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Kyle Rittenhouse Case: Should Misdemeanor Gun Charge Just Be Dismissed?

Kyle Rittenhouse Case: Should Misdemeanor Gun Charge Just Be Dismissed?

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.

As you all know, Kyle Rittenhouse has been charged with a number of crimes for his conduct in Kenosha WI on the night of August 25, 2020, amidst violent rioting in the city fomented by elements of Antifa, Black Lives Matter, and sympathizers of those groups.

Most of the charges against Rittenhouse are serious felonies, including the charge of first-degree reckless homicide for the killing of Joseph Rosenbaum, first-degree intentional homicide for the killing of Anthony Huber, attempted first-degree homicide of Gaige Grosskreutz, and two counts of first-degree reckless endangerment.

The intentional homicide charge carries a sentence of life in prison, the attempted first-degree intentional homicide charge and the reckless homicide charges carry a sentence each of 60 years in prison, and the reckless endangerment charges carry a sentence each of 12 years in prison. (All these sentences would be supplemented by an additional five years because of the gun use enhancement).

Then we have this odd little outlier gun charge—possession of a dangerous weapon by a person under 18, per WI statute § 948.60. Possession of a dangerous weapon by a person under 18.  This is a class A misdemeanor under Wisconsin law, punishable by up to 9 months in jail and a fine of up to $10,000.  If this were the only charge on which Rittenhouse were convicted, and given that he has no prior criminal history, he may well face no jail time whatever and only a relatively modest fine.

The bringing of this relatively modest charge, then, raises a couple of interesting questions.

The first question is, upon close examination does it appear that evidence exists to support probable cause to believe that Kyle Rittenhouse even violated this gun law at all?

More specifically, the defense is arguing that a plain-English reading of the statute rather obviously excludes the conduct of Rittenhouse on the night of August 25, 2020.  Accordingly, the defense filed a motion with Judge Schroeder to have this particular misdemeanor charge dismissed, and the arguments made on October 5, 2021 around this motion are what we cover here in today’s content.

In response to the defense argument for dismissal, the State argues that the court should read beyond the plain-English of the statute and apply a less concrete interpretation of legislative intent to find the statute applicable to defendant Rittenhouse.

So, that’s the first question: Does the charge even apply to Rittenhouse as a matter of law.

The second question is, even if a rational argument exists for finding Rittenhouse criminally liable under this statute, why is the prosecution pursuing this mere misdemeanor gun charge when has already charged Rittenhouse with no fewer than five serious felonies, three of which would put Rittenhouse in prison for much of, or for the entirety of, the remainder of his life?

More specifically, does the prosecution simply have such a lack of confidence in the felony charges that it’s throwing in this misdemeanor as a “safety charge” to try to ensure at least some level of conviction of Rittenhouse?  Or might there be a more clever—or, arguably, more sinister—motive to the inclusion (and rigorous defense) of this charge by the state?

So, let’s address each of those in turn, beginning, naturally, with the first question.

Also, given how lengthy this analysis turned out, we’ll be dealing with it as a two-parter in terms of content, with each part dealing with one of the two key questions raised by this gun charge.

Part 1, this part, will cover whether the gun charge is at all applicable to Rittenhouse on the legal merits in the first place.

Part 2, coming next, will address the second question of exploring why the prosecution is pursuing this apparently minor misdemeanor gun charge against a defendant already facing five serious felony charges.

So, without further ado, let’s dive into that first question.

Is the Gun Charge At All Applicable to Rittenhouse in the First Place?

Perhaps the single greatest complication in understanding whether this gun charge under § 948.60 is at all applicable to Rittenhouse in the first place is that the statute itself is full of various conditions and exceptions that go on to reference other statutes that themselves are full of various conditions and exceptions.

One important provision of § 948.60 reads as follows:

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

Kyle Rittenhouse was only 17 years of age at the time of these events, so he certainly meets the “under 18” criteria of §948.60.

He was also certainly in possession of a deadly weapon, in the form of the AR rifle, as learned so fatally by Joseph Rosenbaum (reported child molester) and Anthony Huber (reported domestic abuser), and with maiming consequence by Gaige Grosskreutz (reported weapons criminal) when they made the ill-informed decision to attack an armed person.

So, does that mean that Kyle was committing a Class A misdemeanor under § 948.60?

Well, I suppose, if those were the only conditions of §948.60 that must be met in order to have committed the specified Class A misdemeanor.

But they are not the only conditions of §948.60. Which is why it’s always important, especially in the context of statutory construction, to “read the whole thing.”

