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):
(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.
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.
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:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
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]
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