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January 7th, 2022

(by Shawn Vincent, litigation consultant)

Reposted from CCW Safe (Part 1, Part 2)

These articles are not presented as any judgement or statement of opinion from CCW Safe or Kind Sniper. The content represents the thoughts and opinions of the authors. It is presented here to generate thought and discussion.

After spending 27 hours in deliberations over the course of four days, the jury in the Kyle Rittenhouse case found the defendant “not guilty” on all counts. While anyone who has an interest in gun rights or self-defense law is likely familiar with the Rittenhouse case, here are the key details: On August 25, 2020, Kyle Rittenhouse traveled to Kenosha, Wisconsin to protect a business during the second night of riots that had erupted amidst protests over the police shooting of Jacob Blake. Rittenhouse chose to carry an AR-15-style rifle for self-defense. A rioter named Joseph Roembaum targeted Rittenhouse, threatened him, and chased him down. After being cornered, Rittenhouse shot his attacker four times in response to Rosenbaum’s attempts to take his rifle. After the shooting, the crowd turned on Rittenhouse, and he fled towards where he knew there was a law enforcement presence. As Rittenhouse retreated, a man named Anthony Huber attacked him with a skateboard, knocking him to the ground, and Rittenhouse defended himself with one fatal shot. Shortly thereafter, a man named Gaige Grosskreutz aimed a pistol at Rittenhouse who ended the confrontation with a single non-fatal shot.

The jury had five felony counts to consider: First-Degree Intentional Homicide, First-Degree Reckless Homicide, Attempted First-Degree Intentional Homicide, and two counts of First-Degree Recklessly Endangering Safety. Rittenhouse was acquitted on all counts. On the day of the verdict, The Chicago Tribune ran a headline that read, “Reaction to Kyle Rittenhouse acquittal reflects nation’s polarized politics: Republicans claim 2nd Amendment victory, progressives call it a miscarriage of justice.” From a legal perspective, both parties identified in that headline had it wrong. NPR more precisely identified the real issues with the headline: “Why the Kyle Rittenhouse ‘not guilty’ verdict is not a surprise to legal experts.” In the courtroom, the Rittenhouse case wasn’t about gun rights, and it wasn’t about whether the criminal justice system treats everyone fairly. Legally, the Rittenhouse case was about whether the defender was justified each time he pulled the trigger.

Don West, criminal defense attorney and National Trial Counsel for CCW Safe says, “I think the prosecution attempted at every opportunity to expand the boundaries of this incident to include why and how Rittenhouse came to be there, how old he was, and how he came to be in possession of that long gun to start with. They wanted to expand it to include every bad or even misguided decision that was made.” The prosecution failed, and the defense lawyers managed to keep the jury focused on the individual acts of self-defense. Don West says, “The claim of self-defense really focuses on those moments before and after the fatal shots are fired, which doesn’t mean nothing that happened before can’t be relevant, but it isn’t necessarily legally relevant.”

Juries are asked to follow the law when they render their decisions, and the judge gives jurors instructions before sending them off to deliberate, but no authority asks jurors how they arrived at their verdict, and technically, they are allowed to reach any verdict they can all agree upon based upon any parameters they work out amongst themselves.

Don West says that juries sometimes deliver what is known as a “jury nullification,” meaning that, despite overwhelming evidence of guilt, the jury decides not to convict due to larger, extenuating circumstances. In the Rittenhouse case, one of the biggest risks to the defense was a “reverse jury nullification” where the jury might render a verdict based upon what they thought about Rittenhouse’s decision to bring a long gun to a riot, a decision that might have been influenced by their opinion of the 2nd Amendment or “vigilante justice.” Don West says, “The fear, of course, would be that the jury would make a decision based upon emotion or sympathy, things that they’re told not to do, but as human beings – living, breathing, feeling human beings – it enters into all the decisions we make.”

“The their credit,” Don says, “I think they saw through those emotional appeals made by the prosecution, and they did render verdicts based upon the law and the evidence.”

Legally, the jury wasn’t asked to render judgment on Rittenhouse for his decision to take a long gun to a potentially violent riot, and the jury’s legal verdict shouldn’t be read as validation of all of Rittenhouse’s actions on the night of August 25, 2020. Don says that all a jury is asked to decide is “whether or not the prosecution has made its case beyond a reasonable doubt. By no means does that mean a declaration of innocence.”

