Most Read
Image 01 Image 02 Image 03

Possible Rittenhouse Trial Prosecution “Hail Mary”: Kyle Provoked the Attacks

Possible Rittenhouse Trial Prosecution “Hail Mary”: Kyle Provoked the Attacks

Based on the evidence thus far, the state should not be allowed to argue “provocation,” but that doesn’t mean it won’t try as the rest of its case collapses.

Welcome to today’s Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.

After four days of testimony by State witnesses, the prosecution in the trial of Kyle Rittenhouse for intentional murder, reckless murder, attempted intentional murder and other felony charges has failed to show the court any substantive evidence that effectively attacks any of the four required elements for Kyle’s legal justification of self-defense.

This in a legal context where the State not only bears the burden to disprove self-defense generally, but to disprove self-defense beyond any reasonable doubt.

As a quick refresher, the four required elements for Kyle’s claim of self-defense are, any one of which could be a target of attack by the prosecution—but hasn’t been:

Innocence:  The State could attempt to prove beyond a reasonable doubt that Kyle was the initial physical aggressor with respect to either Joseph Rosenbaum, Anthony Huber, or Gaige Grosskreutz.  The State has so far introduced zero evidence of this.

Imminence: The State could attempt to prove beyond a reasonable doubt that the threat against which Kyle was defending himself was neither actually in progress or immediately about to occur when he used force against Rosenbaum, Huber, or Grosskreutz.  The State has so far introduced zero evidence of this.

Proportionality:  The State could attempt to prove beyond a reasonable doubt that Kyle did not reasonably perceive a deadly force threat—one capable of readily causing death or serious bodily injury—when he used deadly force upon Rosenbaum, Huber, or Grosskreutz.  Other than ADA Binger’s ridiculous blanket claim that an armed man could never be justified in shooting an unarmed man—a claim Judge Schroeder immediately noted was legal nonsense—the State has so far introduced zero evidence of this.

Reasonableness:  The State could attempt to prove beyond a reasonable doubt that Kyle’s perceptions of the attacks upon him were unreasonable, in any of the respects we’ve just discussed.  The State has so far introduced zero evidence of this.

(There is a fifth element sometimes required in self-defense, the element of Avoidance, which requires that a defender take advantage of a safe avenue of retreat, if possible, before using deadly force in self-defense. Wisconsin, however, is a stand-your-ground state and does not impose a duty to retreat in cases of otherwise lawful self-defense. Indeed, only 11 of the 50 states impose such a legal duty of retreat in cases of otherwise lawful self-defense.)

The Wisconsin self-defense statute doesn’t explicitly use this “elements of self-defense” framework that I’ve just described, but what counts is the legal concepts themselves, and each of these elements can readily be identified by the discerning reader within the relevant portion of that self-defense statute (I’ve added the elements in brackets to assist in this):

939.48. Self-defense and defense of others.

(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating [Imminence] what the person reasonably [Reasonableness] believes to be an unlawful interference [Innocence] with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes [Reasonableness] is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably [Reasonableness] believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself [Proportionality].

Importantly, the State prosecutors in the Rittenhouse would not have to disprove every one of these elements of self-defense in order to defeat the legal defense.  These elements are cumulative, so if the state can disprove any one of these elements beyond a reasonable doubt, Kyle’s legal justification of self-defense collapses entirely.

I am going to go ahead and make the presumption, however, that the State’s failure to present any evidence inconsistent with any of these four elements—much less any evidence that disproves any of them beyond a reasonable doubt—means that the State simply has no such evidence, period.

So if the State cannot effectively attack one of the core four elements of self-defense under Wisconsin law, and therefore have no prospect to a reasonable degree of legal certainty of disproving beyond a reasonable doubt Kyle’s claim of self-defense, and given that self-defense is a perfect defense against all the homicide charges against Kyle and demands an acquittal if not disproved beyond a reasonable doubt, then how is the State planning to obtain a conviction of Kyle on any of those homicide charges?

Well, it turns out that there’s a theoretical back-door strategy to attack Kyle’s claim of self-defense, and that’s to attempt to prove beyond a reasonable doubt that Kyle provoked the attacks upon him, and lost the legal justification of self-defense as a result.

Provocation Under Wisconsin Self-Defense Law

It’s important to understand that the legal doctrine of provocation differs from the legal doctrine of “initial aggressor,” which we described before as how one loses the required self-defense element of Innocence.

The initial aggressor is the first person to use or threaten to use unlawful imminent force. He’s the person who, for example, throws the first punch.  That conduct loses him Innocence, and loses him self-defense.

The provoker is not the initial aggressor, is not the person who is the first to use or threaten to use unlawful imminent force. To the contrary, the provoker is someone who goads the other guy into being the initial aggressor.

There are variations in how this might be done, and we’ll explore those in a moment, but in the most basic sense he’s the person whose conduct would likely lead a reasonable person to lose their temper and throw a punch.

The use of racial epithets against a black person or insulting a man’s wife to his face and in her presence could reasonably be expected to elicit a threat or even use of force in response.  A person who engages in such conduct and gets threatened with a punch in response ought not to able to strike back in the fight he catalyzed and then claim self-defense to justify that strike.

(Note that this provocation does not necessarily justify the person goaded into throwing the first punch—he’s still the initial aggressor, has lost Innocence, and has lost self-defense.)

Under Wisconsin law, there are two distinct forms of provocation that impact a claim of self-defense.  The first is a “simple provoker,” and the second is a “provoker with intent.”  The distinction is important, and has profound consequences for self-defense.

These doctrines of provocation tend to get somewhat complicated, with lots of conditions, and exceptions to those conditions, and exceptions to exceptions, so it’s worth stepping through in detail.

All of the relevant WI provocation law is found in the second major paragraph of the WI self-defense statute, §939.48(2). I’ll cite the relevant portions of that paragraph as we step through the statutory language.

Simple Provoker Under WI Law

A “simple provoker” is of the type I’ve just described—he engaged in some conduct which would be reasonably likely to result in a violent response from the person against whom that conduct was directed or who was otherwise the subject of that conduct.   The concept of the “simple provoker” is covered in §939.48(2)(a).

Importantly, under Wisconsin law “simple provocation” requires that the  provocative conduct in question have been unlawful.  Lawful conduct cannot be the basis for someone qualifying as a simple provoker.  This matters, because the other form of provocation, the “provoker with intent” can be triggered by either unlawful or lawful conduct.

Here’s the relevant statutory language:

(2)(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 …

So, someone who has engaged in some unlawful conduct that was reasonably likely to result in a violent response has lost the privilege of self-defense.  Easy enough, right?

Except that we are then immediately presented with an exception to this loss of self-defense.  If your provocation triggers a deadly force response from the other, you regain your privilege to use force in self-defense against that deadly attack.  In other words, while you may have earned a punch in response to insulting someone else’s wife, you didn’t earn a bullet to the head.

Here’s that relevant language:

(2)(a) … 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, …

OK, so if the person you provoked tries to kill or maim you, you’ve regained the privilege to defend yourself against that attack.  Again, simple enough right?

Not so quick.  Because whereas you would normally not have any duty to retreat before acting in otherwise lawful self-defense—Wisconsin is, again, among the roughly 80% of states that are Stand-Your-Ground states—before you can use deadly force to defend yourself against the deadly force attack that you provoked, you must first take advantage of any safe avenue of retreat.

In other words, because it was your unlawful provocation that triggered the deadly force attack upon you, you’ve re-acquired that duty to retreat, that element of Avoidance, which would not otherwise have been a condition of your act of self-defense.

Here’s that relevant language:

(2)(a) … 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.

The WI self-defense statute touches again upon this notion of the provoker retreating in order to  regain the privilege of self-defense in the next sub-paragraph of the WI provocation language, although this applies in the context of both regaining non-deadly and deadly force self-defense:

(2)(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.

The way a simple provoker regains self-defense is by withdrawing from the fight, and effectively communicating that withdrawal to the other party.  A classic way to do this is by cessation of your fighting, backing up with your hands raised in a peaceful gesture, and telling the other party “Hey, I don’t want to fight anymore.”

In practice, “effective communication” is often more constructive and implied than it is explicitly stated.  Determined flight from the scene, for example, adequately informs the other party that you’re no longer fighting and no longer wish to.

So Wisconsin law on the simple provoker provides, in a nutshell, that unlawful conduct that provokes a violent response loses you self-defense, but if the violent response turns out to be deadly in nature then you’ve regained self-defense, but before you can defend yourself deadly defensive you must first retreat if safely possible, or alternatively withdraw and communicate your desire to stop fighting.

Now let’s discuss the second flavor of provocation in the context of self-defense under Wisconsin law, the provoker with intent.

Provocation with Intent

The provoker with intent differs from the simple provoker in one important aspect—whereas the simple provoker may have ended up starting a fight, the starting of a fight was never his intent.

The provoker with intent, however, is engaged in his provocative activity specifically to trigger a fight—and with the intent of having the other person’s provoked initial use of force provide the provoker with intent with an apparent legal justification for using deadly force upon the person provoked. In other words, he’s trying to fake a claim of self-defense.

A classic illustration of this comes from the great Western movie, Shane.  In one scene a professional gun-for-hire, played wonderfully by Jack Palance, stands on a storefront porch and goads a local farmer into going for his gun. The farmer pulls his own gun but gets it only partially pointed before finding the gun-for-hire’s muzzle squarely on him.  The farmer stops his own draw, there’s a lengthy pause, and then the gun-for-hire shoots the farmer dead.

In that scene, the gun-for-hire has goaded the farmer into being the first to threaten or use force, to then have an apparent self-defense justification for killing the farmer.  That is not a lawful use of force, not in Wisconsin nor in any other state.

