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Kyle Rittenhouse Case: Is the Gun Charge A Sinister Attack on Kyle’s Self-Defense?

Kyle Rittenhouse Case: Is the Gun Charge A Sinister Attack on Kyle’s Self-Defense?

Rittenhouse’s criminal trial is scheduled to begin on Monday, November 1, 2021. And thanks to the kind sponsorship of Legal Insurrection, we’ll be here live.

Hey folks,

Welcome to our ongoing Law of Self Defense coverage of the criminal trial of Kyle Rittenhouse.

Today’s content is the second of a two-part discussion of the rather odd misdemeanor gun charge against Kyle Rittenhouse—odd in the serious that he is already charged with five very serious felony charges, including an intentional murder charge good for life in prison plus five years for the gun sentencing enhancement.

So why also include a misdemeanor charge good for at worst 9 months in jail and a $10,000 fine—and, given Kyle’s perfectly clean criminal history, how unlikely it is that he’d receive that maximum punishment even if convicted of this charge?

There were two key issues I wanted to tackle on this matter of this misdemeanor gun charge.

First, which we covered in yesterday’s content, was whether Rittenhouse had even violated the relevant gun law in the first place.  You can find that content here: “Rittenhouse: Should Misdemeanor Gun Charge Just Be Dismissed?”

The bottom line was that a plain-English reading of the relevant Wisconsin statutes would appear to exclude Rittenhouse from any criminal liability under the charged misdemeanor gun crime.  It is for this basis that the defense has filed a motion, still under consideration by Judge Schroeder, to have this gun charge dismissed.

Second, and the issue we’ll discuss in today’s content, is why is Assistant DA Binger so aggressively pursuing this relatively modest misdemeanor gun charge against Rittenhouse when he already has a handful of serious felony charges pending against the defendant?  Is there a simple, straightforward rationale for this?

Or might the prosecutor have a more sinister strategy behind bringing this charge—a strategy that threatens the very core of Rittenhouse’s self-defense? A strategy that, if successful, would leave Rittenhouse defenseless against conviction on every one of the felony charges brought against him?

So, grab a seat and make yourself comfortable, as we dive into this second question about the why behind this misdemeanor gun charge.

Why is Assistant DA Binger so aggressively pursuing this relatively modest misdemeanor gun charge against Rittenhouse when he already has a handful of serious felony charges pending against the defendant?  Is there a simple, straightforward rationale for this?

One possible motivation behind this misdemeanor gun charge is that it is serving as a “safety charge,” in the hopes that even if Rittenhouse is acquitted on all the more serious felony charges—which seems likely to me, given a fair and impartial jury, in the context of Rittenhouse’s planned legal defense of self-defense—that perhaps the jury will “compromise” on at least this misdemeanor charge such that the prosecution doesn’t walk away completely empty-handed.

If that’s all that’s at play here, that’s certainly not a bad outcome for Rittenhouse even if he should be found guilty of this misdemeanor gun charge.  Again, the felony charges against him have life in prison plus 5 years for the gun enhancement hanging over his head.  In contrast, a conviction on this misdemeanor charge carries at worst 9 months in jail and a $10,000 fine—and given his complete lack of any prior criminal record, he’s unlikely to be subject to those maximums.

But there exists a potentially more clever—or, arguably, more sinister—rationale behind the prosecution’s rather desperate arguments to keep this apparently modest misdemeanor gun charge in play—and that is the possibility, however much a stretch, that a conviction on this misdemeanor charge could threaten the core legal defense of self-defense that is required if Rittenhouse is to avoid conviction on the felony charges against him.

Recall that Rittenhouse’s sole defense to each and every one of the felony charges against him is the legal defense of self-defense.  Self-defense is a perfect legal defense, meaning that if the prosecution is unable to disprove self-defense beyond a reasonable doubt, Rittenhouse has zero legal liability for any of his several uses of deadly defensive force the night of August 25, 2020—simply put, his killing of two men, wounding of a third, and (purported) endangerment of two others were simply not crimes if committed in lawful self-defense.

Importantly, there is no dispute that Rittenhouse committed the acts underlying the criminal charges against him—there is no dispute that he shot and killed Rosenbaum and Huber, and wounded Grosskreutz, for example.  His defense is not, it wasn’t me, his defense is, it WAS me, but I had the legal justification of self-defense. Indeed, conceding responsibility for the underlying physical conduct is a necessary condition of claiming self-defense in the first place.

Given this legal reality, what if ADA Binger could take the legal defense of self-defense off the table?  What’s left of the Rittenhouse’s legal argument—it WAS me, but I did it in self-defense—if there is no self-defense?