Other provisions of §948.60 relevant to the facts of Kyle’s possession of the rifle can be found in paragraph (3)(c), which reads in relevant part:

(3)(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 in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593

OK, so even if a person under 18 years of age triggers the conditions of paragraph (2)(a) of § 948.60, they’ve still not committed a violation of § 948.60 unless they also trigger the conditions of paragraph (3)(c) by violating either § 941.28, which pertains to short-barreled rifles, or are not in compliance with § 29.304 and 29.593, which pertain to hunting and use of firearms.

Well, was Rittenhouse in violation of § 941.28 or was he not in compliance with § 29.304 and § 29.593?  If the answer is “yes” to any of those, Rittenhouse appears liable to misdemeanor conviction under § 948.60.  But if the answer is “no” for all of those, Rittenhouse appears not subject to § 948.60 at all.

Let’s take a look first at §941.28. Possession of short-barreled shotgun or short-barreled rifle.

In summary, for our purposes here, § 941.28 paragraph (2) makes it a felony for anyone to possess a short-barreled rifle, which the statute defines in paragraph (1)(b) as:

a rifle having one or more barrels having a length of less than 16 inches measured from closed breech or bolt face to muzzle or a rifle having an overall length of less than 26 inches.

In this case, however, not even the prosecution is arguing that the AR rifle possessed by Rittenhouse qualifies as a short-barreled, so Rittenhouse cannot be liable under § 948.60 based on this provision of § 941.28.

That leaves the possibility that Rittenhouse was “not in compliance” with the hunting and use of firearms provisions of § 29.304 or § 25.593.

Let’s first consider the first of those hunting and use of firearms provisions, §29.304. Restrictions on hunting and use of firearms by persons under 16 years of age.  The subsections of this statute place various degrees of restriction on hunting and the use of firearms by persons who are under 12 years of age, who are between 12 and 14 years of age, and who are between 14 and 16 years of age, respectively.

The question is then, was Rittenhouse “not in compliance” with this statute.

The defense argument, presented by Attorney Chirafisi, is straightforward, and based on a plain-English reading of the § 29.304—the statute applies only to persons “under 16 years of age,” and Rittenhouse was 17 years of age on the night of the events of August 25, 2020.  In short, then, the defense argues Rittenhouse cannot be “not in compliance” with § 29.304, because by definition § 29.304 simply does not apply to 17-year-olds at all.

Judge Schroeder expressed objections to this interpretation of § 29.304, however, in terms of “the exception swallowing the rule.”

A basic presumption of statutory interpretation is that the legislature must have had some rational purpose in creating the statute in the first-place.  If a plain-English reading of the statute results, apparently irrationally, in the statute having no effect, then it falls to the court to read past the plain-English reading of the statute to attempt to discern some rational legislative intent behind the statute.

A simple example would be a statute that provides the rule that “No one may ride a bicycle over 100 miles per hour within the city limits,” followed by the exception that “This provision shall not apply within the city limits.”

When one applies the exception there is nothing left of the rule—the exception has “swallowed” the rule.  A plain-English reading of this hypothetical statute makes it pointless—but surely a rational legislature had some intent behind this statute, and ought the court not read past the plain-English reading to discern that intent.

In the case of Rittenhouse, Judge Schroeder is apparently troubled by the notion that the title of § 948.60 reads “Possession of a dangerous weapon by a person under 18,” but that the application of the exception referencing § 29.304 completely excludes anyone who happens to be under 18 years of age but over 16 years of age—such as (then) 17-year-old Kyle Rittenhouse.

In Judge Schroeder’s view, the “exception” that effectively excludes everyone who is 17 years of age appears to “swallow” the “rule” apparently intended to apply to everyone under 18 years of age.  This apparent irrationality suggests that there must be some hidden intent behind these partnered statutes that would allow them to apply to a 17-year-old.

Frankly, this seems to me an unconvincing view of the matter, because in fact the “exception” does not entirely “swallow” the “rule.”  A 17-year-old can still be found in violation of § 948.60, as a person under 18 years of age, by violating the statute without falling into the exception.

For example, had 17-year-old Rittenhouse been in possession of a short-barreled rifle (one with a barrel of less than 16”), he would have been in violation of § 948.60 despite his age of 17 years.  The “rule” remains “unswallowed,” despite the “exception.”

Similarly, had 17-year-old Rittenhouse been engaged in hunting and not in compliance with § 29.304 or § 29.593, he would have been in violation of § 948.60 despite his age of 17 years. Again, the “rule” remains “unswallowed,” despite the exception.