Importantly, the provoker with intent is invariably treated more harshly by the law than is the simple provoker.  Whereas a simple provoker might regain the privilege of self-defense, depending on the other’s response and the simple provoker’s willingness to attempt safe retreat, as already discussed, the provoker with intent cannot regain self-defense.

The provoker with intent owns that fight, period.

Also important for our purposes is that while simple provocation could be triggered only if the provocative conduct was unlawful, provocation with intent can be triggered by conduct that is either unlawful or also by conduct that is lawful.

Here’s the relevant statutory language from §939.48, and you’ll note that lack of any provision for regaining self-defense:

(3)(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.

Provocation as A Point of Attack on Kyle’s Self-Defense Claim

So, under Wisconsin law provocation exists as a point of attack on a claim of self-defense that can be thought of as independent of the core four elements of Innocence, Imminence, Proportionality, and Reasonableness.

Given the apparent complete absence of any substantive evidence contrary to any of those four elements in the first four days of the State’s case in chief, then, it seems reasonable to expect that the State will pursue the only avenue of legal attack left to them—that of provocation.

Specifically, that the State will argue that the evidence proves beyond a reasonable doubt that Kyle Rittenhouse provoked—either via simple provocation or provocation with intent—the attacks by by Rosenbaum, Huber, and Grosskreutz, and therefore Kyle fails to qualify for self-defense for his use of force against their attacks.

Indeed, the State has made that narrative explicit, at least with respect to Anthony Huber.  Late this week ADA Kraus told the court, outside the hearing of the jury:

Our theory, as we’ve laid out, is that these people were going to stop an active shooter, that they were provoked by Kyle Rittenhouse by his actions of [shooting] Mr. Rosenbaum. That his actions there were such provocation as they believe he was an active shooter, [that] he was a danger to all [of] them. The State, frankly, thinks of Mr. Huber is a hero, and that we can present evidence of conduct to rebut this claim that he is aggressively pursuing Kyle Rittenhouse with no  basis, which is exactly what they’re saying.

Now, ADA Kraus is speaking here primarily with respect to Anthony Huber, who struck the fallen Kyle twice around the head with his skateboard and then fought for control of Kyle’s rifle, and was fatally shot by Kyle in self-defense, but he’s also generally referring to “jump kick man,” Gaige Grosskreutz, and anyone else attempting to use force against Kyle.

Kyle, the State is arguing somewhat ambiguously, has no privilege of self-defense as a legal defense to his two missed shots at “jump kick man” (charged as reckless endangerment), his fatal shooting of Huber (charged as intentional homicide), his maiming gunshot wound he inflicted on Grosskreutz (charged as attempted intentional homicide), because Kyle’s early conduct of shooting Joseph Rosenbaum qualifies as some form of provocation, either simple provocation or provocation with intent, Kraus didn’t specify, that triggered these others to use or threaten to use force against Kyle.

It’s also worth noting that a provocation-based argument could also be made in the context of the initial shooting of Rosenbaum, that Rosenbaum’s attack on Kyle was provoked by Kyle in a legal sense, but then we need some provocative conduct that precedes the shooting of Rosenbaum himself, so we’ll address that separately.

Unlawful Gun Possession as Generalized Provocation

Note: I’ve re-written this “gun possession as general provocation” section, and made edits elsewhere in the post, to re-organize the content, clear away several ambiguities, and correct several errors that do not change the outcome of the analysis.–AFB [11/8/21]

Before we get to the “shooting of Rosenbaum provocative conduct with respect to later shootings in the street,” it’s also worth noting another provocation argument not touched upon in this particular instance by ADA Kraus, but which received a great deal of emphasis in the opening statement for the State by ADA Binger.  And that is the idea that none of this would have happened but for Kyle being in open possession of the rifle.

In other words, that Kyle’s open possession of the rifle was conduct that provoked all the attacks upon him, and therefore that open possession alone ought to strip him of any privilege of self-defense with respect to any of the subsequent attacks made on him.

Note that one of the criminal charges against Kyle is unlawful possession of a dangerous weapon by someone under the age of 18.  As a stand-alone charge, this is at worst a misdemeanor punishable by up to 9 months in jail and an affordable fine.  So why even bother, when the State has already charged Kyle with felony offenses sufficient, upon conviction, to put him in a prison for the rest of life, plus 5 years for having used a gun?

Well, the State has told us—they intend to argue that the open possession of the rifle ought to be deemed provocative conduct, and lose Kyle self-defense as a result.

Of course, as we just discussed at length, there’s provocation of different types.

Unlawful Gun Possession as Simple Provocation

Let’s first consider simple provocation, which requires an unlawful act reasonably likely to provoke a physical response.  The State has several challenges here.

Was the Gun Possession Unlawful in the First Place?

First, the simple provocation can be based only on unlawful conduct.  So the State must be able to follow through on their unlawful weapons possession charge against Kyle if an argument of simple provocation based on the gun possession is going to have any legs at all.  That, presumably, is the core reason they are pursuing the weapons charge, only a misdemeanor, in the first place—because it theoretically opens the door to a simple provocation attack on Kyle’s claim of self-defense.

A key hurdle here, of course, is that my own analysis of the relevant—admittedly confusing and ambiguous—Wisconsin gun laws simply don’t apply to Kyle as a matter of the demonstrable facts and normal statutory interpretation—that he’s literally exempted from the conditions imposed by those statutes.  (You can find my detailed analysis on this point here:  “Rittenhouse: Gun Possession, Even if Unlawful, Irrelevant to Self-Defense Claim”.)

The defense sought to make this argument before the start of the trial, and get the gun charge dismissed before the jury was even selected.  Frankly, I didn’t find their argument on this point to be quite as perfect as it ought to have been, although the general sentiment of inapplicability was certainly hit on repeatedly.

The State’s counter-argument, however, struck me as ridiculously weak—that Kyle ought to be subject to this criminal statute, despite the plain language of the statute appearing to exempt him as a matter of demonstrable fact, because that’s the way the Wisconsin legislature would have wanted it.  We’re supposed to convict Kyle on this criminal charge, in other words, based upon our divining the inner mental desires of the legislature—that no longer even exists!—that passed these confusing and ambiguous statutes.

Now, there is such a thing as looking at legislative history to divine legislative intent, but the State brought in no such legislative history. The only part that did was the defense. So it seems that history does not favor the State’s argument.

Indeed, the defense also argued, and the Judge seemed favorably disposed to this line of argument, that if not even the lawyers and the judge in the courtroom could confidently discern how these statutes were supposed to be applied in these circumstances, that at least with respect to Kyle the statutes were unconstitutionally vague, and the weapons charge out to be dismissed on those grounds.

As of this writing, with the trial four days underway, I do not believe that Judge Schroeder has made a call as to whether he will dismiss the charge before jury deliberations or if he will instruct the jury on the weapons charge and let them (non-experts in the law!) attempt to figure them out on their own.

My own hope is the charge is dismissed, if only for vagueness reasons.  If so, then the state cannot argue to the jury that Kyle’s gun possession was unlawful, and that gun possession cannot be the basis for an argument of simple provocation, and therefore simple provocation would not be available as an attack on Kyle’s claim of self-defense on the basis of the purportedly unlawful gun possession.

There are two additional, huge, gaping weaknesses in this argument of purported unlawful carry of the gun as constituting simple provocation that strips Kyle of self-defense.

If Open Carry Obviously Confrontation, Why Only Kyle Attacked?

One of these is a weakness that has only been made more obvious by ADA Binger’s own questioning of the State’s own witnesses.

A line of questioning that Binger has hit on repeatedly is intended to suggest that Kyle’s use of force, and particularly deadly force upon others that night of August 25 in riot-torn Kenosha must have been unlawful, because nobody else that night, or in the preceding nights, had shot anybody.

Binger repeatedly asked his witnesses, Did you see anybody else shoot anybody? Did you see anybody else kill anybody?  No, no—and that’s supposed to create an inference that therefore Kyle also should not have shot and killed anybody.

The argument is laughable on its face, because (as the defense has pointed out in response), no one was in Kyle’s circumstances, either.  Naturally, if the circumstances differ, the lawful justification (or not) for a use of force also differs.

That line of questioning by Binger also substantively undermines any argument that Kyle’s open carry of the rifle could reasonably be perceived as conduct likely to provoke an attack on him—precisely because he was the single incident of an armed person being attacked, when the city was literally awash with armed people, many of whom were also open-carrying AR-style rifles.

Ryan Balch and Jason Lackowski were two of the State’s witnesses this week. Both were wandering in close proximity to Kyle for much of the night, and both were armed with AR-style rifles throughout the night.  Many others were also similarly openly carrying AR-rifles.  Not one of them was attacked.

If the open carry of an AR-rifle was so obviously conduct that was likely to provoke an attack, Kyle Rittenhouse would not have been the only person to have been attacked that night—not when there were dozens of others similarly open-carrying AR-rifles.

Kyle Regained Self-Defense by Withdrawal & Communication

Another weakness in this argument of Kyle as simple provoker, based on his purportedly unlawful open carry of the gun, is that a simple provoker may regain self-defense by withdrawal and communication.  And it’s hard to think of a clearer example of withdrawal and communication than Kyle fleeing at speed from a murderously pursuing Rosenbaum, while Kyle is shouting “friendly, friendly, friendly” (according to the STATE’s own witnesses).

So, even if all the conditions for simple provocation were met, using the purportedly unlawful gun possession as the required unlawful conduct, Kyle would nevertheless still have regained innocence by his withdrawal and communication.

Open Gun Carry As Provocation with Intent

Now let’s consider the possibility that merely carrying the gun openly, even if doing so was lawful, might qualify as provocation with intent.  That is, that Kyle was openly carrying his AR lawfully, but with the intent of provoking another to attack him and then use their attack as an excuse to inflict deadly force upon them.