Well, little more than a confession to the alleged crimes—it WAS me, period.

But is there a path by which ADA Binger could effectively take the legal defense of self-defense off the table, and effectively leave Rittenhouse defenseless against the criminal charges against him?

Well, obviously not every use of force qualifies as self-defense.  Every state’s self-defense law includes conditions that must be met in order for a use of force to qualify as self-defense and be free of criminal liability.  Also, every state’s self-defense law includes exclusions that must be avoided in order for a use of force to qualify as self-defense and be free of criminal liability.

Is it possible that Rittenhouse’s possession of the gun, a possession claimed to be unlawful by the prosecution, could trigger an exclusion that strips Rittenhouse of the legal defense of self-defense?

That’s the question we’re exploring in today’s content, in the context of the misdemeanor gun charge brought against Rittenhouse.

Generally speaking, a person’s legal privilege to use force in self-defense is not conditional on that person not being engaged in unlawful activity—generally speaking.

What I mean by that is it’s not usually a case where just any criminal activity whatever results in the loss of self-defense—only particular forms of criminal activity typically lose one the legal defense of self-defense.

Criminal activity of a violent nature, for example, would certainly lose one self-defense if it qualifies as the conduct of an unlawful aggressor.  Point a gun at a liquor store clerk to initiate an armed robbery, and you’re committing precisely the kind of physically aggressive unlawful activity that losses you self-defense.

Obviously non-violent criminal activity, however, generally does not lose one the legal defense of self-defense.  It is common, for example, for drug dealers to find themselves the subject of armed robberies—I mean, what’s not to like, they have both drugs and money, right?  If a drug dealer is subject to an unlawful threat of imminent deadly force in the course of that armed robbery, in most states that drug dealer fully retains his legal privilege to use deadly force in self-defense.  He may still be on the hook for drug dealing—but that separate criminal conduct does not in any way strip him of his legal privilege of lawful self-defense.

Now, this is not always the case.  Some states do condition self-defense on not being engaged in unlawful activity at the time.  In most cases, the triggering unlawful activity must be a felony—a mere misdemeanor would not be enough.

One example of this is found in Georgia, which conditions its self-defense privilege, defined in § 16-3-21. Use of force in defense of self, on not committing a felony.

This past February, for example, I wrote about a recent Georgia Supreme Court decision that affirmed stripping self-defense from a defendant who killed another in purported self-defense while engaged in a felony-level marijuana transaction:  OOPS! Can You ACCIDENTALLY Lose Your Right to Self-Defense?

Absent the marijuana transaction, this shooting would have been a perfectly lawful use of deadly force in self-defense—but the defendant was not privileged to justify the shooting as self-defense because the act was committed in the context of the marijuana transaction.

Wisconsin does not have this kind of generalized “commit a felony and lose self-defense” provision that Georgia has in place.  Wisconsin also does not have even a generalized “commit a mere misdemeanor and lose self-defense” provision—and for this reason, I’ve frequently noted that even if Rittenhouse were found guilty of the misdemeanor gun charge, that conviction alone would not in any way diminish his self-defense justification.

He might still be on the hook for a misdemeanor gun crime (theoretically), but his use of force in self-defense would still be justified.

There is, however, a weak but possible “back-door attack” on Rittenhouse’s claim of self-defense through this misdemeanor gun charge—and that backdoor attack is if the prosecution can argue that the claimed unlawful possession of the gun, by itself, qualifies as conduct by Rittenhouse intended to provoke an attack against himself, with the intent of then using that attack as an excuse to use deadly force against his attackers.

Essentially, the argument would be that Rittenhouse orchestrated the circumstances that “allowed” for his shooting of Rosenbaum, Huber, and Grosskreutz, and his reckless endangerment of two others—that none of these acts would have occurred but for Rittenhouse’s intentional provocation of being openly armed with his rifle.

So, let’s take a look of how this legal argument might unfold in the context of Wisconsin self-defense law.

When we look at the Wisconsin self-defense statute § 939.48. Self-Defense and Defense of Others, we find that the state of Wisconsin, unfortunately, uses certain legal terms of art in a very different way than most states use those terms—the underlying legal concepts are the same, but the unusual terminology can complication understanding.

(Much the same happened, incidentally, in the Derek Chauvin trial—the charges of “murder” against Chauvin were all claims of the unintentional killing of George Floyd, what would have been called “manslaughter” in every other state—not even the prosecution ever claimed that Chauvin intentionally killed Floyd.  Yet under Wisconsin law, Chauvin is convicted of “murder,” even though most states would call the conduct “manslaughter.” It’s worth noting, too, that his actual sentence of 22 years is much more akin to a manslaughter sentence than a murder sentence, typically life in prison.)