Judge Schroeder would counter my own view here by arguing that the real “rule” of concern here is a generalized intent by the legislature to prohibit persons under 18 years of age from walking around in public with deadly weapons, simply as a matter of public policy, and that the defense reading of the exclusion leaves that rule “swallowed” in the context of 17-year-olds—and this cannot have been the legislature’s intent.  The problem with this view is that this supposed public policy “rule” is never explicitly stated in § 948.60, so claiming this unstated “rule” requires discerning the ambiguous legislative intent of a legislature that no longer exists.

Here’s the exchange between Counselor Chirafisi and Judge Schroeder on this argument as presented at the October 5, 2021 evidentiary hearing:

For what it’s worth, Assistant District Attorney Binger himself appears to largely concede that that § 29.304 does not apply to Rittenhouse, for the reasons stated by the defense—by its own plain-English reading § 29.304 does not apply to 17-year-olds, and one cannot be found to be in “non-compliance” with a statute that doesn’t apply to you in the first place.

He does, however, hedge his bets by arguing that § 29.304 was intended to apply only to hunting activities, and Rittenhouse was not hunting, so Rittenhouse should qualify for the exception of § 29.304—but this is not an entirely coherent argument.

As for the second hunting-related statute, § 29.593, non-compliance of which could make Rittenhouse subject to misdemeanor conviction under § 948.60, the defense argues that § 29.593 applies only to hunting activities, that Rittenhouse was clearly not engaged in hunting activities, and therefore § 29.593 does not apply to Rittenhouse any more than does § 29.304.  In short, once again one cannot be found to be in “non-compliance” with a statute that doesn’t apply to you in the first place.

This is where ADA Binger focuses his own argument that Rittenhouse is liable under § 948.60, however, precisely on the grounds that Rittenhouse did “fail to comply” with § 29.503.

More specifically, whereas the defense argued that Rittenhouse cannot be in non-compliance with § 29.503 because he was clearly not engaged in hunting, ADA Binger argues that Rittenhouse was by definition not in compliance with § 29.503 precisely because he was not engaged in hunting.

ADA Binger concedes that Rittenhouse could never be found not in compliance with the previous hunting statute, § 29.304, because it applies only to people under the age of 17 years, and Rittenhouse was 17.  As a 17-year-old it was simply impossible for him to be in compliance with § 29.304, and one cannot be expected to do the impossible.

This second hunting statute, however, § 29.593, has no particular age restriction relevant to the facts of this case, and so in theory Rittenhouse could have met the conditions of this hunting statute—for example, by obtaining a hunting certificate or license.  And because Rittenhouse could have met, but did not meet, the conditions of § 29.593 he was effectively “not in compliance” with the statute, thus triggering liability under § 948.10.

ADA Binger then argues that if the court declines to adopt this interpretation, then the “exception” would indeed have “swallowed” the “rule,” clearly an effort to play into Judge Schroeder’s own stated concern earlier in this discussion—but as I’ve already noted, this is not really true.

Here’s ADA Binger’s argument as presented at the October 5, 2021 evidentiary hearing:

Ultimately Judge Schroeder declined to grant the defense motion to dismiss this misdemeanor gun charge, not on the actual legal merits of the argument but simply because he wanted more time to consider those arguments.

On his own concerns about “the exception swallowing the rule,” Judge Schroeder himself noted that sometimes the legislature deliberately creates law with this intent, however irrational it may appear, as part of the political “sausage making” of statutory law. Certainly, Judge Schroeder expressed awareness of other demonstrable instances of the legislature having done precisely this.  So, if the “swallowing” was intentional, there’s really no need to dig further into “legislative intent”—it’s right there before us.

Judge Schroeder also raised a broader, and arguably more compelling basis for granting the defense motion to dismiss the charge—and that is on the grounds of vagueness.

There is a fundamental doctrine of US Constitutional law—based on the due process provisions of the 5th Amendment and incorporated (or applied) to the states through the 14th Amendment—that a law is unconstitutional and invalid if a normal person reading it would be unable to understand precisely what conduct was being deemed unlawful.  Such a law is deemed “unconstitutionally vague,” and without effect.

In the October 5 arguments on this issue of the gun charge under § 948.60, Judge Schroeder stated:

I’m going to deny the motion for now, but that’s no guarantee I won’t re-examine this. I just don’t, I don’t feel comfortable. It’s a penal statute, and to hold people accountable for laws that, well, the basic rule, and there’s plenty of interpretation on it, but the basic concept of the rule is that it has to be clear to ordinary people. And if you’ve got, you know, judges spending hours here, and hours more at an appellate level, trying to figure out exactly what the statute says, I mean, how does that serve the people? So I’m going to deny the [defense] motion [to dismiss the misdemeanor gun charge under § 948.60] subject to reconsideration without motion [without requiring the defense to object again to the charge].  I want to give more study this. And believe me it’s not because I haven’t looked at it extensively at this point.