Now the State no longer need prove that the gun possession was unlawful, but they are left with a different problem.  Now they need to show actual evidence of that specific intent to induce an attack so that Kyle could claim an excuse to use deadly force against the other person.

The difficulty here is that, in the vast wealth of video of Kyle on that night, there is no evidence—zero—that shows him being in any way confrontational.  Indeed, at the slightest suggestion of possible physical conflict he consistently simply turns and walks or runs away.  Someone who intends to provoke a physical fight for the purpose of then having an excuse to use deadly force on others doesn’t consistently, without exception, avoid every opportunity to carry out that purported intent.

I suppose in theory it’s possible for the State to argue that in the brief moment that Kyle Rittenhouse passed by Rosenbaum hiding among the four cars on the corner of the Car Source #3 lot, where Kyle had run with an extinguisher to put out a reported fire, and which was the very moment at which Rosenbaum began his murderous pursuit of Kyle, that in that moment Kyle was aware Rosenbaum was hiding there and said something provocative to him, intending to then have the excuse to use deadly force.

But where would that evidence of that intent come from?  The only people sufficiently close to have heard anything like that would have been Joshua Ziminski (who fired the first shot in the pursuit of Kyle by Rosenbaum, into the air) or his wife Kelly Ziminski.

Might the State have them testify that Kyle said something to Rosenbaum that could be characterized as provocation with intent?  I would think the State would be hesitant to put either of them on the witness stand, and that if the State did so I expect the defense would have a field-day on cross-examination.

Certainly, Joshua has his own recent criminal record, including arson charges for fires set in Kenosha itself, and Kelly has been charged with several misdemeanors for her own conduct during the riots.

Even if the Ziminskis were called to testify, however, and were willing to claim that Kyle made some kind of provocative statement, there is another big problem with this line of attack on Kyle’s claim of self-defense—whatever Kyle might have said in the moment he passed Rosenbaum’s hiding place, he did not then stay to exercise an excuse to use deadly force against Rosenbaum.

Instead, Kyle immediately fled at speed, screaming “friendly, friendly, friendly,” even as he heard Joshua Ziminski’s gunshot behind him and turned to see a murderously charging Rosenbaum screaming “F-you!” and diving for control of Kyle’s gun.

None of that adds up to provocation with intent to me—but given how little the State has to work with, it’s no wonder they’re grasping at such straws.

And that, really, deals with all the provocation arguments that might be raised by the State  based on Kyle’s open possession of the gun.

Given the lack of evidence undermining any of the core four elements of Kyle’s self-defense claim, and the weakness of any provocation line of attack on self-defense with respect to Rosenbaum, I still don’t see any way, to any degree of legal certainty, that the State will be able to disprove beyond a reasonable doubt Kyle’s claim of self-defense for the charge of reckless homicide in the shooting death of Joseph Rosenbaum

The Active Shooter Provocation Argument

So, if there seems no viable provocation attack on Kyle’s claim of self-defense based on the open carry of the gun, and therefore with respect to the shooting of Joseph Rosenbaum, what about Kyle’s uses of force against “jump kick man,” Anthony Huber, and Gaige Grosskreutz?

The argument by the State here is that these men perceived Kyle’s shooting of Rosenbaum to have been the unlawful murderous conduct of an “active shooter.”  This argument needs to be explored in several contexts.

Shooting of Rosenbaum as Simple Provocation

First, is there anything about such a perception of Kyle as an active shooter that would open the door to a simple provocation attack on his claims of self-defense in the street.  That is, that his shooting of Rosenbaum was unlawful conduct likely to provoke others to attack him.

Shooting of Rosenbaum as Provocation with Intent

Second, is there anything about such a perception of Kyle as an active shooter that would open the door to a provocation with intent attack on his claim of self-defense. That is, that his shooting of Rosenbaum was specifically intended to provide Kyle with an excuse to use force on others, even if we concede that shooting was lawful?

Perception of Active Shooter is Irrational, Speculative, Imaginative

Third, there appears to be no evidence in the record that would support a reasonable perception by anybody, including “jump kick man,” Huber, and Grosskreutz that Kyle Rittenhouse was an active shooter.  That means that any such belief that they might have held (and there’s actually no evidence on that belief, being held either) could only have been irrational and speculative—and you don’t lose your right to self-defense because your attackers have an irrational and speculative belief that they are attacking you out of good motives.

Shooting of Rosenbaum as Simple Provocation Re: “Active Shooter”

So, let’s first consider whether there anything a perception of Kyle as an active shooter, based on his shooting of Rosenbaum, that would open the door to a simple provocation attack on his claim of self-defense.  That is, that Kyle’s shooting of Rosenbaum was unlawful conduct likely to provoke others to attack him in the belief they were stopping an active shooter.

Simple provocation is based on unlawful conduct. If the shooting of Rosenbaum was lawful self-defense, that takes using that event as simple provocation immediately off the table.

As we’ve already discussed at length, there seems no attack on the core four elements of self-defense, nor any attack applying doctrines of provocation, that has any prospect to any degree of legal certainty of disproving beyond a reasonable doubt Kyle’s claim of self-defense with respect to Rosenbaum. Therefore there seems little likelihood that Kyle’s shooting of Rosenbaum could be found unlawful.

So, using the shooting of Rosenbaum as the basis for a simple provocation attack on Kyle’s claim of self-defense for the street shootings would seem a non-starter.

Shooting of Rosenbaum as Provocation with Intent Re: “Active Shooter.”

Second, is there anything about such a perception of Kyle as an active shooter that would open the door to a provocation with intent attack on his claim of self-defense. That is, that his shooting of Rosenbaum was specifically intended to provide Kyle with excuse to use force on others?

The difficulty here is the same difficulty we discussed above when addressing Kyle’s open carrying of the gun as possible provocation with intent—there’s simply no evidence at all of any intent on the part of Kyle to provoke a fight in order to have an excuse to use deadly force on the person provoked. None.  Again, perhaps Joshua or Kelly Ziminski might provide testimony consistent with such a claim, but that seems unlikely.

Irrational & Speculative Perception of Kyle as Active Shooter is Irrelevant

The biggest problem with the whole “Huber as hero who was stopping an “active shooter” line of argument by the prosecution, however, is the utter lack of evidence to support a reasonable perception of Kyle as an active shooter.

First, we must consider what qualifies as an “active shooter.”  The various governmental agencies that deal with such events have done a remarkably poor job of coming up with a solid definition of “active shooter.”  When we look at the incidents that they report as qualifying as “active shooter” events, however, we can see that every “active shooter” incident they define has one core characteristic simply not found in this case.

Keep in mind that when we’re arguing that the men in the street attacked Kyle because they perceived him as an “active shooter,” that perception must be based on his conduct prior to their attack.  In other words, his shooting of them, after they were attacking him, cannot have been the basis for their perception prior to their attacks that Kyle was an active shooter.

In July 2021 the Federal Bureau of Investigation published the report “Active Shooter Incidents in the United States in 2020.”  That report provides a high-level analysis of the 40 shooting events that year that the FBI flagged as “active shooter” events.

In every single one of those “active shooter” incidents, either multiple victims were killed or injured, or the shooter was firing in a manner obviously intended to kill or injure multiple people (into occupied buildings, into neighborhoods, into campgrounds, etc.).

It’s worth mentioning here that at least with respect to “jump kick man” and Huber, there’s literally zero evidence that either of them perceived Kyle as an “active shooter.”  Remember, “jump kick man” disappeared and was never identified, and Huber died instantly on the scene.  To claim that they possessed that perception is to engage in mind-reading, and mind-reading is not evidence.

I suppose there might be evidence that Gaige Grosskreutz perceived Kyle as an “active shooter,” but then he would need to testify to get that perception into evidence in this trial.  I suppose we’ll have to see if he’s willing to do that—and whether the defense impeachment of him would thoroughly gut his claimed perception.

Even if Grosskreutz is willing to make that claim under oath and take the cross-examination, however, his perception would tell us nothing about the perceptions of “jump kick man” and Huber—and each of the three men is the basis for distinct criminal charges.

So, bottom line, we don’t actually know even whether any of the three men who attacked Kyle even possessed a perception of Kyle as an “active shooter” in the first place.  And where’s there’s no evidence on an issue, there ought be no argument on that issue.  Evidence-free argument ought have no place in a criminal court room.

Separately, even if there were evidence that the men had a genuine good-faith belief that Kyle was an “active shooter,” was there evidence that would allow this belief to be reasonable?

To give a sense of what reasonableness means in the law, and particularly the point that reasonableness can only be based on evidence, I refer you to Judge Schroeder’s description of “reasonable doubt” to the jurors when they were first seated, and before they’d even heard opening statements.

Judge Schroeder: Reasonable doubt means a doubt based upon reason and common sense. It is about for whatever reason can be given, arising from a fair and rational consideration of the evidence or want of evidence. It means such a doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important affairs of life. A reasonable doubt is not a doubt which is based upon mere guessing, or speculation, adult which arises merely from sympathy, or from fear to return a verdict of guilt is not a reasonable doubt. A reasonable doubt is not a doubt, such as may be used to escape the responsibility of a decision. Examine the evidence and search for the truth, giving the defendant the benefit of every reasonable doubt.

(Emphasis added.)

And as Wisconsin case law tells us, “Speculation does not support reasonable suspicion.” State v. Richardson, 732 N.W.2d 864 (WI Ct. App. 2007).

The bottom line, for a belief or perception to be reasonable, it must be based on actual evidence.  If there is no evidence on which to base a belief, that belief can only be unreasonable, speculative, and imaginative–and the unreasonable, speculative, and imaginative are no grounds for legal argument in court.