All states will strip a purported defender of the legal justification of self-defense if they unlawfully start the fight—if they are what most states call the “initial aggressor.”

This doctrine is also true under Wisconsin self-defense law, although instead of referring to this person as an “initial aggressor” Wisconsin refers to them as “a person who engages in unlawful conduct of a type likely to provoke others to attack him.” We see that language in paragraph (2)(a) of the Wisconsin self-defense statute § 939.48:

(2) Provocation affects the privilege of self-defense as follows:

(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except …

If ADA Binger can successfully argue that Rittenhouse’s possession of the rifle was unlawful (itself a questionable proposition, for reasons discussed in yesterday’s content), and was also conduct likely to provoke others to attack him, he would appear to have stripped Rittenhouse of the privilege of self-defense to defend against the resultant attack that he purportedly provoked.

Except that under Wisconsin law, as under the law of every other state, there are ways that a person who has as a result lost self-defense in this way can nevertheless regain self-defense as a legal justification—and the circumstances around the uses of force by Rittenhouse would appear to have regained him self-defense even if he had initially lost it as an initial aggressor.   That’s why the portion of § 939.48(2)(a) shared above ends in the word “except.”

That paragraph continues with:

(2) Provocation affects the privilege of self-defense as follows:

(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

So, even if Rittenhouse could be said to have lost self-defense because he engaged in unlawful conduct likely to provoke others, he regains the privilege to use force in self-defense if he both (1) is facing a deadly force threat from those provoked; and (2) has exhausted every other reasonable means to escape that threat.

In the case of Rittenhouse, each use of force by him on the night of August 25, 2020 was apparently used to stop a deadly force threat, and every use of force was committed while he was in flight, or attempted flight, from those attacking him.

So, even if Rittenhouse had lost self-defense by unlawful conduct that provoked an attack, he regained self-defense because the attack upon him was deadly in nature, and he did everything in his means to avoid the fight.

Further, paragraph (2) of §939.48 provides a second means by which a provoker can regain self-defense, found in subparagraph (2)(b):

(2) Provocation affects the privilege of self-defense as follows:

(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.

Again, each use of force by Rittenhouse occurred while he was in flight, or attempted flight, from those attacking him.  He was by all appearances attempting in good faith to withdraw from the fight, and his clear attempts at flight gave adequate constructive notice to his attackers that he was doing so.

So, once more, even if Rittenhouse could be said to have lost self-defense as a provoker, his withdrawal from the fight and constructive notice of withdrawal to his attackers would regain him his legal privilege of self-defense.

But there’s a third way for a provoker to lose self-defense under § 939.48(2), and this involves a particularly aggravated form of provocation—what is commonly referred to as a “provoker with intent.”

What we’ve been discussing so far might be referred to as a “simple provoker”—someone engaged in conduct likely to provoke others to attack, but not intending that others attack.  Someone committing a liquor store armed robbery, for example, points their gun at the clerk in a manner likely to provoke the clerk to attack in self-defense—but triggering that attack response by the clerk is not the intent of the armed robber, who simply wants the cash from the register.

A “provoker with intent,” however, does intend to trigger an attack upon themselves—that’s why they are engaged in the provocative conduct.

A classic example of this is the person shouting at another “go ahead, throw the first punch, throw the first punch, I dare you!”  The person shouting this is not doing so because they want to be punched in the face. They are doing so in order to goad the other person to throw the first punch—to be the initial aggressor—so that they will then have an excuse to use force against that other person.

A great real-life example of such “provocation with intent” can actually be found in the Rittenhouse case–but not being committed by Rittenhouse.  Rather, a classic example of “provocation with intent” can be seen in the conduct of Joseph Rosenbaum earlier in the evening, when he’s threatening first to kill Rittenhouse, and then repeatedly challenged Rittenhouse to initiate the use of force upon him—“Shoot me n-word, shoot me n-word!” captured on video. In combination with the already made threat of deadly force, made against Rittenhouse, this was clearly “provocation with intent” on the part of Rosenbaum. [Note: N-word has been muted in video embedded below.]

The primary distinction between an initial aggressor (what Wisconsin calls a simple “provoker” in § 939.48(2)(a)) and a “provoker with intent” is that the simple “provoker” gain regain self-defense through withdrawal and communication, as already discussed, “provoker with intent” with intent cannot, per § 939.48(2)(c):

(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.

