Rittenhouse: Can Kyle Avoid Being Sued Under WI Self-Defense Immunity Law?
Likely that civil suits around Kyle’s lawful shootings will remain focused on city of Kenosha
Kyle Rittenhouse has been acquitted of all the criminal charges against him, the only possible verdict consistent with justice in a case with this evidence and law. Having been acquitted in criminal court, he is now free of any possible criminal liability for his actions in lawfully defending himself on August 25, 2020.
Now, however, there remains the possibility that he might be sued in a civil suit, either by survivor Gaige Grosskreutz for the vaporization of his bicep when Kyle shot him in self-defense, or by the families of Joseph Rosenbaum or Anthony Huber in wrongful death actions for Kyle’s killing of those two men, again in self-defense.
In particular, I’m getting a lot of inquiries as to whether Kyle Rittenhouse might find protection from any such civil suits under Wisconsin’s self-defense immunity statute. So, that will be the focus of today’s content.
There are certainly lawsuits that are flying around this case, but I believe they are entirely focused on seeking compensation from the government of Kenosha, largely on the legal premise that the authorities had constructively, if not formally, deputized the men present with AR rifles and therefore is responsible for their conduct.
It’s not much of a legal argument, but I guess you work with what you’ve got.
In any case, I’m unaware of any civil suits filed against Kyle—but such suits certainly could be filed, so I’m getting a lot of inquiries as to how the civic court dynamics might play out here, and whether Kyle might avail himself of the state’s self-defense immunity statute.
Self-Defense Immunity: Minimize Cost, Time, Risk
Self-defense immunity is best thought of as a way to arrive at a determination of privileged use of force in self-defense in a relatively cost-effective and timely pre-trial hearing and possibly avoiding the tremendous cost and risk of a full-blown trial.
Absent self-defense immunity, a full-blown trial is the only way to combat a prosecutor intent on bringing you to trial on a use-of-force charge. He brings you to trial on a criminal charge based on your underlying use of force—murder or manslaughter, for example, if you’ve shot somebody dead—and you raise the legal defense at trial of self-defense—sure, I shot him dead, but I meet all the conditions required for lawful self-defense (or, more accurately, the state can’t disprove any of those conditions beyond a reasonable doubt), and therefore the killing is legally justified (or privileged, as Wisconsin prefers to put it).
This traditional way of combating a charge of unlawful use-of-force can work, as we’ve just seen in the case of Kyle Rittenhouse, and have seen in many other cases, including that of George Zimmerman.
But a full-blown trial is an incredibly costly and time-consuming affair—and risky.
In terms of cost, a case involving a killing charge—as both Rittenhouse and Zimmerman’s did—can easily burn through $200,000 before it even gets to trial, just in pre-trial expenses. Then the trial can readily be a multiple of that cost. I’m reliably informed that the Zimmerman defense billed out at close to $2 million.
In terms of time, it’s not unusual for a case involving a killing charge to take a year or a year-and-half to get from event to trial, and then perhaps consume more weeks at trial. During all this time the defendant’s life is essentially frozen—one does not make too many long-term plans when there’s a decent prospect you might be spending the rest of your life in a cage.
And, of course, there’s risk. I often tell the clients in the cases I consult on that anyone we put in front of a jury has perhaps a 10% chance of being convicted, no matter how innocent they may be. That’s just the “noise” in the system and a reflection of the reality that juries are dangerous and unpredictable creatures.
Nearly all of that cost, time, and risk of a full-blown trial can be side-stepped through the wonders of self-defense immunity.
Self-Defense Immunity Pre-Trial Hearing
How self-defense immunity works in practice is that a person facing a criminal or civil trial based on their use of force can demand a pre-trial self-defense immunity hearing.
Note: These are very often mistakenly referred to as a “Stand-Your-Ground hearing.” Any time you hear that phrase spoken you can be fairly certain the speaker has no idea what they are talking about, and what is really being heard is not stand-your-ground but self-defense immunity. There’s no such thing as a hearing to determine stand-your-ground. There may be a hearing to determine self-defense immunity.”
So, the person facing the legal liability for a use of force event demands a pre-trial self-defense immunity hearing. There is no jury at this hearing, as no jury is selected until the trial, and we’re still pre-trial. Instead, we have a kind of “mini-trial” at this hearing where the defense will argue their narrative of self-defense, the state will argue against self-defense, and the judge will act as both judge and as finder of fact (the role taken by a jury at a trial).