Indeed, a large part of the core function of a court, and a judge, is to act as a gatekeeper excluding arguments that are unreasonable, speculative, and imaginative.

That is, an unreasonable, speculative, and imaginative perception of Kyle as an “active shooter” would obviously be useless for any legal purpose.  One does not lose the privilege of self-defense because your attacker has an unreasonable, speculative, and imaginative perception of you as a bad actor.  That would be insane—it would mean your privilege of self-defense was dependent entirely on the irrational beliefs of the person attacking you.

Remember:  An “active shooter” is someone who shoots, or attempts to shoot, multiple people.  That’s the single common characteristic of all the shooting events the FBI identifies as “active shooter” events.

There is nothing about Kyle’s conduct prior to his being knocked to the street and attacked by “jump kick man,” Huber, and Grosskreutz that would indicate that Kyle had either shot or attempted to shoot multiple people.

Indeed, the only firing he had done was into the body of Joseph Rosenbaum, in a period of 0.76 seconds, under circumstances where Kyle was pleading “friendly, friendly, friendly” while being relentlessly chased down by a murderous Rosenbaum lunging for Kyle’s rifle.

That is as far from the conduct of an “active shooter,” as that term is officially used by the Federal government, as one might imagine.

So there’s no evidence of Kyle as an “active shooter,” and there’s no evidence that would allow for a reasonable (even if mistaken) perception of Kyle as an “active shooter.”  So any perception of Kyle as an “active shooter” could only have been irrational, speculative, and imaginative—and that’s not the basis for legal argument in court.

As I mentioned while covering the trial last Friday, when I heard ADA Kraus spell out this “Huber as a hero dying to stop an active shooter” narrative, I would argue to the court that this argument is entirely free of any substantive evidence that such a perception on the part of Huber existed, and even if the perception existed there is no substantive evidence that the perception was reasonable.

On those grounds, the State should not be permitted to advance this evidence-free narrative of “Huber as a hero dying to stop an active shooter” at all—the jury should never hear that evidence-free narrative offered to them.

Conclusion

So, bottom line, I don’t see a viable provocation attack on Kyle’s claim of self-defense in the context of his shooting of Joseph Rosenbaum, although at least here there might be matters of factual dispute for the jury to decide.  For example, Joshua Ziminski might be willing to testify that he overheard Kyle say something provocative to Rosenbaum as Kyle passed by Rosenbaum hiding among the four cars, just before Rosenbaum chased down the fleeing Kyle. Then the jury would also assess the defense argument that even if that happened, Kyle regained self-defense by withdrawal and communication.

In the context of a provocation attack on Kyle’s claim of self-defense in the context of his shooting at “jump kick man,” Huber, and Grosskreutz, based on their perception of Kyle as an “active shooter” whom they were heroically attacking, not only do I not see such a provocation attack as likely to any degree of legal certainty to be successful on the legal merits, I don’t even see an evidentiary basis for making the argument at all.

On those grounds, I believe the court should prohibit the State from presenting their “Huber as hero who died stopping active shooter Rittenhouse” narrative to the jury at all.

And if that narrative is stripped from the State, as it ought to be, I frankly struggle to imagine what the State would say to urge a finding of guilt on any of these criminal charges, absent the kind of wholly emotional argument of the type made by the State in the closing of the George Zimmerman trial—and that one ended with Zimmerman acquitted of all charges.

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

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.

NOTE: This post has been substantially re-organized from its original form, and some technical errors corrected; the fundamental legal conclusions, however, remain unchanged from the original. [AFB: 11/8/2021]

 

 

 

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

With all the prosecution has done so far, running the “He was wearing a short skirt and asking for it” approach is not out of the question.

Lee Van Cleef? I’ve lost all respect for you, professor.

Good overview. I’m not a lawyer, but I’ve been watching the trial. I don’t see how the state could infer what Huber was thinking since Huber is dead. They can’t very well introduce the Hero trying to save the city from a active shooter unless Huber’s prior behavior/lifestyle makes it clear or Huber’s actions during the riot that night or the night’s before, ie, was Huber cleaning up during the day? Is there testimony that Huber felt a need to protect the city from the volunteers that were attempting to thwart the rioters?
And how could the state even get any of that into testimony? Now we get bicep-blown-off guy and he’s gonna get to explain why he was armed during a riot and attempted to shoot Kyle and even said so in the hospital. Gonna get interesting. Floyd nephew on twitter going for the mistrial I see, with zero fear of being prosecuted. All we need now is a Californian Congresswoman to show up with a bullhorn and ensure a circus.

George_Kaplan | November 7, 2021 at 8:50 pm

Rosenbaum’s friend fired the first shot, Rosenbaum screamed an expletive and attacked Rittenhouse. Everything the followed was as a result of that. Surely it is Rosenbaum that provoked the confrontation and suffered the consequences?

The mob that attacked Rittenhouse afterward, and the casualties that occurred, were a consequence of Rosenbaum’s attack and Rittenhouse’s lawful defence of self when avoidance was not an option – and yes I am aware this article specifically said that’s not a requirement so the fact that Rittenhouse still tried is yet another factor in his favour.

As regards Grosskreutz potentially claiming Rittenhouse was an active shooter, isn’t he the guy who approached with his hands up before pulling out a gun and trying to shoot Rittenhouse? Surely such a claim would be inherently contradictory. If Rittenhouse were an active shooter you wouldn’t approach. It’s also interesting to note that Grosskreutz appears to be about the only individual whose cellphone was not seized by police despite them getting a warrant to do so. What was on his phone that the DA does not want to see, or let the defence see?

Side note. IANAL but given the prosecution’s own witnesses appear to be supporting the defence’s contention of self defence, that rioters attacked Rittenhouse, is it possible the judge could dismiss the defence’s need to call witnesses and simply rule the prosecution failed to make a case and end the trial with Rittenhouse innocent of all charges? Or is the case so political that even if justified, it’s not a risk a judge would take?

    Also, earlier that day Rosenbaum threatened Rittenhouse’s life. He told him he’d kill him if he caught him alone.

      Ben Kent in reply to JHogan. | November 7, 2021 at 10:21 pm

      @JHogan … CNN did a story on this case. They questioned whether a claim of self-defense would hold up. And they conveniently FAILED to mention the threat that Rosenbaum made to Rittenhouse (which you mention in your post).

      I think the Prosecution is coming up with this crazy theory “Kyle provoked it” – because they are trying desperately to save face. They know they blew it. They just have to come up with some thing their woke base will latch on to as a pretext for riots to come.

    Binger is not smart enough to come up with this scheme by himself. These are lawfare level schemes of the first magnitude. I smell a pack of rats.

      The Packetman in reply to Elzorro. | November 8, 2021 at 7:04 am

      Don’t underestimate your opponent: not everyone on the left is an idiot. Binger is plenty smart enough to think this up, though I’m sure all the possible strategies were gamed before trial.

    While what you’re asking about in your last paragraph (a directed verdict or judgment as a matter of law) is technically possible at any point prior the start of jury deliberations, it almost never happens in real life even though it’s a frequently employed and successful maneuver in TV court dramas.

    TargaGTS in reply to George_Kaplan. | November 8, 2021 at 4:14 pm

    This has been such a no-good, horrible day for the prosecution, I’m thinking maybe a directed verdict after the prosecution rests isn’t an impossibility. The state’s witness ‘Gauge’ blew up the state’s entire case.

    DaveGinOly in reply to George_Kaplan. | November 8, 2021 at 5:29 pm

    When Grosskreutz was first noticed by Kyle, he already had the pistol in his hand. Then he faked “I’m cool” by putting his hands up. He then made the mistake of drawing a bead once more on Kyle, but Kyle noticed and fired.

    If Grosskreutz thought Kyle was an a “mass shooter” of any kind, then he should have been in fear of his life, and would not have (fake) surrendered to someone he thought was bent on causing a multi-casualty event. If that were true, he would have feared Kyle was going to shoot him, whether or not his hands were up. He would have just shot Kyle, period.

    The fact that he didn’t shows that he knew Kyle wasn’t a rampaging shooter, because he bet his life on his judgment of Kyle as a “good guy” who wouldn’t shoot someone whose hands were raised.

smalltownoklahoman | November 7, 2021 at 9:12 pm

After the week they had and the disaster that was Friday ADA Binger has got to be desperate for anything he can call a win in this prosecution. There’s some anticipation building that tomorrow could be very interesting.

Wolfman Mozart | November 7, 2021 at 9:38 pm

Mr. Branca mentioned, again, that the shooting of Rosenbaum took 0.76 seconds. It is my understanding that four shots were fired. An AR-15 type semi-automatic rifle can fire forty-five rounds per minute or one round every 1.5 seconds. Four rounds could be fired in an elapsed time of 4.5 seconds (the first shot is at zero seconds). I think the shooting time must be 7.6 seconds. It shouldn’t make a difference in the legal claims, but reliance on an erroneous time could weaken other features of the defense.

    I don’t know why you think this, but you’re completely mistaken. 0.25 second splits are completely and easily possible. Done routinely in competition, even quicker. Just Google “3-gun match” and I expect you’ll find thousands of videos of shooters firing AR-15 rifles with around 0.25 second splits.

    If you watch the video you can clearly hear the shots fired very quickly. In well under 7.6 seconds. Well under 4,5 seconds. More like under a second.

    Colonel Travis in reply to Wolfman Mozart. | November 7, 2021 at 10:50 pm

    FYI – Jerry Miculek can fire 7 rounds in 1.5 seconds.

    TheOldZombie in reply to Wolfman Mozart. | November 7, 2021 at 11:22 pm

    An AR-15 is capable of firing more than 45 rounds a minute. How fast it fires depends on the person pulling the trigger. Kyle was yanking that trigger hard and fast.