Note that the conduct of the provoker with intent does not need to be unlawful conduct—the statutory provision explicitly allows for “lawful or unlawful conduct.”  It merely requires that the conduct provoke an attack and that the provoker had the intent of using that provoked attack as an excuse to cause death or great bodily harm.

If those conditions are met, the privilege to claim self-defense as a justification for that use of force is eliminated, and no regaining of self-defense is possible.

So, the bottom line is that if ADA Binger can convince the jury that Rittenhouse’s possession of the rifle constitutes “provocation with intent”—that the possession provoked an attack from others with the intent of then having an excuse to use deadly force against those others—then as a “provoker with intent” Rittenhouse loses the legal defense of self-defense.

To be clear, in this scenario Rittenhouse does not lose self-defense solely because his possession of the rifle was found to be unlawful—that alone in no way diminishes Rittenhouse’s claim of self-defense.  So the notion that Rittenhouse loses self-defense simply because his possession of the rifle was purportedly unlawful remains legal nonsense.

Rather, Rittenhouse’s claim of self-defense is threatened if that conduct is accepted by the jury as conduct likely to both provoke an attack upon himself with the intent on his part to then have an excuse to use force upon those who attacked him.

In other words, that Rittenhouse’s possession of the rifle was intended to orchestrate circumstances in which he could use deadly force upon others and wrongly attempt to make that use of deadly force appear to be self-defense.

As noted, the “provocation with intent” attack upon Rittenhouse’s claim of self-defense does not require that the underlying conduct, the possession of the rifle, be actually unlawful.  So if this is the strategy being pursued by ADA Binger, why is he even bothering to push this misdemeanor gun charge?  After all, actual unlawfulness of the conduct isn’t necessary to establish “provocation with intent.”

The difficulty for ADA Binger is that there is no explicit evidence of provocative conduct by Rittenhouse. Unlike the case with Rosenbaum, there is no video or any other evidence that Rittenhouse was attempting to provoke a fight with anyone with the intent of then having an excuse to use force against them—there’s no “shoot me N-word!” conduct by Rittenhouse.

In place of such explicit evidence of provocation with intent, it’s possible that ADA Binger is hoping to have a finding of unlawful gun possession serve in the place of such evidence.  If he can pull that off, he may be thinking, then he can strip Rittenhouse of self-defense on the grounds of provocation with intent.

I suspect we were seeing precisely this kind of effort by ADA Binger in his cross-examination of defense use-of-force expert witness Dr. John Black at the recent October 5, 2021, pre-trial evidentiary hearing (we’ll cover Dr. Black’s testimony at this hearing in greater detail in upcoming content).

With respect to each of the main victims in this case, Joseph Rosenbaum, Anthony Huber, and Gaige Grosskreutz, during his cross-examination of defense use-of-force expert Dr. John Black during the October 5, 2021, evidentiary hearing, ADA Binger repeatedly tried to suggest that the only reason Rittenhouse was attacked in the first place was because he had the gun.  In other words, that his open possession of the rifle itself is what provoked the attacks upon him.

For example, with respect to the shooting death of Joseph Rosenbaum, ADA Binger had the following exchange with Dr. Black, in which he repeatedly suggests that it was Rittenhouse’s possession of the rifle that caused the deadly force confrontation to occur:

With respect to the shooting death of Anthony Huber, ADA Binger has a very similar exchange with Dr. Black:

ADA Binger seems to want to take the same approach with respect to the shooting of Gabe Grosskreutz, but seems to trip up on the incontestable fact that Grosskreutz had a Glock pistol in hand as he was closing on a downed Rittenhouse, and has publicly stated that it was his intent to shoot Rittenhouse dead in the street:

So, does Rittenhouse’s purportedly unlawful possession of the rifle really qualify as “provocation with intent” that would strip Kyle Rittenhouse of self-defense entirely? Well, if it doesn’t—and I’d suggest it doesn’t—it nevertheless certainly seems as if that’s a line of argument being pursued by ADA Binger

And if ADA Binger can strip Rittenhouse of self-defense, he’s got a walk-away conviction on every felony charge against Rittenhouse, because self-defense is the only possible defense against those charges on the facts of this case.

So—to circle back to the original question posed in today’s content, of why ADA Binger is so aggressively pursuing this apparently petty misdemeanor gun charge against Rittenhouse that otherwise would seem to be small potatoes in the greater scheme of the five serious felony charges and life sentence already hanging over Rittenhouse’s head, perhaps we have an answer.

I feel obliged to note that in my professional legal opinion this “provocation with intent” strategy of ADA Binger, assuming it is his strategy, has little chance of success on anything resembling the legal merits—if only because of the utter lack of any evidence of “provocation with intent “on the part of Rittenhouse.