This commentary suggests to me there is a strong argument that Judge Schroeder will dismiss this charge simply on the basis of unconstitutional vagueness, without ever having to get to the legal merits of the arguments on this charge.

Should he have to get to the legal arguments, however, it’s my own professional opinion that a plain-English reading of § 948.60 excludes application to Kyle Rittenhouse on the legal merits.

OK, folks, that’s all I have for you on this first question of this analysis, of whether the gun charge is at all applicable to Rittenhouse on the legal merits in the first place.

In Part II, we’ll address the second question—exploring why the prosecution is pursuing this apparently minor misdemeanor gun charge against a defendant already facing five serious felony charges.

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

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Comments


 
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 10
Martin | October 12, 2021 at 8:22 am

The charge shows that the government would prefer that Kyle be dead rather than have had possession of a weapon. That they are prosecuting a young man shown on video to be running for his life from pursuers that clearly meant to hurt or kill him shows that as well.


     
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    LSBeene in reply to Martin. | October 12, 2021 at 4:06 pm

    To me – the REAL intent is to discourage folks standing up for themselves – IF – the person doing the action is not politically aligned with our DC elite.

    I said this when it happened: The REAL reason for the outrage and required prosecution was that Kyle won. Kyle was just “a citizen” – showed up to Kenosha that day to work, stayed to protect as a medic, and when confronted by violent rioters (see the videos? wow) – he protected himself with EXACTLY the amount of lethal force necessary – shooting not one innocent civillian (so much for the “wild west” theory) – and won.

    THAT is what the left was freaking out about.

    People intimidated by the mob standing up? Saying no? Pushing back? That cannot stand – to them.

    Night after night, in city after city, gunshots, stores (whole blocks) burned down, people mugged, shot, robbed and openly beaten if expressing the “wrong” opinion.

    Folks being mobbed at restaurants, all of us locked up but rioters allowed to do mayhem …

    Someone standing up against that? And surviving a deadly clash? And not remaining at home as told – while watching “mostly peaceful protests” happen on TV?

    Nope the left is pissed Kyle stood up to their beloved protesters and said no. THAT is why he’s being prosecuted.

    Any huge prosecutions of rioters on TV? No?

    There ya go.


 
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The Packetman | October 12, 2021 at 9:00 am

Right at the end of that portion of the hearing, Judge Schroeder allowed attorney Pierce to submit some legislative history that may (or may not!) help clarify the issue.

If it doesn’t help, I’d think that would further support a vagueness ruling …


     
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     1
    DaveGinOly in reply to The Packetman. | October 12, 2021 at 10:55 am

    I’m thinking that legislative history may show that language that would have pertained to 17 year-olds was struck or modified, thus creating the apparent age gap in the statute, and that the title wasn’t subsequently revised to reflect the change.


       
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      DaveGinOly in reply to DaveGinOly. | October 12, 2021 at 12:36 pm

      On second thought, the “under 18” part of the statute refers to the SBR violation, and the hunting sections, while they apply to persons “under 18”, apply specifically to those under 17. The only possible charge that could apply to KR, as someone “under 18” is the SBR charge. The “hunting” sections don’t apply to him. The confusion is caused because 948.60(3)(c) refers to two age classes (“under 18” and “under 17”), both of which are “under 18 years of age.” The legislature meant for the SBR charge to apply to those 17 and under, and the hunting violations to apply only to those 16 and under.


         
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        tbonesays in reply to DaveGinOly. | October 15, 2021 at 3:43 am

        Even if that interpretive branch held water, the rule of lenity should excuse KR on the grounds the statute is ambiguous. You can’t say that it clearly states a 17 year old may not possess a full length rifle.


 
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 6
The Friendly Grizzly | October 12, 2021 at 9:34 am

Even if Kyle walks out of court with all charges dropped or ruled not guilty, he is destroyed for life.


     
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    The Friendly Grizzly in reply to The Friendly Grizzly. | October 12, 2021 at 9:56 am

    ^^^ is still destroyed….


       
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       8
      docduracoat in reply to The Friendly Grizzly. | October 12, 2021 at 10:05 am

      Griz,
      I have to respectfully disagree with you.
      In terms of armed self defense, Kyle did everything tactically correct.
      If he beats these charges, he has a bright future ahead of him in the gun world as a speaker, and trainer.


         
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         5
        The Friendly Grizzly in reply to docduracoat. | October 12, 2021 at 10:49 am

        The press will hound him incessantly, the protest groups will assure his being toxic to any employer. I hope he does end up in firearms training or some other profession where he is resistant to harassment.