    And the video is very clear that the shooting was well below 7.6 seconds and even 4.5 seconds.

    45 rounds a minute is the sustained rate of fire for M-16/AR-15 rifles. Sustained meaning pausing to reacquire your target between shots. If you were to arrange a large enough source of ammunition, an M-16 (and an AR-15 if capable of fully automatic fire) has a cyclic fire rate of 700 rounds per minute. I might be off on the cyclic rate, it’s been a long time since I’ve had to know that.

      TheOldZombie in reply to jmare. | November 7, 2021 at 11:44 pm

      I think the point is that Kyle had no need to aim. Rosenbaum was right in front of him and Kyle just pulled the trigger four times rapidly.

      The video doesn’t show 4.5 or 7.5 seconds to fire four shots. It was rapid.

        My comment was addressing the claim that Ar-15s have a 45 rounds per minute fire rate. That’s from military doctrine and refers to different firing rates: sustained, rapid, and cyclic. Cyclic is the actual max number of rounds that a firearm can can fire a minute.

        I agree that the shots were fired as fast as Kyle could pull the trigger. Really, the only reason Kyle scored so many hits was due to such close ranges and luck.

          DaveGinOly in reply to jmare. | November 8, 2021 at 5:46 pm

          I was just going to write that the sustained rate of fire to which you are referring comes from military doctrine and refers to a training standard and not to the capability of the firearm. “Rapid fire” is likely a close approximation, but still refers to a military training standard and is not necessarily relevant to what a particular shooter can do with an AR in any particular situation. “Cyclic rate” depends on the weapon, not the shooter. It is a weapon’s maximum rate of fire, in rounds per minute, regardless of the length of time it is actually fired. (It does not include reloading time, even if reloading is necessary to keep a weapon firing for a minute or more. It is not necessarily the practical rate at which fire can be sustained for a minute. Generally, only belt-fed weapons are actually capable of sustained fire at their cyclic rates.)

    The difference between a google search and real experience, ladies and gentlemen.

    Brave Sir Robbin in reply to Wolfman Mozart. | November 8, 2021 at 7:23 am

    “It is my understanding that four shots were fired. An AR-15 type semi-automatic rifle can fire forty-five rounds per minute or one round every 1.5 seconds.”

    I will pile on here. An AR-15 has a cyclic rate of between 700 and 900 rounds per minute depending upon type, build, and ammunition used. If you can pull the trigger fast enough and have a large enough magazine, the weapon could fire that many rounds per minute, excepting it might literally melt and very likely either jam or explode before it fired that many rounds in succession..

    The weapon generally is recognized to have a “sustained rate of fire” of around 15 rounds a minute, because anything over that, over a prolonged period, risks damaging the barrel and various internal mechanisms and components due to heat and follow-on friction and heat of rounds. The sustained rate of fire limit also takes into account other factors like the amount of time it takes to engage separate targets, change magazines, reload, and allowing for weapon cool-off.

    In an emergency, you can fire 100 rounds in “rapid fire” but you risk damage to the weapon, jamming, and please do not touch the barrel afterwards. It may be visibly reddish hot in low light.

    But in short burst, the cyclic rate easily allows for the weapon to fire four rounds in 0,76 seconds. The rate in this short period is more controlled by how fast a person can physically work his finger on the trigger, and the play in the trigger as it needs to come forward and reset.

    4 rounds at close range that quickly is indicative of “panic fire,” which could be used as an indicator of Defendant’s state of mind. A person not under duress and with intent, who was practiced, might double tap the target.

    Some military versions of the weapon have a three-round selector switch which allows the weapon to fire a three-round burst at cyclic rate (900 rounds a minute) with a single pull of the trigger, and an automatic fire selection that allows the weapon to fire continuously at cyclic rate until it fails or runs out of ammunition. Kyles weapon had neither of these functions. So the four rounds fired in rapid succession was panic fire.

    Others have given great technical response.
    I will tell you that my personal experience is firing about 2 rounds per second on the range. That’s deliberate, attempting to achieve a sustained “rapid” fire on a target, with a smallish grouping. I can fire faster if I’m simply trying to keep the gun on a man-shaped/sized target.

    Also, your math is wrong. 45 rpm would be 1 1/3 seconds per shot, not 1.5.

I think there is a major problem with arguing that underage possession of a rifle is provocation. At 18, there could have been no provocation based on carrying the rifle. He was four months shy of his 18th birthday. For it to be provocation, wouldn’t Rosenbaum et. al. have to have known of the illegality, i.e., that he was four months shy of his 18th birthday? Otherwise, how was it provocative?
I think the second issue may be the initial conversation between KR and GG. IIRC, didn’t GG walk up to Kyle and exchange words, before KR was attacked by drop kick man and Huber? Why didn’t KR shoot him then?

    henrybowman in reply to A Thinker. | November 8, 2021 at 12:30 am

    It’s unlikely Rosenbaum knew squat about Kyle’s age. But Kyle knew his own age, and I suspect he knew that the laws of both states forbade him from carrying any concealable firearm. So to claim that it constitutes a “provocation” for a person exercising his right to bear under the Second Amendment (and under state law, as he understood it) to carry the only firearm the law allows him is whipsawing him — he should not be penalized for his “choice,” which was a “forced choice” under law.

    Grosskreutz is an record stating that his intent was to “kill” Rittenhouse — a legally unjustifiable goal regardless of whether he thought he was right or wrong. And Grosskreutz was well aware that he was forbidden to possess the handgun he used to attempt that murder.

    Char Char Binks in reply to A Thinker. | November 8, 2021 at 8:58 am

    It’s not that anyone, shooter or victim, knew that he was carrying illegally. The argument is that he was his carrying was both a crime and a provocation; the first part is disputable, the second a stretch.

    TargaGTS in reply to A Thinker. | November 8, 2021 at 11:33 am

    I agree with you completely. But, I think the prosecution is trying to leverage the fear the average person has when they see someone carrying a weapon the media has conditioned them to believe is associated only with terrorists. The legality of what Rittenhouse was doing is, as an EMOTIONAL matter, completely irrelevant. The state is hoping the jurors, some of whom may simply be terrified at the sight of a firearm, will be inclined to agree the the allegation that Rittenhouse was being ‘provocative’ just bey carrying it.

    I think it’s sometimes difficult for people who believe strongly in the right of self-defense to fully appreciate how firearms are seen by some percentage of the public which seems them as inherently evil and holding one as a criminal act even if it’s plainly not.

      henrybowman in reply to TargaGTS. | November 8, 2021 at 2:37 pm

      Hopefully, they will become desensitized to chronic hoplophobia by the number of witnesses they encounter during this trial who were also carrying the very same platform that Kyle was carrying.

FRIENDLY, FRIENDLY, FRIENDLY

Kyle said that multiple times to convey that he meant no harm – before being attacked.

Good luck to Prosecutor to try to turn this into provoking attack.

I posted earlier that I think the Prosecutor wants to save face. He knows he lost this case. Now he’s just throwing shit against a wall to give the woke a pretext to riot at the “not guilty” verdict that he knows is coming.

He provoked them much like you would provoke a pack of wild dogs, by running away.

Mr, Branca, would you please take a moment to review your description of “provocation” and “provocation with intent”. Concerning the later, you state that “provocation with intent” may be either lawful or unlawful acts. However, in describing Rittenhouse and Rosenbaum’s interactions, you note that for “provocation with intent”, the act by Rittenhouse must be “unlawful”. Your earlier description of “provocation with intent” stated that both lawful unlawful acts could result in a finding of “provocation with intent”. It was confusing that you stated that only “unlawful” acts could be the basis for “provocation with intent” when analyzing the Rittenhouse/Rosenbaum interaction.

I may have missed or misinterpreted the argument. Forgive me if so!

Please do not take this as criticism. I am reposting every one of your post here on my Facebook page. Mr, Ayoob’s writings got me on to your site and this website site. It is the moat fact based description available! Love your work! It needs to be read by all. Too much garbage in the mainstream media.

Best regards,

Rich Boll

    Yes, thanks, a slip of the keyboard there. As noted earlier in the post, “simple provocation” requires the provocative conduct to have been unlawful. “Provocation with intent” can be based on either lawful or unlawful conduct, but then requires evidence of the necessary intent. Text corrected.

      James B. Shearer in reply to Andrew Branca. | November 7, 2021 at 11:55 pm

      ‘… Text corrected.”

      You corrected one instance but there were several. Another was:

      “There’s also a second problem with the provocation with intent attack on Kyle’s claim of self-defense, however, and that is that it requires not only unlawful conduct, but also evidence of that specific intent to induce an attack so that one will have an excuse to use deadly force against the other person.”

      As you note here the main issue with provocation with intent is the lack of evidence that Kyle was intentionally provoking an attack. If anything it appears Kyle was under estimating how dangerous the situation was.

        Yes, I worked over the entire post this morning, so all that should be addressed, thanks for correctly bringing it to my attention.

        None of the changes, however, alter the legal conclusions of the piece.

          Its interesting that the legislature uses the term “provocation with intent” to describe what is actually more like “Baiting” or “enticing” or “entrapment”. Because that is what they are describing, so why the soft words? Why not just come out and say any scheme designed to provoke a violent response? Intent is inherent in the fact that there is a plan around it – so if there is any evidence of anyone making such a plan, or conspiring with others to carry out such a plan, it all is a far greater offense than heated words exchanged during an argument, which tend to arise spontaneously just from anger and often levied as a non-physical way of defending oneself or even perhaps in retaliation for unkind words from one’s opponent. Has this nation totally forgotten why we have the adage “Sticks and stones”?

          Because provocation alone, is a relatively simple term as used in the statute and doesn’t actually require being a term of art, so I just find it fascinating that the legislature chose to do so.