On the other hand, ADA Binger doesn’t have all that much to work within this case, given the overwhelming degree to which the evidence and law are consistent with the lawful use of deadly force in self-defense by Rittenhouse.

When prosecutors bring these types of cases, presumably because “the power of the politics compels them,” and then they almost invariably find they have little evidence and law to work with, they are also compelled to reach for lines of argument that are rather far beyond reason and legal merit.

There’s an old cliché in the legal profession that when the facts are on your side, you pound the facts; and when the law is on your side, you pound the law; and when neither the facts nor law are on your side, you pound the table.

I expect we’ll be seeing a lot of “pound the table” by ADA Binger, as we’ve already seen in the pre-trial hearings to date, and this type of extremely unpromising “provocation with intent” attack on Rittenhouse’s claim of self-defense is precisely the kind of “pound the table” approach I’d expect from a prosecutor in these circumstances.

Frankly, I hope to see Judge Schroeder dismiss the misdemeanor gun charge, either for reasons of unconstitutional vagueness or by finding that the evidence simply doesn’t support the charge—that the relevant statute doesn’t apply to Rittenhouse on the facts of this case.

If the misdemeanor gun charge does go forward, and I see little support for it in the evidence, but even if Rittenhouse were found guilty of this charge I see little threat to his claim of self-defense—at least on the actual legal merits.

If the jury finds itself looking for a reason to completely unravel self-defense entirely, however, and simply convict Rittenhouse of all the charges regardless of the lack of legal merit to support such a verdict, a desperate effort by the prosecution to characterize this misdemeanor offense as the “provocation with intent” needed to crush the legal defense entirely may provide the jury with just the excuse they need to do exactly that.

In which case Rittenhouse would be facing a sentence of life in prison—plus 5 years for the gun sentencing enhancement.

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

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

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Comments


 
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henrybowman | October 13, 2021 at 8:50 am

“ADA Binger repeatedly tried to suggest that the only reason Rittenhouse was attacked in the first place was because he had the gun. In other words, that his open possession of the rifle itself is what provoked the attacks upon him.”

So by the same token, if my open possession of a Rolex provoked attacks upon me, it’s my fault.

Watch what skirts you wear in Wisconsin, ladies! Don’t go “looking for it!”


     
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    f2000 in reply to henrybowman. | October 13, 2021 at 9:13 am

    Was going to comment along the same lines. Binger is arguing that by engaging in the constitutionally protected act of carrying a firearm, you’re the one creating a deadly force situation that renders you unable to lawfully use lethal force. It used to be that exercising your rights couldn’t be a predicate for surrendering your rights. Obviously, there’s a very active cadre of prosecutors and other activists that want to use their office to remove the right to self-defense by legal jeopardy where they can’t succeed by legislation.


     
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    Milhouse in reply to henrybowman. | October 13, 2021 at 10:50 am

    If that was your intention, then under Wisconsin law it is indeed your fault, and you are not allowed to defend yourself. The problem is proving that it was your intention. Ditto with a woman walking down dark alleys wearing little, with a gun hidden behind that little, for the purpose of flushing out would-be-rapists so she can shoot them. In Wisconsin that would make it her fault.

    (Which strikes me as inherently unconstitutional, but I can’t point to the specific provision in the constitution that it would violate; the best I can say is that self-defense is an absolute right that the framers thought so obvious that it didn’t need to be enumerated, and therefore it is protected by the ninth amendment.)

      Far too many times, prosecution (persecution) seems to be determined by narrative rather than legal principles.


       
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      mailman in reply to Milhouse. | October 13, 2021 at 11:40 am

      Except here we have evidence that the pedophile’s intention was to kill Rittenhouse. I guess once a child rapist always a child rapist. Democrats eh.


         
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        Milhouse in reply to mailman. | October 13, 2021 at 5:00 pm

        We’re not talking about his intention, we’re talking about Rittenhouse’s. Under WI law, if the prosecution can prove that his intention was to provoke rioters to attack him for the express purpose of being able to defend himself against them, then he had no right to defend himself and was required to allow himself to be slaughtered. Of course proving that is going to be almost impossible, but Mr Branca is suggesting that the prosecutor is so desperate that this is the best idea he could come up with.


         
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        henrybowman in reply to mailman. | October 14, 2021 at 8:39 am

        Nah, it’s worse than that. You’d not only have to prove that the guy’s intention was to kill Rittenhouse, you’d have to prove that Rittenhouse knew that was his intention before shooting him. Luckily, RIttenhouse had all the proof he needed from the guy’s overt actions, he didn’t have to visit the Thoughtcrime Zone.