Kyle Rittenhouse chose to leave a place of safety, arm himself, and insert himself into a dangerous situation. Given the circumstances, he is extremely lucky he escaped his encounters in Kenosha alive, and he is even luckier that he survived the criminal prosecution without any convictions. Like it or not, gun rights and self-defense laws are controversial subjects, and it’s fair to say that any jury that renders judgment in any self-defense case will represent people with broad opinions on those subjects. The lesson for concealed carriers is that if you are ever judged for using deadly force, the jury won’t necessarily think the way you do about gun rights or self-defense, and no one can stop them from allowing those thoughts to impact their verdict. Do not leave a place of safety, arm yourself, and insert yourself into a dangerous circumstance unless you’re willing to place your fate into the hands of 12 strangers who are allowed to judge your actions based upon any criteria they choose. Kyle Rittenhouse got lucky, and a responsible armed defender should not count on luck.

During the chaos that engulfed Kenosha, Wisconsin on the night of August 25, 2020, Kyle Rittenhouse fired eight rounds from his AR-15-style rifle in four distinct encounters. He killed two people, Joseph Rosenbaum and Anthony Huber, and he wounded a third, Gaige Grosskreutz. At trial, the prosecutors tried to keep the jury focused on Rittenhouse’s dangerous decision to bring a rifle to a riot. Rittenhouse’s lawyers, on the other hand, worked to keep the scrutiny where it legally belonged: on each individual shot. Over the next few weeks, we’ll explore each shot in the Rittenhouse case and unravel the issues the jury had to consider before reaching their “not guilty” verdict.

The first shots fired in the Rittenhouse case were against 36-year-old Joseph Rosenbaum. Rosenbaum had targeted Rittenhouse and chased him across a parking lot. Video shows Rittenhouse becoming trapped between his attacker, parked cars, and a growing mob. Witness Richard McGuiness testified that Rosenbaum “lunged” toward Rittenhouse in an attempt to grab the barrel of the rifle, and that’s when Rittenhouse fired four shots in quick succession. One shot grazed Rosenbaum’s head, the others struck him in the leg, in the groin, and in the back.

Prosecutors argued that because Rosenbaum was unarmed, Rittenhouse’s use of deadly force was disproportional to the threat and therefore unjustified. Even if jurors were to find deadly force justified, prosecutors argued that four shots were excessive – especially the shot that struck Rosenbaum in the back. The challenge for the defense lawyers would be to demonstrate how an unarmed attacker could pose an imminent deadly threat and to justify each and every shot fired.

Jurors watched the video of Rosenbaum chasing Rittenhouse. They also learned that moments before Rittenhouse fired, an unidentified third-party fired a shot, giving Rittenhouse reason to believe his attacker might be armed. But Rosenbaum was not armed, and prosecutor Thomas Binger hammered this point during his direct examination of Detective Martin Howard who testified that Rosenbaum had no gun, knife, bat, or club. “I can only see a plastic bag he’s carrying,” Howard said, according to reporting from the AP. On cross-examination, however, defense attorney Mark Richard asked the detective what can happen if an attacker gains control of a defender’s firearm. “It can be used against them as a deadly weapon, correct?” Richard asked. “Yes,” Howard replied.

Firearms instructor Steve Moses says that, at close quarters, it is easier for an attacker to take control of a defender’s long gun than a pistol. When Steve served on a tactical squad that served high-risk warrants, he had special training to learn how to maintain control of a rifle in a tight combat situation. Without that special training, Steve says, defenders bearing long guns are susceptible to being over-powered, especially if the attacker is bigger and stronger. Steve says, “Rosenbaum was obviously agitated, and if someone in a situation like that were lunging toward me, and physically they could overpower me, and they told me that they were going to kill me, indicating intent, then obviously, ability and opportunity are there, so that leaves preclusion. Was there any place else for Rittenhouse to go? The answer seems to be no. I believe Rittenhouse’s decision to fire was a reasonable response.”