          His life will be “destroyed” to the extent he wants to participate in the segment of society controlled by the Left. For the rest of us, he is minimally a person who justifiably exercised his inherent right to self defense, and maximally a person who was unjustly persecuted for purely political purposes. The latter makes him a sort of hero.
          If he is convicted, I will consider him a political prisoner. Typically what we used to see in what we considered nations governed by tyrannical dictatorships. Unfortunately, we see more and more of that when we look in the mirror.
          Also to your point, the part of our world controlled by the Left is growing and growing rapidly. Perhaps/probably uncontrollably so. Being excluded from it certainly limits what you can do with your life. For example, if found innocent of all charges, he will never get admitted to law school, certainly not one that would be considered elite. My guess is that, even if found not guilty, somehow he will never again be allowed to own a firearm. Legally.
          It is obvious what part of “our” society I inhabit.


           
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           1
          henrybowman in reply to The Friendly Grizzly. | October 13, 2021 at 2:58 am

          Gun establishments looking to hire trainers and spokespeople will laugh in the face of cancel mobs. They’ve all already been cancelled anyway.


         
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         2
        Arminius in reply to docduracoat. | October 12, 2021 at 10:53 am

        I disagree as well. There are a lot of business people on the 2A/freedom who would hire him. If that’s what you mean by “is still destroyed.”


     
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    Doc-Wahala in reply to The Friendly Grizzly. | October 12, 2021 at 11:20 am

    First focus on the trial. All else is pointless if he is convicted.

    He’ll be fine. I’d hire him. So would lots of other people.
    Hell, every gun range in America would like to hire him for “training to shoot accurately under pressure”.


 
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 7
Dathurtz | October 12, 2021 at 9:49 am

It terrifies me that something can plainly be legal according to the statute but a person can still be charged for it and it can be seriously considered.


     
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     9
    Paul in reply to Dathurtz. | October 12, 2021 at 10:57 am

    Progressives hear “Show me the man and I’ll show you the crime” and they get a little chubby.


     
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     6
    Arminius in reply to Dathurtz. | October 12, 2021 at 11:02 am

    Welcome to the world of the 1/6 political prisoners. Many if not most are charged with misdemeanors such as “illegal parading” (never knew there was such a crime) or simple trespass. Yet the feds included photos of Capitol Hill Police holding the doors open, accidentally no doubt, for the people so charged.

    You can’t support a trespass charge if the individual believed he had permission to be on the property. If the police responsible for the security of the building are holding the doors open for you, then you have permission to enter.

    Yet they’re still charged.

    And don’t tell me that describing them as political prisoners is too hyperbolic. Planned Parenthood/NARAL protesters have shut down Congress and even the SCOTUS far more violently on several occasions, such as during the Kavanaugh hearings and when SCOTUS was considering state abortion restrictions. They paid a $50 fine and were released. While Trump supporters are denied bail and held indefinitely.

    Hmm. What possibly might be the difference between the treatment of protesters who are in full alignment with a leftist cause celebre and Trump supporters. Such a mystery.


       
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       5
      Arminius in reply to Arminius. | October 12, 2021 at 11:05 am

      The full sentence should have read the feds accidentally provided security cam photos exonerating the people they are prosecuting in the documents they had to turn over to defense attorneys.


       
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       1
      Ironman in reply to Arminius. | October 12, 2021 at 12:34 pm

      A lot of Democrats view the 1/6 defendants as getting preferential treatment, and the government is actually undercharging them with “illegal parading” and “trespassing”. If you ask those Democrats the defendants should be getting charged with treason, sedition, etc. and deserve the death penalty.


         
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        MattMusson in reply to Ironman. | October 12, 2021 at 2:11 pm

        How about when MAGA takes the House and Senate, we get a special prosecutor to examine these political trials for criminal wrongdoing by the prosecutors?


           
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          Subotai Bahadur in reply to MattMusson. | October 12, 2021 at 5:18 pm

          If MAGA retakes the government, there is a lot of payback owed. The GOP will try to claim that only the Democrats are allowed to abuse people for political reasons, but if they are not paid back they will definitely abuse again if they get any chance. There is no easy, congenial way out of where we are.

          Subotai Bahadur


           
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          henrybowman in reply to MattMusson. | October 13, 2021 at 3:13 am

          I think the magic lies in the phrase “MAGA takes the House and Senate,” not “Republicans take.”


         
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         3
        Arminius in reply to Ironman. | October 12, 2021 at 2:13 pm

        Yes, but those Dems pretty much make my point about how the 1/6 defendants are in fact political prisoners. Terry McAuliffe said GWB was “selected, not elected” and believed Gore really won back in 2000. He remains a Democrat in good standing. Stacey “Tank” Abrams still insists she’s the real governor of Georgia and the GOP stole the election through voter suppression. Hillary Clinton spent four years, and even wrote a book, about how Trump stole the election with Putin’s help.