       
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      taliwind in reply to Milhouse. | October 13, 2021 at 5:11 pm

      “The problem is proving that it was your intention.”

      When I read Andrew’s analysis of this it seemed to me that no criminal intent was necessary to show “provocation with intent.”
      The mere open carrying of an AR-15 is enough to provoke an attack and by provoking the attack the open-carrier cannot claim self-defense if he has to shoot the attacker.
      As other commenters have noted, this prosecution approach, if successful, would open the doors for criminalizing many “provocative” actions in Wisconsin.


         
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        Milhouse in reply to taliwind. | October 13, 2021 at 9:51 pm

        No, you have badly misunderstood.

        Of course no criminal intent is necessary. That is explicit in the law. I don’t understand how you could possibly have thought I was saying you needed criminal intent.

        But it is necessary that you have the specific intent of provoking people to attack you, so you can use that as an excuse to defend yourself against them. In henrybowman’s example, if the prosecution can prove that the reason you went out flaunting your Rolex watch was not because you think you look good in it, but rather in order to provoke attacks on you, because you wanted an excuse to fight the attackers, then Wisconsin says you have to let them do whatever they like to you and not fight back. But they have to prove it, and that’s going to be very difficult for them.


           
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          Colonel Travis in reply to Milhouse. | October 13, 2021 at 11:44 pm

          This isn’t entirely true. The aggressor in a fight can change. It is true that if you’re the one who initiated it, you cannot claim self-defense. This isn’t just a Wisconsin law, this is the law everywhere.

          But let’s say you went looking for a fight, got into one then ultimately got your senses back and said – OK, this was dumb and you walk away, you have stopped being the aggressor. Wisconsin law (like other states) allows for this reversal in roles, saying you need to give “adequate notice” to the person that you are withdrawing. I can see how adequate notice might be tough to explain if the only witnesses were you and your opponent, no video footage from anywhere, etc. But if you stop the fight, give notice you’re stopping, and if the other person then attacks you and you defend yourself, you are no longer the aggressor. At that point you can tick off that one box in the checkbox list for a claim of self-defense.


           
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          Milhouse in reply to Milhouse. | October 14, 2021 at 2:03 am

          It is true that if you’re the one who initiated it, you cannot claim self-defense. This isn’t just a Wisconsin law, this is the law everywhere.

          Wisconsin is the only place I’ve ever heard of where provoking the other person to attack you, especially where the provocation was perfectly legal, counts as “initiating it”. I’m dubious that it’s constitutional.

          Even back when “fighting words” was an exception to the first amendment, they did not give the target a license to attack, and the person who said the words was entitled to defend himself. Except, apparently, in Wisconsin.


         
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        Think38 in reply to taliwind. | October 14, 2021 at 2:22 pm

        “As other commenters have noted, this prosecution approach, if successful, would open the doors for criminalizing many “provocative” actions in Wisconsin.”

        That position would also be problematic under Wisconsin’s constitution:

        Article I, § 25 of the Wisconsin Constitution states: “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”


           
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          Milhouse in reply to Think38. | October 14, 2021 at 4:06 pm

          That’s not relevant here. Tailwind badly misunderstood the issue. Nobody is suggesting criminalizing anything merely for being provocative. The issue here is that Wisconsin law apparently says that if you do anything, even if it is perfectly legal, with the intent of provoking an attack on you, then if you get what you wanted you are not entitled to defend yourself from it. That doesn’t make what you did a crime; it just means that now you have to die for it. And the key is not the act but the intent behind it. So the constitutional provision you cited doesn’t affect that.


 
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The Packetman | October 13, 2021 at 9:31 am

I watched your Youtube content for this post last night … it was, as usual, excellent.

While watching Nick Rekieta’s video fisking of the cross examination of Dr Black, Rekieta kept noting during this exchange that Black should not answer the hypothetical (as irrelevant) because there WAS a firearm involved. It also seemed to me that any answer to the question was speculation, as whether any of the victims wouldn’t have attcked but for the gun can’t be determined.


 
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mailman | October 13, 2021 at 9:42 am

Democrats didnt have any evidence that black guy was murdered by the police officer from the completely Democrat controlled police department in Minneapolis either. And yet here we are.

Evidence means fuck all to Democrats. They have their narrative. Thats all that matters to those fucks.


 
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Dathurtz | October 13, 2021 at 11:33 am

Who sees a guy with a rifle and is provoked into attacking them? That’s crazy.