In this “mini-trial” the defense has the burden to prove self-defense by a preponderance (majority) of the evidence to the satisfaction of the hearing judge (who is usually the same judge who will be the trial judge, should things go to trial). If they convince the hearing judge that they’ve met their burden, the judge grants immunity from criminal prosecution and/or civil suit.
I should mention that the burden and threshold for self-defense immunity do vary among the states—I’ve described the most common arrangement. In Florida, for example, the state must disprove self-defense by clear and convincing evidence in order to defeat a motion for self-defense immunity.
I mention that the judge would award immunity for criminal and/or civil liability because which of those forms of immunity is available varies by state. Some states, like Florida, allow for both criminal and civil immunity to be granted at a self-defense immunity hearing. Other states allow for criminal immunity—immunity from criminal prosecution—but not civil immunity—so, no immunity from civil suits. And other states do the reverse and provide for civil immunity but not criminal immunity.
Indeed, while Wisconsin law does provide for self-defense immunity, it does so only in the civil context, and not in the criminal context. So, a defender can demand that pre-trial hearing, successfully argue self-defense, and be granted immunity from a civil suit—but that does nothing to immunize them against criminal prosecution.
Of course, Kyle Rittenhouse was just acquitted, so under the doctrine of double jeopardy he’s already “immune” from criminal prosecution—all he needs now is civil immunity. So I guess he’ll be taking advantage of the Wisconsin self-defense immunity doctrine for civil liability, right?
Wisconsin Immunity Is Wrapped Within Its Legal Presumption
Unfortunately, the self-defense immunity process I described above, with the mini-trial and so forth, isn’t available as unconditionally in Wisconsin as it is in other states. Instead, Wisconsin wraps its self-defense immunity privilege in a blanket of completely unrelated self-defense law doctrine—the doctrine of a legal presumption of reasonableness in the use of force in the context of an intruder into highly-defensible property.
So, let me explain how these legal presumption laws work in the context of highly-defensible property. Many states have a special law that creates a legal presumption that a defender of highly defensible property against a forcible and unlawful intruder into that property had at the time a reasonable fear of imminent deadly force harm.
This essentially gives that defender every one of the legal elements needed to justify his use of deadly force on the intruder—the only element not presumed is the element of Innocence, and that one’s kind of baked into the cake if a homeowner is facing off against an intruder.
What counts as highly defensible property for purposes of this legal presumption law varies by state—the home is always included, and many states also include one’s occupied vehicle and one’s business. Wisconsin’s definition of highly defensible property includes all three—home, occupied vehicle, business.
So, if you’re defending your home, occupied vehicle, business against a forcible and unlawful intruder, and also meet a few other conditions, and also avoid a few specific exclusions, you get the benefit of being legally presumed to be privileged to use deadly defensive force.
So, now we have two different legal doctrines we’re working with. Self-defense immunity, on the one hand, and legal presumptions of reasonableness, on the other hand. Some states have one, some states have the other, and some states have both.
Wisconsin has both. But rather than keeping these two doctrines separate, as every other state with both does, Wisconsin buries its civil self-defense immunity privilege into the conditions for its legal presumption of reasonableness statute.
That means that all the circumstances, conditions, and exclusions of the Wisconsin legal presumption law now also apply in the context of qualifying for Wisconsin’s civil self-defense immunity.
In other words, you only qualify to even request pre-trial civil self-defense immunity hearing in the first place if your use of force occurred in the context of defending your home, occupied vehicle, or business from a forcible and unlawful intruder.
Unfortunately for Kyle, none of his use-of-force the night of August 25, 2020, involved him defending his home, occupied vehicle, or business from a forcible and unlawful intruder—so he doesn’t even qualify to request a pre-trial civil self-defense immunity hearing in the first place, and so would never even have the opportunity to argue for immunity at all.
No Self-Defense Immunity for Kyle: But It’s Not ALL Bad News
Bottom line: No self-defense immunity possibility exists for Kyle as a means to protect himself against possible civil suits in this case.
That’s the bad news.
The good news is that I don’t think any such civil suits have been filed against Kyle by either survivor Gaige Grosskreutz or the families of Anthony Huber or Joseph Rosenbaum—and I’m not sure I would expect there to be.
The arguments for civil liability would be substantially less compelling than the argument for criminal liability, if only because the criminal prosecution was able to kind of link each use-of-force event together through a series of criminal charges specific to each involved “victim.” In the civil case each of those events would essentially be considered in isolation—and each on its own merits looks wildly like lawful self-defense.
Of course, it’s also true that at the criminal trial the State had the burden to disprove self-defense beyond a reasonable doubt, whereas in civil court the plaintiff only has to disprove self-defense by a preponderance (majority) of the evidence., a much lower threshold than the state had.