          But this also highlights how badly in need of reform these laws regarding “provocation” or “incitement” truly are. This entire doctrine of “fighting words” is defective because it gives the normative behavior to hot-heads who can’t control their own emotions. Should the law be doing that? These laws seem like anachronistic relics of a bygone age where a chivalrous and chauvinistic code of honor prevailed and was given primacy under the law. Even our founders were not immune from this idiocy and would arrange fights and duels over the merest of slights and barbs. We’re surely better than that. We’re better than THEM. We’re more enlightened. We’ve seen their mistakes. We’ve learned of their tragic and pointless deaths of honor. We reject, as more modern and civilized peoples, the idea that fisticuffs or dueling pistols are the proper way to handle an insult or embarrassing comment.

          (As an aside, I find it an interestingly ironic coincidence that Derek CHAUVIN has that name given the meaning of that word root, in an incident that plays so heavily into the agenda to undermine the fundamental American values of Law & Order)

          In any case, the law shouldn’t be creating excuses for those with no self-control. Is it not the objective of the law to elevate the most civilized aspects of human nature and to suppress or punish the most base ones?

          If you look at the body of law, “morality laws” are not just the original but also the most well-known and regarded – laws against murder, or theft, or rape, are laws written because the most base impulses – for anger, greed, and lust, should not be indulged, as a society that indulges bases desires is not civilized, nor is it peaceful or safe or pleasant.

          In other words – morality laws are all about the suppression of animal instincts, so that we may exist in a condition of peaceful voluntary interactions that do not involve force or fear. This is still the legal standard for “enhancement” of criminal statutes – a theft complicated by force/fear is a robbery with much harsher punishments, sexual activity compelled thusly is a felony with far more severe consequences than statutory rape, or even than other scenarios of non-consent (such as the category of inability to give consent by virtue of unconsciousness, or by inability to give informed consent due to impairment of judgement by intoxicating substances)

          Provocation is a crutch for the weak-minded, those with poor impulse control, and the mentally ill. It should be banished from the legal lexicon and from our statutes.

    Elzorro in reply to richjb. | November 8, 2021 at 12:20 am

    Looks to me like if this theory were to prevail it would leave whole cities unable to defend themselves against looting and burning and mayhem at the hands of violent leftist mobs, while the police sit in their APC’s and do nothing and the FIB flies around overhead doing damage assessment patrols.

Insane if they try this move. Everything the states own witnesses testified too shows Kyle is innocent. If they were crazy enough to try this would this raise the chances of a direct verdict being issued by the judge when asked for by the defense? I’m willing to bet the judge would be annoyed the state tried this tactic. There is nothing that one can point to that Kyle provoked any attack. Kyle was running from all of his attackers. If he hadn’t been trapped in the car lot he might not have turned to face Rosenbaum. Against the others Kyle was still running away and was attacked only when he tripped and fell to the ground. Did jump kick man, Huber, and Grosswitz even know Kyle shot Rosenbaum?

    There’s evidence that Groscreitz (I know I butchered the spelling) was aware that people were saying that Kyle had shot somebody, but as far as him having direct knowledge, I don’t think so.

      TrumpWon in reply to jmare. | November 9, 2021 at 12:38 pm

      His excuse that he thought Kyle was “an active shooter” is an obvious fabrication that he came up with after the fact to justify his own illegal conduct.

      “Active Shooter” is a term that means “mass shooter”. Ie, the objective of an “active shooter” is to kill as many people as possible. No reasonable person could claim that a mass shooter would run through a crowded area, not shooting at anyone. That isn’t what mass shooters do. Mass shooters shoot indiscriminately at any available target ; it is a crime of opportunity and the venue carefully chosen to maximize the number of potential victims (and perhaps ease of ingress/egress) – secondary considerations are typically the TYPE of victims (class or group) that in the shooter’s view “deserve” to die. None of these characteristics are present in the situation that Grosskreutz could observe, and so no reasonable person could come up with the impression of a mass shooter.

      If anything, in the absolute best, most favorable light, Grosskreutz assumed that Kyle had *unlawfully* shot someone; he didn’t know that the shooting was fatal, he also didn’t know whether or not it was justifiable, as he didn’t witness it. So he had no reasonable basis for the assumption. So in the best light available to view his actions, he was acting as a vigilante, with no personal information as to what Kyle had actually done, or whether or not Kyle was properly identified as a person who had shot someone. It could have been a case of confusion or mistaken identity and Kyle could have simply been an uninvolved participant running away from an enraged mob. Because he didn’t witness the shooting itself, he didn’t have direct personal knowledge on which to make this evaluation and therefore his decision to involve himself and attempt to use lethal force against Kyle, who had previously posed not threat to himself, was not justifiable. He introduced himself into a situation that clearly did not involve him, or implicate his own safety (Kyle had in fact already passed him by without demonstrating any threat or intent to harm him).

      So he’s lying, and hopefully the jury is sharp enough to understand that he is.

He triggered them? Yep that is where Binger is going. Now we also have the jury intimidation by George Floyd nephew to add to this miscarriage of justice. What a devious scheme the state has hatched to get Kyle. They are not victims but Hero’s of the State. maybe Brandon could award them all with a posthumous Hero of the State Medal together with an Order of Lenin to boot to help Bingers case.

How dare your hand keep hurting my face!!!

Stompy foot!!

Did I call it, or did I call it? KR was the aggressor because he existed. Had not Kyle existed the f***ing leftist would have had no one to attack. . And in the immortal words of Greta Thunberg, HOW DARE HE!!!

More stompy foot!

I actually have experience in this as a legal officer on staff at CNFJ. Commander Naval Forces Japan. I used to wonder why the actual JAG would come to me with questions about the law. I was just a collateral duty legal officer.

But not only did I understand Japanese. I understood Japan. It’s like Ireland. You don’t beat the local horse at the county fair.

Meet me at the gate if you require further instruction.

Seriously. How hard did I have to work to get a Marine driving to work compensation? 4 Marines; Gunnery Sergeants, killed on New Years day, driving to work on Okinawa. And the Japanese authorities actually told me that if we f***ing Americans weren’t there then the drunk Japanese @$$hole ON NEW YEAR’s DAY would have had nothing to hit.

So why ruin his life?

I held my tongue. I held my tongue until I got back to Tokyo. Then the locals learned. Hey you know what? Somebody invited these mofos.

    gonzotx in reply to Arminius. | November 8, 2021 at 10:52 am

    Why hold your tongue? These assholes started the war and killed thousands of innocent young men in the process a d we wouldn’t need to be there if they hadn’t!

So Kyle, welcome to my world.

Nihon wa ore no dai ni furusato. Japan is my second home. I love Japan. It didn’t work but my bride was a Japanese girl. Not the nation’s fault. She’s happily remarried and I only wish the best for her.

Think about it for a minute. Why would someone attack someone openly carrying an AR-15? I do think that they were provoked. Or maybe think that they were provoked, by being armed. They think (somehow) that their riot and arson was morally justified. Kyle was possibly seen by them as standing up to them, and thus provoking them, by the mere fact of being armed, and not therefore being susceptible to being bullied by their techniques.

We watched as AntiFA/BLM increased their arms and armaments as groups on the other side started showing up armed and armored. Early, they just showed up with bats and skateboards. But by this point, they were now carrying guns, and some were calling themselves “security”, essentially seeing their job as protecting the rioters and arsonists from armed groups who were there to protect the town and its citizenry from the rioting and arson.

This whole prosecution reeks of this attitude, that the rioters and arsonists were morally justified in their actions, and showing up with an AR-15 to fight the fires that the arsonists were setting was provocative. Otherwise, they could just beat them up, if they didn’t desist putting out the fires, etc. No surprise then, that the prosecutors, leftist fellow travelers, might accept that point of view. I think that you can see this attitude by who they charged with crimes, and who they considered victims (formally, they treated the assailant who pointed his Glock at Kyle, and got shot for it, as the victim, instead of an assailant, which was their justification for not searching his phone, despite having a warrant allowing it).

Their ultimate problem though is likely to be that the actions seen as provocative, and morally and legally unjustified, by the judge and jury, are likely to be those of the rioters and arsonists. These violent young people, often from out of town, burned out parts of Kenosha in protest for what? An ex con ODing on fentanyl while in police custody in another state? No. The real reason was Orange Man Bad, with which the DA agreed with the rioters and arsonists. But I don’t see the judge and jury justifying turning the law upside down to justify burning out their community.

    Pat Lee in reply to Bruce Hayden. | November 8, 2021 at 6:57 am

    That would only make sense if they attacked the others who were armed the same as Kyle. Here are some things so far the prosecution has used to show provocation: 1.when Kyle went into the street to put out the dumpster fire, one of the people in his group told him to get back on the property (get out of the street) and went on to say that’s why he was running into problems with people during the night. 2.why was he there? To protect the buildings or put out fires or give medical aid?3.his reply to a protester on the street. It was seemingly sarcastic – could be construed as confrontational. 4.an earlier confrontation with Rosenbaum. 5.why didn’t he leave altogether after his life was threatened earlier by Rosenbaum? That goes to the issue of avoiding/fleeing from the threat. So, he was armed. Provoked Rosenbaum and others. And, after provoking attack, shot and killed people.

      healthguyfsu in reply to Pat Lee. | November 8, 2021 at 8:19 am

      And none of those hold any water.

      I think you meant “here are the weak ways in which the prosecution has attempted to stick provocation without appearance of any traction.”

      All of them are specious at best.

    henrybowman in reply to Bruce Hayden. | November 8, 2021 at 2:44 pm

    “These violent young people, often from out of town, burned out parts of Kenosha in protest for what? An ex con ODing on fentanyl while in police custody in another state?”