     
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    henrybowman in reply to Dathurtz. | October 13, 2021 at 12:46 pm

    Well, the douche with the skateboard actually grabbed the muzzle to pull the rifle away from Rittenhouse. He may as well have said, “Here, Kyle, let me help you aim.”


       
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      Dathurtz in reply to henrybowman. | October 13, 2021 at 1:54 pm

      Yeah. I get trying to disarm the person one wants to injure. But, if I am gonna pick a victim, then it probably wouldn’t be the guy with a semi-auto rifle on a sling on his chest. Seems like a great way to die.


     
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    cashin in reply to Dathurtz. | October 13, 2021 at 2:21 pm

    I think this line of thinking is what gets, even a stacked jury, a vote to acquit.

    Rosenbaum is chasing Rittenhouse even though the latter is the one armed.

    What is his intention besides to inflict harm? I don’t see it.


       
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      Milhouse in reply to cashin. | October 13, 2021 at 5:05 pm

      Well, if he were alive to tell us what he was thinking, he would claim that his intention was to disarm this maniac before he hurt someone. That he was the hero of this story, trying to protect the public, and Rittenhouse is the villain. He’d be lying, but that’s undoubtedly what he’d say.


         
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        henrybowman in reply to Milhouse. | October 14, 2021 at 8:42 am

        And before all this happened, he’s on video lighting fires in dumpsters, because he’s just that kind of a hero.


           
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          Milhouse in reply to henrybowman. | October 14, 2021 at 9:52 am

          Well, of course. That wasn’t violence, it was mostly peaceful protest. Speech is violence; silence is also violence; but actual violence is non-violent resistance.

          But then he saw this right-wing white-supremacist (i.e. innately violent) maniac with a weapon (which is also inherently violent), and he knew he had to try to protect the public by disarming the monster, so he heroically ignored the risk and died a martyr.

          Or something like that.


     
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    Observer in reply to Dathurtz. | October 13, 2021 at 8:15 pm

    Yep, I have a hard time believing that the judge will be willing to buy the argument that Rittenhouse’s simply having a rifle in his possession, without anything more (like taunting words or gestures) was a deliberate provocation to try and get others to attack him. Seems to defy common sense.


       
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      henrybowman in reply to Observer. | October 14, 2021 at 8:44 am

      It does defy common sense. Yet I can point you to many specific instances where individuals in the “guns bad” movement not only think this way but have said it and written it.


     
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    broomhandle in reply to Dathurtz. | October 14, 2021 at 2:24 pm

    Well, I don’t think it applies here, but what if a guy with a rifle showed up to Sunday worship locked and loaded. There could be circumstances that would justify immediate attack, but this is not that situation.


     
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    Think38 in reply to Dathurtz. | October 14, 2021 at 2:25 pm

    What about the videos of all the other individuals carry rifles. None of them were attacked. Why not?


 
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Jonathan Cohen | October 13, 2021 at 11:46 am

I think that Rittenhouse will get a fairer trial than Chauvin. The racial background and the fear of violence affected every thing about the Chauvin trial. Now, more than a year out from the George Floyd riots, the public is more afraid of crime than political violence and as both Rittenhouse and his victims were white, the racial angle is more remote.

I thought that the defense strategy in the Chauvin case was a loser from the start. Arguing over whether Floyd died from an overdose in the hopes that it would result in at least one juror holdout was never likely to succeed. After months of riots and repeated exposure on TV and the internet to the 9.5 minute video of Chauvin with his knee on Floyd made the desirability of conviction overwhelming.

The most damning testimony against Chauvin was getting an “expert” to say that anyone else subject to the same nine and a half minutes would have died. That was speculative nonsense. The attorney should have gotten down on the floor with Chauvin kneeling on him and a couple others holding him down. Then after getting up he should have asked the “expert” if he was indeed dead.

There is a reason juries usually give police a certain amount of leeway. Their job involves making instantaneous decisions in perilous situations. In retrospect Chauvin’s conduct was an excessive use of force but he had no reason to believe he was endangering Floyd. Furthermore, Floyd was a very large man, using force to refuse a lawful felony arrest, obviously out of control due to some form of intoxication and it was the duty of police to arrest him. If it didn’t totally exonerate Chauvin, it should at least have mitigated his sentence.

That case wasn’t about Chauvin and Floyd. It was about whether America was guilty of systemic racism and the choice for the jury was convict to prove that America isn’t racist or acquit and confirm that it is. If the races of Chauvin and Floyd were reversed, chances are that Chauvin would not only not be in jail, he would still be working as a policeman in Minnesota.