        But it’s beyond the pale for Trump to question the the results of 2020.

        Hypocrisy, thy name is DNC.


       
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      Dathurtz in reply to Arminius. | October 12, 2021 at 6:40 pm

      I am about 1/4 through Gulag Archipelago. Chilling stuff.


     
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    henrybowman in reply to Dathurtz. | October 13, 2021 at 3:11 am

    “It terrifies me that something can plainly be legal according to the statute but a person can still be charged for it and it can be seriously considered.”

    And if that terrifies you, how would you feel about being found not guilty of a given charge, but then having the penalty for that charge added to your sentence regardless? I used to think that “the rules” prevented that sort of thing from happening in America, but I was wrong. It’s perfectly routine.


 
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Capsaicin_Addict | October 12, 2021 at 10:34 am

Judge Schroeder’s consternation at the law seems well-founded; it doesn’t look to be well written. But that’s a problem for the legislature to deal with.


     
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     5
    CommoChief in reply to Capsaicin_Addict. | October 12, 2021 at 11:20 am

    IMO, the CT should always defer to the plain language of a statute for several reasons.
    1. The legislature has staffers to draft and analyze the proposed legislation.
    2. Many members of the legislature are themselves Attorneys and/or are experienced long tenured members who have the experience/knowledge to view the language in context.
    3. The legislature role is to make the laws that their constituents demand.
    4. The constituents have to be able to read the plain statutory language, interpret it and be guided by it. When they can’t the statute may face constitutional issues.
    5. The legislative process is messy. Trade offs occur. Sometimes the legislature will pass a statute that purports to do something; prohibit rifles to those under 18, while deliberately creating a less publicized donut hole exemption in order to secure the votes for passage.

    IMO this charge should be dropped.


     
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     1
    henrybowman in reply to Capsaicin_Addict. | October 13, 2021 at 3:15 am

    He’s going to end up changing all of this to a “bag limit” charge: Rittenhouse WAS hunting, but he ended up taking two Antifa on one tag.


 
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Christopher B | October 12, 2021 at 10:54 am

Maybe I’m missing some point but it sure seems that a logical reason for the legislature to link 948.60 to both 29.304 and 29.593 is that they were aware of the ‘donut hole’ 29.304 created if the person charged under 948.60 was 17 years old, and expected the inclusion of 29.593 to create an ‘exception to the exception’ that would immunize 17 year old hunters from prosecution under 948.60.

Unrelated editing note .. towards the end of the section you have several links labeled 29.503 that should probably be 29.593


 
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 1
DaveGinOly | October 12, 2021 at 11:02 am

I’ve long been under the impression that the titles of statutes were not actually part of the statute; that statutes are provided with titles for ease of reference (or, as it seems sometimes, to mislead the public about the nature of the statute). For instance, I distinctly remember an example of this in the form of a federal statute in which “hospitalization insurance” was mentioned, which, upon reading, proved to have nothing to do with same. (I’m sure some of the readers here can think of “misleading” examples.)


     
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    DaveGinOly in reply to DaveGinOly. | October 12, 2021 at 12:39 pm

    Although I stand by what I said about the titles of statutes, I see that I missed the fact that “a person under 18 years of age” is in the statute itself. Please see my reconsideration of this fact in a correction to my earlier post (above).


 
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 3
texansamurai | October 12, 2021 at 11:08 am

perhaps am misunderstanding the interpretation of “offense under….” but if the statute makes reference to possession of a particular type of weapon (barrel length) the determinant for an offense under same, and the weapon rittenhouse possessed does not fall within those perameters (barrel length, etc), then how could he possibly have committed an offense under same? what if he’d been carrying a shillelagh?

come on


     
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     2
    lichau in reply to texansamurai. | October 12, 2021 at 11:25 am

    This charge is a “Lavrenty Beria charge”


     
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     1
    Milhouse in reply to texansamurai. | October 12, 2021 at 5:17 pm

    You haven’t misunderstood the language, you’ve misunderstood the charge.

    Indeed he can’t have committed an offense under that section, and nobody is claiming he did. The prosecution agrees that he was not in violation of § 941.28, and also mostly concedes that he was in compliance with § 29.304;; its allegation is that he was not in compliance with § 29.593.


       
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      CommoChief in reply to Milhouse. | October 12, 2021 at 7:29 pm

      Well 29.593 is a hunter education/safety statue; anyone applying for a hunting license must show proof of completion of x course which is pretty standard across jurisdictions for hunting but has zero to do with the case at hand. He wasn’t hunting without a licence so it doesn’t apply.