    No. In honor of a mostly-peaceful, wife-beating ex-con who, while totally unarmed and simply trying to drive away in a car he didn’t own, was preparing to stab one or more of the “pigs” behind him for attempting to take a scumbag out of circulation.

    DaveGinOly in reply to Bruce Hayden. | November 8, 2021 at 5:58 pm

    I’m pretty sure Rosenbaum was more incensed by Kyle’s possession of a fire extinguisher than an AR. But he also took umbrage at the presence of everyone there whose presence was meant to put a crimp on his plans to riot, loot, and commit arson.

    The question is: Can someone with criminal intent be (legally) provoked by the presence of a person whose intent it is to prevent criminal activity?

    Even if he was provoked by Kyle’s possession of an AR, why was he so provoked? Why would he think Kyle’s AR should concern him at all that night? I think the answer to that last question is obvious.

LongTimeReader | November 8, 2021 at 5:55 am

After Rittenhouse shot Rosenbaum, people were shouting “he shot that dude” and “he shot him”, I hope the defense teases out of GG that he heard that and was aware to cut the active shooter line off at the pass. He shot a single person, that doesn’t make him an active shooter.

Someone else made another point I would aslo make, no one there had carded Rittenhouse, claiming some sort of provocation by him being underage is just ridiculous.

How on earth is openly carrying a rifle inviting a (melee) attack?
Bring—a—skateboard—to—a—gunfight type of thing??
Does that mean that having a nuclear arsenal means you are provoking attacks on your country?

Maybe you can provoke an ambush type of attack but certainly not an attack that would allow you to defend yourself.

Clearly, arming yourself is deterrence, the opposite of provocation.

    The left is intent on destroying anything 2A related. Once they can successfully argue that the mere presence of a firearm opens the carrier of that firearm to deadly attack they’ll have taken a big step towards their goal. That’s why they are making the argument now.

    Ben Kent in reply to felixrigidus. | November 8, 2021 at 11:19 am

    Agreed. Openly carrying a gun is deterrence. It says “Don’t F*uck With Me” _ It does not invite an attack. What idiot attacks someone with a gun ? Only a person who is either suicidal or intent on killing the gun holder. And the gun holder cannot tell the difference – has to assume the later.

The other main shortcoming of the heroic-response argument is that it’s based on the mindset of those that KR shot. What they thought they were doing is immaterial as self defense is based on KR’s reasonable beliefs at the time. Of course, a jury could go any way on it, regardless of the law.

    Bruce Hayden in reply to f2000. | November 8, 2021 at 12:46 pm

    Keep in mind, everything is in the eyes of the beholder. We have the AntiFA/BLM associated rioters and arsonists, They were (or at least claimed to be) outraged at the shooting of a black man by the police. They believed themselves completely justified in burning down parts of Kenosha, and beating on, and maybe killing, anyone who stood in their way. For them, resisting them provoked them into beat downs. This wasn’t just Kenosha, but really wherever AntiFA and BLM rioted. For whatever reasons, the DA, the prosecutors, and maybe even the lead investigator, seemed to agree with this world view.

    Then there were those like Kyle, and these other armed opponents who believed that they were in the right, that the rioting and arsons were bad. The beat downs were bad, etc. they went visibly armed because they wanted to protect the city from the rioting and arson, and to live to tell about it. I suspect that most everyone here is on their side.

    Finally, we have the judge and jury. Were they sympathetic to the rioters and arsonists, felt appalled when Blake was shot by the cops, etc? And sympathized with the anger felt when confronted by armed civilian city defenders? Or do they see the damage caused by the rioting and arson?

    We don’t know where the jurors sit, but the judge seems to be keeping everything in perspective. Normally, I think that juries do the right thing, but the lead cop in the George Floyd case was sent to prison for what I saw as fairly standard procedure for responding to a (ultimately fatal) drug OD. What is worrisome to me is that their verdict appears to have been at least partially a result of juror intimidation, and this nephew of Floyd’s seems to be trying to do that here too.

Is ‘Lefty’ Grosskreutz being called today? I don’t want to miss it.

I would say a prime example of provocation with intent in this case is Rosenbaum’s false stepping “shoot me n-word” incident.

This article has left me confused. First, it says:

“Also important for our purposes is that while simple provocation could be triggered only if the provocative conduct was unlawful, provocation with intent can be triggered by conduct that is either unlawful or also by conduct that is lawful.”

Then later:

“First, the provocation with intent can be based only on unlawful conduct.”

Then:

“There’s also a second problem with the provocation with intent attack on Kyle’s claim of self-defense, however, and that is that it requires not only unlawful conduct, but also evidence of that specific intent to induce an attack so that one will have an excuse to use deadly force against the other person.”

Then:

“There’s also the possibility of arguing, however, that if Kyle’s conduct wasn’t provocation with intent, that it was at least simple provocation. That is, a lawful or unlawful conduct likely to provoke others to attack him.”

But finally:

“[P]rovocation with intent, as noted previously, can be based on either lawful or unlawful conduct; it is simple provocation that requires unlawful conduct”

And what does “illicit a threat” mean? Doesn’t anybody proofread any more?

    f2000 in reply to a. | November 8, 2021 at 7:01 am

    “What does “illicit a threat” mean” — elicit, i would assume.

    “Doesn’t anybody proofread any more?” — No one’s perfect.

    Yes, I was sloppy there. I re-worked the piece this morning to fix all of that.

    None of it, however, changes the legal conclusions of the piece.

TaxPayingPatriot | November 8, 2021 at 6:56 am

Thank you, Mr. Branca, for the excellent ongoing coverage. Have watched much of the trial live. Interesting thought on the Hail Mary … ‘triggered’ by Kyle’s possession of a weapon, but why not by those of others? Absent all the video and now shared and previously unknown FBI drone footage, such a lie might stick. But then, we’d be trying to get into the heads of those who went out looking for trouble and found it, speculating what their motivations were, and what they may have been thinking in the moment. All I see is a group of people trying to run down a guy, screaming about bashing his brains in, and the person of interest (Kyle) taking them at their word and responding based on their actions.

Who benefits financially by this prosecution? We know that Attorney Ben Crump is in the mix with the local Blake Family Attorneys decried the DA for not bringing charges against the officer. That is was the predicate for the riots, looting, and arson.
Now Grosskreutz who was volunteering as a medic YES an armed medic for THE BLACK LIVES MATTER movement. Is sueing the city claiming that the police conspired with vigilantes in FEDERAL court. Draw your own conclusions.

From the WAPO

A protester shot by Kyle Rittenhouse sues Kenosha, Wis., says police deputized ‘vigilantes’

Gaige Grosskreutz, poses for a portrait at a park in Milwaukee on Sept. 26, 2020. Grosskreutz, who attended close to 100 nights of Black Lives Matter protests, lost part of his right biceps after being shot by Kyle Rittenhouse at a protest in Kenosha, Wis., but survived. (Lauren Justice for The Washington Post)
By Kim Bellware
October 16, 2021|Updated October 16, 2021 at 8:01 p.m. EDT

CORRECTION
An earlier version of this story misquoted a lawsuit against the Kenosha, Wis., Police Department that said the department deputized a “roving militia of White Nationalists vigilantes” in summer 2020. Those words and similar sentiments are used in the lawsuit, but not in that order. The lawsuit alleges that the department deputized “a roving militia,” and it refers to “a band of white nationalist vigilantes.” This story has been corrected.
Police deputized a “band of white nationalist vigilantes” during last year’s racial justice protests in Kenosha, Wis., where Kyle Rittenhouse fatally shot two people and injured a third, the lone survivor of the incident alleges in a new lawsuit.
Get the full experience.
Choose your plan
Gaige Grosskreutz, 27, filed the lawsuit Thursday in federal court in Milwaukee, just weeks before Rittenhouse’s murder trial is set to begin. It marks the second major legal action against the city and county of Kenosha since the Aug. 25, 2020, riot where Rittenhouse shot three people: Grosskreutz, who lost a chunk of his biceps but survived; Joseph Rosenbaum, 36, and Anthony Huber, 26, who both died.
Rittenhouse, 18, whose trial is set to begin Nov. 1, faces homicide charges in both deaths and an attempted homicide charge for shooting Grosskreutz as well as a charge for being a minor in possession of a firearm. Rittenhouse has pleaded not guilty to all charges and his attorneys are expected to argue that he acted in self-defense.
Family of Anthony Huber, killed by Kyle Rittenhouse, files suit against city of Kenosha
Grosskreutz’s complaint names both the city and county, which oversee their respective law enforcement agencies, as defendants. Kenosha Police Chief Eric Larsen, Kenosha County Sheriff David Beth and former Kenosha police chief Daniel Miskinis are individually named as well. It seeks a jury trial as well as unspecified punitive and compensatory damages.
Attorneys for the municipal agencies did not immediately respond to requests for comment Saturday. Attorney Sam Hill, who is representing Beth, rejected allegations in the lawsuit as false and said in a statement to multiple media outlets he would move to have the complaint thrown out.
The suit focuses heavily on law enforcement’s response in August 2020 when Kenosha had been gripped by protests — and later, riots — in the days after a White Kenosha police officer shot Jacob Blake, a now-30-year-old Black man. Officer Rusten Sheskey shot Blake at least seven times in the back as Blake was getting into his car; three of Blake’s children were present. The shooting damaged Blake’s stomach, kidney and liver, required removal of most of his small intestines and his colon and left him paralyzed from the waist down. The Justice Department recently declined to bring charges against Sheskey.
Grosskreutz was in Kenosha protesting the police response, which included firing tear gas and rubber bullets on demonstrators. The lawsuit contrasts that response with the way police treated White counterprotesters, even when the White protesters were armed.
The complaint opens with words a law enforcement officer spoke to Rittenhouse that night: “We appreciate you guys — we really do.”
“These were the words of Kenosha law enforcement officers — words of encouragement, appreciation, and thanks, spoken to Kyle Rittenhouse and a band of white nationalist vigilantes on the evening of August 25, 2020,” the complaint states.
According to cellphone video of the scene, Rosenbaum and Rittenhouse appear to argue, and Rosenbaum throws a plastic bag at the teen while running after him. An eyewitness said Rittenhouse was pointing his gun toward Rosenbaum and shot him after Rosenbaum tried to lean in and grab the gun.
After Rittenhouse fled the scene, protesters and other bystanders who eventually identify him as the shooter begin to chase him. Huber and Grosskreutz are among those pursuing Rittenhouse, who trips and falls as he tries to run. From the ground, he fires at Huber, who is holding a skateboard, and then shoots Grosskreutz as he approaches.
Grosskreutz told CNN last year that he believes in the right to peacefully protest and bear arms — which he said he did legally, unlike Rittenhouse, who was too young at the time to legally possess a dangerous weapon. Rittenhouse was 17 at the time.
“Nobody should have been hurt or died that night,” he said. “I never fired my weapon that night. I was there to help people, not hurt people.”

