Notwithstanding Georgia Congresswoman Marjorie Taylor Greene’s nomination of Kyle Rittenhouse for the Congressional Gold Medal and Donald Trump’s praise, most people want to prevent anything like what happened in Kenosha, Wisconsin, from happening again. Kyle Rittenhouse now regrets that he went there with a rifle on the night of Aug. 25, 2020, ultimately shooting three men and killing two of them, even though he was acquitted on all charges.
How can the law adjust to help prevent any future such tragedies?
First, government officials can take a firmer and clearer hand in dealing with violent protests. Arson and looting are not part of any legitimate political expression. State and local governments can only keep out private gunmen if officials are able to protect lives and property. No widespread arson, no Kyle Rittenhouse.
Beyond that, there are aspects of current law that could be used to prevent any future Kyle Rittenhouse from seeking out trouble.
Rittenhouse was charged with two counts of reckless endangerment, but only for discharging his rifle at two people he shot at and missed. He should have been charged with reckless endangerment for showing up with a rifle at all. Rittenhouse was untrained, underage and utterly unprepared for the kind of confrontation his presence predictably provoked. He never considered the danger his own rifle could present to everyone if he was unable to secure the weapon. Prosecutors should make it clear that they will look seriously at reckless endangerment charges for any amateurs who show up, armed, at future protests.
In addition, the distinction between lethal and non-lethal force in the law of self-defense needs to be reinforced. Rittenhouse was acquitted of the murder of Joseph Rosenbaum not because Rosenbaum had a criminal record or tried to wrest the rifle away from him, but because of a specific threat he made to kill Rittenhouse.
Some people believe if they are carrying a weapon lawfully, any attempt to take their gun away from them constitutes an excuse to open fire. But that is not the law of self-defense. Grabbing my rifle away from me is the unlawful use of non-lethal force. It is a form of minor assault, like starting a fist fight in a bar. Absent a reasonable belief that the firearm will be used against its owner, that action does not justify the use of deadly force in return.
Even the fact that someone is the aggressor in grabbing my rifle is not relevant to justifying the use of deadly force in response. I am privileged to meet non-deadly force only with non-deadly force. I am not privileged to escalate an encounter even though I was attacked.
Are people aware that if Rosenbaum had merely gone up to Rittenhouse and grabbed his rifle, Rittenhouse might well be in prison today for shooting him? Persons carrying firearms better know this.
But the most important way that the law needs to adjust to the Rittenhouse verdict is in reconsidering the response to active shooters.
It is very strange that Rittenhouse was permitted to raise self-defense at all. Until the jury acquitted him in the killing of Rosenbaum, Rittenhouse was just someone who killed an unarmed man and then ran away from the people trying to stop him.
Rittenhouse supporters point out that he was attacked on his way to surrendering to the police. Clearly, Rittenhouse did later walk directly up to the police with his hands in the air.
But, consider how the situation looked to Anthony Huber, the second man Rittenhouse killed, who attacked Rittenhouse with his skateboard.
Why was it wrong for Huber to attack Rittenhouse? Huber did not know that Rittenhouse had a claim of self-defense to the Rosenbaum killing or that Rittenhouse was doing anything other than fleeing the scene.
Maybe the law should be that if I see a person shoot someone and then run away, I have to let him go. But I’m surprised to hear gun proponents suggest that.
And what of Gaige Grosskreutz, who saw Rittenhouse shoot Huber? Grosskreutz testified he thought Rittenhouse was an “active shooter.” He was shot when he confronted Rittenhouse while brandishing his own gun. It is clear from the fact that he did not shoot Rittenhouse when he had the chance, that he was only trying to stop him.
At trial, doubts were raised about Grosskreutz’s veracity, but the facts show he was truthful about this.
As a colleague of mine asked, how is Grosskreutz any different from Tate Myre, who was shot and killed trying to disarm the gunman at a shooting incident at Oxford High School in Michigan in November? Myre reacted exactly as he should have. He was a hero. It would be absurd to imagine that the gunman in the school shooting will be permitted to raise self-defense when charged with Myre’s death.
The way that such an absurdity can be avoided is by a renewed emphasis on the objective aspect of self-defense. It is currently the law in most jurisdictions that, in order to be privileged to use lethal force in self-defense, not only must a person believe that his own life is in danger, but that belief must be reasonable in an objective sense.
The gunman at Oxford High School should have known that he needed only to surrender to avoid any harm to himself and therefore he cannot be acquitted on grounds of self-defense.
People who emphasize, as the defense did at the trial, that Rittenhouse was chased and attacked after he killed Rosenbaum, that he feared for his life and that he did not threaten or provoke his attackers are asking the wrong questions. The only relevant question should be whether Rittenhouse reasonably believed he could not have safely surrendered. If that isn’t the law, it should be.
Maybe under this standard Rittenhouse would have been acquitted anyway. But maybe not. A jury might have found that Rittenhouse could have surrendered right after shooting Rosenbaum, when he phoned a friend instead of the police.
There are ways for the law to discourage the actions that led to the tragedy in Kenosha. Clarity about self-defense is one of those ways. Another is to keep people from taking up arms recklessly in the first place. We should pursue these ways. No one should want to see what happened in Kenosha happen again.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.
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