      In essence the prosecutor seems to be arguing that the lack of a hunting license precludes possession of a firearm for other purposes. Points awarded for novelty but no. They should drop this BS misdemeanor, unless the State is prepared to argue that a MSR is a valid hunting weapon and that hunting on Kenosha streets would be lawful. The first the d/prog vehemently deny and the second is right out of crazy town.


         
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        Milhouse in reply to CommoChief. | October 13, 2021 at 9:49 am

        Not quite. The prosecution’s argument is that the underlying statute bans anyone under 18 from being armed, and § 29.593 is an exception to that ban. If you’re in compliance with that section, because you’ve completed the safety course and got your hunting certificate, then you’re exempted from the general ban. Since Mr Rittenhouse was not hunting at all, he was not in compliance with the rules for hunting, and therefore cant’ claim the exemption. Thus the original ban applies.

        The defense argument is that while he’s not literally in compliance he’s also not out of compliance, and that’s what it really means. If you’re not violating it then you must be in compliance with it, and thus entitled to the exemption.


           
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          CommoChief in reply to Milhouse. | October 13, 2021 at 11:47 am

          Disagree. The statute doesn’t ban under 18 possession/use of rifles as Branca articulated at length. It does ban SBR which aren’t at issue and it does ban 16 and under which isn’t at issue.

          The remaining statute, 29.593, is related to proof of completion of a hunter education/safety course for issue of a hunting license which would only be an issue if Rittenhouse was engaged in hunting. He wasn’t.

          The ADA is attempting to apply the hunter education/safety requirements of the statute to the general possession/use of a rifle outside the context of hunting as a way to reinterpret the overall statute to deny 17 year olds possession/use of rifles.

          The legislature could have chosen to do so. They didn’t, instead they created a hole in the statute, 948.60, by reference to other statutes, that makes it inapplicable to the circumstances.

          The legislature has staff, they have attorneys in the legislature, they have veteran legislators who all knew exactly what they did when crafting the statute this way. The charge, IMO, is not sustainable unless the CT begins attempting to divine how the sausage was made and imposes the preference of a Trial CT in place of the legislature.


           
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          Milhouse in reply to Milhouse. | October 13, 2021 at 6:43 pm

          Disagree. The statute doesn’t ban under 18 possession/use of rifles as Branca articulated at length. It does ban SBR which aren’t at issue and it does ban 16 and under which isn’t at issue.

          That is just outright wrong. The statute explicitly does ban under-18 possession of any deadly weapon, or “going armed” with same. Mr Branca did not suggest otherwise in any way at all. If you got that impression you did not understand the article and should read it again.

          The remaining statute, 29.593, is related to proof of completion of a hunter education/safety course for issue of a hunting license which would only be an issue if Rittenhouse was engaged in hunting. He wasn’t.

          Again, you have completely misunderstood the entire issue. Rittenhouse is not charged with violating § 229.593. The only reason it is relevant here is because the statute under which he’s being charged, which explicitly bans anyone under 18 from possessing any deadly weapon, makes an exception for anyone “in compliance” with that section.

          So the only relevant question is what it means to be “in compliance”. The prosecution’s argument is literally correct; If you have no valid driver’s license because you don’t drive, you not literally “in compliance” with the law requiring you to have one before you can drive. Rather that law just doesn’t apply. The defense argument is that “in compliance” should be read as “not out of compliance”; if you don’t drive then you are automatically “in compliance” with the law forbidding unlicensed driving.


           
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          CommoChief in reply to Milhouse. | October 13, 2021 at 7:50 pm

          In order for him to be guilty of 948.60 he must also be in violation of
          948.23 which pertains to a SBR, so N/A
          29.304 which applies to those 16 years old and younger so also N/A
          Leaving the hunter education/safety statue requirement of 29.593. Which IMO isn’t applicable because Rittenhouse wasn’t engaged in hunting activities.

          Please correct me where I have this wrong.


         
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        tbonesays in reply to CommoChief. | October 15, 2021 at 4:24 am

        The key is that a minor carrying rife or shotgun is usually not a criminal under this statute The walls go up with

        “(3)(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 in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593 …”

        Say can we do [b]html[/b] on this site?

        If your deadly weapon is a rifle/shotgun then the statute only applies under under two conditions,

        1= a sawed off [No]
        2= illegal hunting [very unlikely]

Here’s what I need to know. Was ” bicep blown off ” guy charged by the DA with illegal concealed carry and brandishing of a pistol? Was this convicted felon a legal gun owner? Was it legal for him to be carrying a concealed pistol at a riot? If not charged, why not? ??