Char Char Binks | November 8, 2021 at 8:25 am

Rosenbaum called Rittenhouse “a lowdown Yankee liar”, then Rittenhouse said, “Prove it”.

Maybe the provocation was being out after curfew according to the prosecution spin?
That would mean that “Hero Huber” was provoking an attack simply by being there despite the curfew, not only by trying to bash Mr. Rittenhouse’s brains in with his skateboard.
This is indeed a Hail Mary attempt if they actually want to go down that road. Or rather, it is not even that.
That way madness lies.

    Elzorro in reply to felixrigidus. | November 8, 2021 at 8:44 am

    What needles is Binger trying to thread here. He may be trying to pull a wrongful conviction off on Kyle while at the same time shifting any liability from the city and county on to Kyle, and the judge what is he doing because he knows all about it. This whole trial is tainted with possible conflicts of interest and ulterior motives. A tangled web of money, guns, lawyers and social justice.

the whole “provocation” line of prosecution seems ridiculous on its face–whether you’re armed or not, when some twit threatens your life in the midst of a rather tense environment, a reasonable person would tend to consider the threat seriously–then, when that person (in the company of others) pursues you as you attempt to retreat away from the threat, you’re forced to defend yourself, all the while shouting you’re “friendly, friendly, friendly! ” to no avail

regardless what the PURSUERS were thinking, is not unreasonable to presume that RITTENHOUSE believed he was in imminent danger of serious bodily harm(or worse)

Capsaicin_Addict | November 8, 2021 at 8:58 am

This could’ve been averted with a good ol’ cavalry charge into the rioters, you know.

Yeah I can’t imagine this whole provocation thing going anywhere.

I really hope the judge somehow addresses the high-profile threats to the juror’s lives. It feels like its mistrial time, but the last thing KR needs is to have this whole shit-show rehashed again and again until Binger can get some kind of conviction.

Also, this stupid judge needs to quit being indecisive and rule on the charge regarding him having a gun at 17..

Great legal analysis. Unfortunately, this is a trial where the court and the jury are being actively subjected to massive intimidation and have a justified fear of their lives, the lives of their family and a renewal of the rampant destruction of their community will accompany a just and reasonable verdict of not guilty. That’s the principal factor in this prosecution. The jury should have been sequestered together with a change of venue. The ChiCom agents masquerading as the Obiden administration and the whole panoply of Commiecrats want to prevent Amercians from defending their lives and property from their BLM and ANTIFA militias.

I’d like to take a step back here and point out that this whole thing, from the looting to the arson and Kyle getting dragged into it, was all because the police were NOT DOING THEIR JOBS! If there had been an officer with a loaded AR-15 in front of every business, and every one of the rioters who set things on fire or attacked somebody had been arrested and prosecuted, the riot would have lasted about an hour.

The civilian authorities were afraid, so they made the decision to allow this mess to happen under the excuse of allowing the angry idiots to blow off steam by destroying property and assaulting citizens. They need to be fired and replaced.

    To then prosecute citizens for defending themselves is definitely a “conspiracy to deprive civil rights under color of authority.”

      henrybowman in reply to GWB. | November 8, 2021 at 2:51 pm

      Good luck with that one. It’s a great-sounding law that no federal prosecutor has ever the balls to enforce, and never will. It’s only been enforced against common citizens, never anyone with any “title of nobility.”

With all of this documentation of the law is it any wonder why anyone would put their faith in the jurors to come to the right decision. Their eyes will glaze over and just flip a coin!

in the most basic sense he’s the person whose conduct would likely lead a reasonable person to lose their temper and throw a punch.
IOW, “fighting words”.

Many others were also similarly openly carrying AR-rifles.
But they weren’t under-age, and therefore not unlawful. Hence, only Kyle’s possession was a simple provocation.

turned to see a murderously charging Rosenbaum screaming “F-you!” and diving for control of Kyle’s gun
I could see an argument that he knew what he was doing and planned on executing that running-away-then-turning-in-panic. But it would require a villain who is NOT the baby-faced Kyle, who had only fired the weapon once before. Maybe someone with scars on their face or who wore a duster and black hat.

    henrybowman in reply to GWB. | November 8, 2021 at 2:54 pm

    I keep hearing this claim that he had “only fired the weapon once before.” What’s with that?
    Kyle “owned” an AR of his own. It was at home. The AR he carried that night was borrowed.
    If he had only fired that particular weapon once before, who cares?
    If he had only fired any AR once before, how does someone who owns one manage that? It beggars belief.

civisamericanus | November 8, 2021 at 12:44 pm

If the prosecution needs a Hail Mary, then they have a junk case which is what most of us thought up front.

“Hail Mary” means proving reasonable doubt, which is what the defense needs to do. If the prosecution needs to do it, it moves from “beyond a reasonable doubt” that the prosecution and not the defense is in the wrong, and to “clear and convincing evidence” (rather than beyond a reasonable doubt) that the prosecution is wrong.

No One of Consequence | November 8, 2021 at 4:23 pm

I’m not getting the legal basis for saying a “provoker with intent” can regain the tight to self-defense under subsection (2)(b) by withdrawing, That provision says: “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.” It does not say “unless the privilege is lost under circumstances described by subdivision (2)(c)” or anything similar. There also doesn’t appear to be anything in Wisconsin case law saying (2)(b) doesn’t apply when the right is lost under (2)(c).

And the structure of the statute doesn’t justify it. Just because (c) comes after (b) doesn’t mean (b) doesn’t apply to (c) as well as (a).

Given the fact that the plain language of the statute does not restrict the type of provocation that can be overcome by withdrawing, and there’s no case law saying (2)(b) doesn’t apply to provocation under (2)(c), the assertion that the privilege can’t be regained when the provocation was under (2)(c) just seems wrong. Is there some authority from other jurisdictions interpreting essentially identical statutes that way?

Tomorrow is December 7th. Help me out, people I just got into a fight with a girl about the 7th.

Probably the result of voice-recognition/transcription software, there’s an error in the transcript of the judge’s instructions to the jury on “reasonable doubt.”
Where the transcript says, “…adult which arises merely from sympathy…”,
“adult” should probably be “a doubt.”

Just prior to the main event, Kyle had attempted to move northward across 60th and a newly-established police line as they pressed ‘protesters’ south away from the courthouse on 56th. He was turned back by the police, but that would have taken him back to his compatriots at the northerly car lot at 59th and AWAY from the crowd of people (such as Rosenbaum, Grosskreutz, Huber, and Ziminksi). That would seem odd behavior – going to where there were no threats and behind but in close proximity to a police line – if his goal was to induce an attack.

https://www.youtube.com/watch?v=EEY5aBPNvIg&t=7035s

Coming late to the discussion, and haven’t read all the comments so I don’t know whether someone else has made this point, but in my opinion Mr Branca’s whole discussion about whether Huber et al could have had a reasonable perception of Rittenhouse as an active shooter is besides the point.

I am willing to stipulate, purely for rhetorical purposes, that Huber, Grosskreutz, and drop-kick guy were all genuine heroes. That they both genuinely and reasonably perceived Rittenhouse as an active shooter who had to be stopped, and they heroically threw their own lives away in order to stop him and protect his potential victims. Yay them, give them all medals and throw them a parade.

The fact remains, though, that that perception, however reasonable, was mistaken. And nothing in their perception can affect Rittenhouse’s right to defend himself. No matter how innocent and heroic their reason for attacking him, they were attacking him, and not being a mind-reader he had no reason to believe they didn’t mean to kill or seriously injure him. Just as his actions gave them (in this hypothetical) reasonable grounds to believe him a threat, their actions gave him reasonable grounds to believe the same thing of them.

In the prosecution’s view, had they killed Rittenhouse they would be innocent because of their mistake therefore the same must be true for his killing them because of his (hypothetically) mistaken belief. Call it friendly fire on both sides, and make an Oscar-winning movie about it.

Of course in the real world they had no such perception, reasonable or unreasonable. But I’m arguing in the prosecution’s hypothetical world.

    TrumpWon in reply to Milhouse. | November 9, 2021 at 1:57 pm

    That perception would be objectively unreasonable though, because mass shooters shoot people, they don’t flee from unarmed people. and yell “friendly friendly!” while looking for the police. Gimme a break. That entire claim is a blatant lie fabricated after the fact to justify their own illegal conduct (attempted murder, unlawful CCW, prohibited possessor, etc and so forth – in other words all of the stuff the State has instead charged the only person that DID NOT commit those offenses with.)

Font Resize
Contrast Mode
Send this to a friend