 
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ruralguy | October 13, 2021 at 11:47 am

The DA wants to charge him as an adult for the felony charges, but wants to charge him as a minor for the misdemeanor gun charge?

As a father of two teenagers, near Kyle Rittenhouse’s age, I see the same youthful thinking in Kyle that I see in my teenagers and their friends. When a child turns 18, the government classifies them as an adult, but as many parents know, an older teen can be very mature, with good judgements, but their thinking is still youthful. Classifying a child under 17 as an adult became rightfully accepted, to deal with teenage criminals who are incorrigible, Kyle Rittenhouse is hardly incorrigible. Worse yet, like the Chauvin DA, this DA seems to have an illegal ulterior motive in refusing to treat this case as it would be handled with any other defendant facing similar charges. Kyle was 17 when the incident occurred. This DA is the one who should be charged with a crime — abuse of Court processes against a minor.

I’ve said before, the prosecution *has* to get the gun charges into the trial, because they’re betting everything on portraying Kyle as some murderous fiend out to shoot people instead of a good-intentioned kid who went into a dangerous situation with a group to protect property and save lives.

He got separated from his group while trying to help somebody, and was promptly ambushed by a thug who wanted to grab his gun and most probably shoot him with it. The thug got a slug for his effort, and so did two of the three other thugs who tried to attack him while he was running over to the police. (Which reminds me, did the thug who attacked him with the high kick ever get identified? Because all I saw in the videos was him running away.)

So, ultimately, this trial will be decided less on the legal merits then on the effectiveness of the PR campaign by the DA’s office.

Going forward, I suspect any competent attorney, and anyone facing a trial should seriously consider how the PR campaigns may drive the results, and how to manage them.

Not a healthy state for justice, but one must deal with what is, rather than merely what one wishes may be.


     
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    Colonel Travis in reply to Voyager. | October 13, 2021 at 2:24 pm

    I doubt the trial will be decided less on the law than PR, I have faith in juries more than I do politically motivated prosecutors. But jerk prosecutors like this one don’t care about merit and fairness. They care about winning. They will do anything they can legally do to make you look like the biggest murdering asshole in history.

    If, God forbid, you are ever in a self-defense situation and shoot someone, especially if the one you shot is killed, you better have an attorney who plays the PR game masterfully. The days of “no comment, the truth will all come out in court” are over. The resources the government has are endless. They will do everything they can to send you to prison.

    Anyone who carries, join CCWSafe or something so you don’t get wiped out financially in your legal fight.


       
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      Voyager in reply to Colonel Travis. | October 13, 2021 at 4:55 pm

      I think there’s an argument that, the fact that this case is even moving to trial, given everything that is known about it, means it has already had major decisions made based on the PR spin rather than the law.

      An honest, impartial judge would have already dismissed this. The fact that that hasn’t says we’ve got another judge who’s listening to the mob instead.


         
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        Colonel Travis in reply to Voyager. | October 13, 2021 at 6:07 pm

        Rittenhouse already went through a preliminary hearing, where it could have been tossed and it wasn’t. I don’t know how a judge could dismiss it right now when a court already said there was enough probable cause to go to trial. It would have to be some serious fubar.

        Even Rittenhouse’s lawyer asked for 2 of 6 charges to be dismissed at the preliminary hearing, not 6 of 6. Two people were killed and another injured, that’s a big deal, even if you acted lawfully. The problem here is that you cannot prove you acted lawfully without a trial – unless you get a judge before the trial to dismiss the case on self-defense grounds, and those cases do happen but I think that is very rare. It is prosecutors who typically decide whether to drop a case.

        A claim of self-defense is called an affirmative defense. You are saying – yes, I did that. Now he has to defend those killings in court, or else he’s going to prison probably for the rest of his life. You don’t defend your self-defense claims in a preliminary hearing, and I think that is why Rittenhouse’s lawyer didn’t ask for the entire thing to be dismissed. There is no question he killed people. The question is whether it was legal. I think it was, but that’s not how our system works.


 
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henrybowman | October 13, 2021 at 12:49 pm

Kyle is still in need of financial support:
https://freekyleusa.com


 
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George_Kaplan | October 13, 2021 at 7:17 pm

What’s with the “… shoot me n-word!” or “Note: N-word has been muted in video embedded below”? Isn’t it just simpler to say nigger? And why bother muting it? I mean we’re not actually talking an actual offensive term. Nor is it used in any logical sense – the guy using it is calling a White guy Black, which is incoherent.

TY Mr. Branca. Another article that was straightforward, even if it was alarming. Provocation with intent, seems like a very slippery slope.
Hope they don’t pull that off. SMH

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