If there’s any question about whether Rosenbaum meant to take Rittenhouse’s rifle, at trial we learned that, in addition to the four gunshot wounds that were widely reported, Rosenbaum also had a “close-range gunshot wound to his hand,” according to reporting from CNN. “That hand was over the barrel of Mr. Rittenhoue’s gun when his hand was shot?” defense attorney Mark Richards asked Dr. Douglas Kelley of the Milwaukee County Medical Examiner’s Office. “That makes sense,” Dr. Kelly said.

If the jury accepted that Rosenbaum, despite being unarmed, had the ability, the opportunity, and the intent to take Rittenhouse’s rifle and use it against him – and that Rittenhouse had nowhere left to run – then the next obstacle for the defense would be to demonstrate that four shots, including the shot to the back, were not excessive for eliminating the threat Rosenbaum presented. For this, the defense again relied on the testimony of Dr. Kelly.

“The only time during the interaction in which he could have incurred the gunshot wounds to the back and to the right side of the head was when he was more horizontal,” Dr. Kelly said. According to CNN, Dr. Kelly expanded his answer to clarify that a “horizontal position is consistent with a person either falling forward or lunging at someone.”

Witness Richard McGinniss gave testimony that supported Dr. Kelly’s “horizontal position” explanation for the shot to Rosenbaum’s back: “If anybody were to lunge, they would probably stop themselves, you know, from falling face down on the ground, but the shots were fired in the exact instance that his momentum was going forward and that continued until Mr. Rosenbaum landed on the ground.”

Based upon the testimony from Dr. Kelly and Mr. McGinniss, Rittenhouse shot Rosenbaum in the back when the attacker was lunging forward, not when he was turning away – when he was attacking, not retreating. With the troublesome shot in the back explained, there’s a final question of whether four shots were too many. Steve Moses explains that the answer depends on how the attacker responds to being shot.

“The objective of lawful self-defense is not to kill the person who is trying to kill your or injure you,” Steve says. “It is to stop the attack.”

Steve explains that a firearm will stop an attacker either by physically disabling them or by causing so much fear or pain that the attacker hits a psychological stop and decides to end the attack. In the moments after the Rosenbaum encounter, a man named Gaige Grosskreutz aimed a pistol at Rittenhouse but retreated when Rittenhouse fired a single shot that struck Grossekreutz bicep. Grosskreutz was physically able to continue the attack but was psychologically unwilling to do so. Before the Grosskreutz encounter, a man named Anthony Huber attacked Rittenhouse with a skateboard. Rittenhouse fired a single shot to the chest that “caused blood loss and extensive trauma to his heart and lungs.” Immediately after being shot, Huber stumbled away, psychologically stopped, and he quickly expired from his wound, a physiological stop.

If one shot was sufficient to end the attacks from Grosskreutz and Huber, why did it take four to stop Rosenbaum? We learned at trial that on the morning of his death, Rosenbaum had been released from a Milwaukee hospital where he was being treated for depression and bipolar disorder. Rittenhouse’s lawyers argued that showed Rosenbaum was “irrational and crazy,” and while those aren’t clinical terms, it stands to reason that Rosenbaum, in his agitated state, simply wasn’t psychologically deterred by the first three shots. Perhaps it took the fourth bullet, which ripped through Rosenbaum’s lungs and liver, to cause enough trauma to physically stop the attack.

With their “not guilty” verdict, the jury decided that four shots fired against Rosenbaum were not too many. Don West, criminal defense attorney and National Trial Counsel for CCW Safe, however, warns that in self-defense, every shot must be accounted for. “If you fire even once more than you absolutely have to in order to neutralize the threat, you give the prosecutor the opportunity to argue your response was disproportional, that it went beyond what was necessary for self-defense, and it carried over into recklessness and criminal conduct.”

There are two key lessons for concealed carriers and armed defenders to take from Kyle Rittenhouse’s encounter with Joseph Rosenbaum. The first is that when dealing with an unarmed attacker, and you should exhaust all opportunities to escape the situation, and you should only use deadly force when the attacker has the clear intent, opportunity, and ability to overpower you and potentially use your weapon against you. The second lesson is that, if you must use deadly force, you should only fire as many times as is required to stop the threat, and you should remember that you might be successful in psychologically stopping your attacker before you physically stop them. If you shoot someone after you’ve psychologically stopped them, those shots could be considered murder, even if your first shots were justified.

Reposted from CCW Safe (Part 1, Part 2)

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