     
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    lichau in reply to RobM. | October 12, 2021 at 4:17 pm

    Nothing to see here, move along.


     
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    randian in reply to RobM. | October 12, 2021 at 11:09 pm

    No, Grosskreutz hasn’t been charged, for the obvious reason that if they did charge him with aggravated assault for pointing a pistol at Kyle then Kyle has a slam-dunk self-defense case on the charge of attempted murder of Grosskreutz. So no, Grosskreutz wasn’t legally carrying that firearm and did commit a felony upon Rittenhouse, but he gets lucky and skates because of the politics of prosecuting Rittenhouse.


       
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      henrybowman in reply to randian. | October 13, 2021 at 3:22 am

      Suppose the defense would like to bring up, in evidence, that Contestant #3 was an illegally armed felon, this is public knowledge and on video, and he hasn’t been charged, presumably in order to hamper his client’s defense. I suppose there is some evidentiary rule where the Nazguls gets to cover their asses by screaming, “you can’t tell the jury about that!”


     
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    henrybowman in reply to RobM. | October 13, 2021 at 3:18 am

    Not only was he not a legal gun owners, but he had already been convicted of illegal possession before this.


     
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    AnAdultInDiapers in reply to RobM. | October 13, 2021 at 5:16 pm

    Was he brandishing an actual firearm?

    It’s possible he was brandishing a non-functioning item that looks like a firearm, in which case he may not be breaking the law.

    Rittenhouse would of course have been reasonably expected to believe it was a functioning firearm and that his personal safety was thus at risk, so the truth of the item the idiot was brandishing isn’t relevant to whether it was right to shoot him.

    (It was)


 
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Tom Orrow | October 12, 2021 at 2:31 pm

Thank you, Mr. Branca, for your detailed analysis of this important case. Unfortunately, some of the links to 29.503 were mislabeled as 20.503 or 25.593, adding to the difficulty of understanding these complex issues.


 
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ObeliskToucher | October 12, 2021 at 4:38 pm

Hypothetical: Suppose the order of events are reversed and Rittenhouse had (somehow) gained control of the third assailant’s pistol. Would he be subject to the misdemeanor?

The simple fact is that the prosecution *must* push as hard as they can to get the gun charge to stick. They have invested too much in the meme of “punk kid illegally carrying a rifle to shoot people at a riot’ and cannot back off now. If the charges are thrown out, as I suspect they will be, they have dug themselves into a hole where Kyle was *legally* carrying with the support of his group to defend property from rioters who had burned and planned on burning, and did burn more property that evening.

The prosecution’s strategy is to overwhelm the jurors with a lot of “bad” and “evil” that he perpetrated. They are banking on the Chauvin Jury who not even consider the statue and just come back “guilty” on all counts after about 30 minutes.

That is the strategy and that will be the outcome.

Good Lawyering only works in a nation of laws. That time is past.


 
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chaswjd | October 12, 2021 at 9:50 pm

The statute makes perfect sense. The exception to the statute only applies to rifles. Accordingly, the possession of a pistol by a minor is illegal. Given the importance of hunting to large parts of the state, an exception for hunting seems reasonable.


     
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    henrybowman in reply to chaswjd. | October 13, 2021 at 3:33 am

    I disagree. The statute is a hodgepodge of shoddy craftsmanship and disparate inattention, like many state efforts — such as the Massachusetts law of around 2000 which literally forbade a handgun model to be sold in the state unless it had FAILED a safety drop test.
    Ignorance of the law is no excuse if you are a citizen, unless you are a police officer or a legislator, in which case you have immunity from your ignorance.
    And the laws have become, as Madison feared, “so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”
    This is why our lazy legislators have developed a penchant for passing new laws that say “notwithstanding any other provision of law” — it’s shorthand for, “I didn’t do the homework as to what other laws I would have had to rewrite, because it was just too hard.” But, as this very trial shows, WE’RE expected to do that very same homework before we leave home every day… and not just on our own state, county, and town, but on any other place we’re likely to visit that day.
    And what’s worse, is that this construct is like the mythical “reverse goto” in programming… you may think you understand a law, but some other law in a place you never looked nullified it with “notswithstanding any other provision of law” and now they gotcha.


 
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panamapat | October 13, 2021 at 8:32 am

This has always been a clear case of self-defense,period, end of discussion. The prosecutors know this, the judge knows this. Rittenhouse was in bodily danger of being beaten to death by his assaultors. He had no choice but to defend himself from his attackers. The ONLY CRIMINALS in that courtroom are the prosecutors who have brought a knowingly false and malicious case and the judge who allowed them to bring the case.

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