60(a)(2)—2176 Possession of a Dangerous Weapon by a Child—and specifically reflects this apparent simplicity of construction, defining for the jury the elements that the state must prove beyond a reasonable doubt in order to find guilt:

1. The defendant possessed an object.
2. The object was a dangerous weapon.
3. The defendant had not attained the age of 18 years at the time (he) (she) allegedly possessed a dangerous weapon.

Again, if this is the entire analysis of guilt, Kyle’s would seem a pretty open-and-shut case.  He was in possession of an object, the object qualifies as a dangerous weapon, and he had not attained the age of 18 years.

But that is not the entire legal analysis.  There is more, and it is found later in that same statute §948.60, in paragraph (3)(c).  That section reads in relevant part:

(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 … not in compliance with ss. 29.304 and 29.593.

So, unless Kyle was “not in compliance” with §29.304 and §29.593, the §948.60 gun possession statute would seem to not apply to him at all—that is, he would be legally exempt from the provisions of §948.60 entirely.

So, what are §29.304 and §29.593?

The second of those, §29.593 sets out the conditions that must be met to be certified to engage in certain hunting activities.  With respect to these conditions the State correctly points out that Kyle has not met any of these conditions—and therefore, they argue, Kyle is “not in compliance” with §29.593.

The first defense counter-argument here could be that that §29.593 applies to hunting activities, and Kyle was not engaged in hunting activities, and therefore §29.593 ought not apply to his circumstances at all.

Perhaps a stronger counter-argument, however, is that the plain reading of §948.60(3)(c) says it applies only “if the person is not in compliance with ss. 29.304 and 29.593.”  It does not read “ss. 29.304 or 29.593.”

So, even if Kyle can be said to be “not in compliance” with §29.593, was he also “not in compliance” with §29.304?

If we take a closer look at §29.304, we see that it is also a hunting-related statute, but one that involves restrictions on hunting and use of firearms by persons under 16 years of age.

Wait a minute—how can Kyle be “not in compliance” with a statute that applies only to “persons under 16 years of age”?  He was, after all, 17 years old at the time of these events.

Well, that’s precisely the position of the defense here.  They argue that Kyle is legally exempt from the provisions of §29.304, period, because he falls outside the statute’s age range.  And if he’s exempt, he can’t be “not in compliance.”

And if he can’t be “not in compliance with ss. 29.304,” he is exempt from §948.60(a)(2) “unlawful possession of a dangerous weapon because of the requirement of paragraph §948.60(3)(c), which on the facts of this case would require non-compliance with §29.304.

The State’s counter-argument to this plain reading of the statutory language is that, well, the legislature titled §948.60 “Possession of a dangerous weapon by a person under 18,” so they must have meant some application to “persons under 18.”  After all, Kyle was admittedly under 18 at the time of these events

We may not understand exactly what the legislature was trying to get at, the State is arguing, but surely they were getting at something—and therefore we should ignore the plain statutory language, and subject Kyle to criminal sanction under this statute.

In effect, the State’s argument here is, pay no attention to the plain reading of the statutory language behind the curtain,  because I am the great and powerful ADA Oz!  Really, it’s ridiculous—and ridiculous ought have no role in a court of law where criminal sanctions and personal liberty are at stake.

Also, ADA Jim Kraus has engaged in some handwaving to the court, arguing that, “hey, this is just a fact question, and fact questions out to go to the jury.”  Well, it’s true that fact questions ought to go to the jury, so that’s an argument that on its face is always attractive to any trial judge.

Question of Fact versus Question of Law

More importantly, ADA Kraus knows what “go the jury” means—it means the jury gets the Wisconsin Criminal Jury Instruction on §948.60(a)(2).  And that jury instruction, WCJI 2176, says not one word about the (3)(c) exceptions to that gun possession statute, makes no reference whatever to §29.304, and if plainly relied on by the jury will certainly result in a conviction that would appear contrary to the plain reading of the relevant statutory language.

In truth, this is not a fact question at all—this is a question of law. And questions of law do not fall within the province of the jury, they fall within the province of the judge.

It is for Judge Schroeder in this case, not the jury, to decide how the law applies to the facts, as those facts are determined by the jury.  In this case, the facts on the gun possession are undisputed—it is the law in dispute. And that dispute ought properly to be settled by the judge.  Simply giving the jury the standard jury instruction that fail to reflect the actual statutory language would be a judicial travesty and injustice.

Now, trial courts are generally extremely hesitant to stray away from standardized jury instructions, for the perfectly good reason that doing so tends to get their verdicts reversed.  That said, it’s also the duty of the trial court to ensure that the instructions given the jury accurately reflect the law to be applied to the facts as the jury finds those facts to have been proven (or disproven).

So, Judge Schroeder is not necessarily locked into the over-simplistic jury instruction of WCJI 2176.  I’ve heard rumor that he’s actually requested the State and the defense to draft their own versions of jury instructions for that gun possession charge, Count 6, and submit them to the court for review—indeed, this is how jury instructions used to be done routinely, back in the day, before there was wide use of standardized jury instructions.

If the jury gets instructions that accurately reflect the actual statutory language, I think Kyle’s in good shape even on this gun possession charge, Count 6 in the criminal complaint.

If he gets the current standardized jury instructions that fail to accurately reflect the plain language of §948.60, then an unjust misdemeanor conviction on that gun possession charge seems almost certain.

Inapplicability of the Necessity Defense

I also wanted to touch upon the necessity defense, or the doctrine of lesser evils as it’s sometimes is called, because I’ve received a lot of inquiries on that, as well.

Can’t it be argued that Kyle’s possession of the rifle, even if unlawful, was a relatively small harm relative to the very large harm had he been unable to defend himself from multiple deadly force attackers?

Perhaps, but that’s not how the necessity defense works, with respect to this gun charge on the facts of this case.

The necessity defense may excuse the violation of a law when doing so is compelled by a necessity of the moment to avoid a greater harm.

So, you physically shove someone very hard—normally a simple battery, subject to criminal sanction.  But you did it out of the necessity of moving them out of the path of an oncoming truck.  There, the necessity of the moment may excuse your plain simple battery for the purpose of having avoided a much greater harm.

In the case of Kyle, had he been charged by Rosenbaum and suddenly discovered an unfamiliar AR-15 at his feet, snatched it up, and defended himself, that transient possession of the dangerous weapon would have a very viable necessity defense that could be raised.

That’s not what Kyle was doing, however. He was not merely in possession of the rifle transiently and for a compelling necessity of the moment.  He was in possession of the rifle the entire time he was in Kenosha, even when not under attack.

The necessity defense applies to a compelling greater interest in the moment—it does not apply to speculative need in the future.

So, on the facts of this case, the necessity defense is of no use as a legal defense against the gun possession charge, Count 6, brought against Kyle.

OK, folks, that’s all I have for you on this topic.

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