At the same time, of course, Kyle arguably has a counter-suit opportunity against at least Grosskreutz—not sure how that works in the context of a wrongful death suit brought by the family of Huber or Rosenbaum, but of course their own aggressive conduct in those fights would mitigate civil liability in any case. I don’t expect Kyle to initiate a suit, but I would expect a counter-suit to be filed in response if any civil suit is filed against Kyle first.
It’s my expectation that the civil suits in this case will continue to focus on the government of the city of Kenosha, and its various agencies, particularly the police. The central argument here appears to be that the city in effect deputized the people, like Kyle, walking around armed with ARs, and so the city should be responsible for damages that result.
It’s not a great argument, really, but it has a couple of things going for it.
First, the city has deep pockets, so plenty of money.
Second, it’s OPM—other people’s money. Meaning, the politicians who might pay to settle any of these suits are not reaching into their own pockets for the payoff, they are reaching into the pockets of Kenosha taxpayers.
Third, politicians love the option of spending other people’s money to make their own political and legal problems go away.
So, it wouldn’t surprise me in the least if the city of Kenosha agreed to rather lavish settlements with Grosskreutz or the families of Huber and Rosenbaum—it’s what governmental agencies who find themselves in these circumstances tend to do.
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
Law of Self Defense Platinum Protection Program
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Considering that Kyle acted in self defense, what to sue about?
As Mr. Branca indicates, they’d sue for wrongful death. Think of the Goldman family suits against OJ Simpson, wherein they proved to the court’s satisfaction that OJ had wrongfully caused the death of their son.
That said, I agree with Mr. Branca that it is far more likely for the city to be sued. They have money and Kyle doesn’t. And cities tend to just settle out of court to avoid a trial.
It would be interesting to see how a trial would go, though. While the city was certainly negligent in permitting the riots to happen, Rosenbaum et al were the who came to Kenosha to riot.
The difference in the OJ trial is quite stark. The civil court found him essentially guilty of murder. There’s no question at all that Kyle ended lives but there’s not much chance of successfully suing for that because their own actions are implicitly deemed culpable in their own deaths from criminal trial. He can only be sued for negligence, which would only be possible if he was negligent with the rifle when shooting them. I think he did quite the opposite actually and there’s demonstrable proof in target selection and restraint against less dangerous targets.
Cities in Wisconsin generally have immunity that limits claims to $50,000, unless waived by the City. Most often, cities do to the extent they purchase private insurance. Doesn’t seem like the City is the one with deep pockets here.
Perhaps their insurance company (if they have private insurance) would be.
The suit would claim that he didn’t act in self defense. Just because the state couldn’t prove beyond reasonable doubt that he didn’t act in self defense, doesn’t mean a civil plaintiff couldn’t prove it on the balance of probability.
Suppose a majority of the jurors were to announce that they thought the state had in fact proved that he was probably guity, and they acquitted him only because there was still some reasonable doubt. Suppose also that he had some money, or applicable insurance. In that case you could almost guarantee that there would be a civil suit, and that he would very likely lose it.
Of course in this case that is not so, and that’s why Mr Branca says a suit is unlikely.
You can always try a wrongful death suit. Doesn’t mean you going to win.
Sending a couple of unrepentant felony-level reprobates to the hereafter because they tried to kill a young man acting in self-defense is not wrongful death.
Grosskreutz should be grateful he’s not dead or, minimally not in jail for possessing a weapon and attempted murder, shows the feckless bias of the DA. Where’s their effort to arrest “Jump Kick Man”, another paid anarchist walking around free?
“The only thing necessary for the triumph of evil is for good men to do nothing.”
Indeed. “Jump kick man” was clearly guilty of aggravated assault, but like Grosskreutz he gets a pass for his crimes because had he been charged successful prosecution of Rittenhouse would have been almost impossible.
I would think a nice counter suit for emotional distress would be pretty good.
“First, the city has deep pockets, so plenty of money.
Second, it’s OPM—other people’s money. Meaning, the politicians who might pay to settle any of these suits are not reaching into their own pockets for the payoff, they are reaching into the pockets of Kenosha taxpayers.
Third, politicians love the option of spending other people’s money to make their own political and legal problems go away.”
Yup. Things would be a lot different though if the money had to be paid for in part by reduced salaries and benefits for any politician involved in such matters. Suddenly defund the police becomes a lot less appealing and greater spending on proper training of officers a lot more appealing! That and perhaps more focus and thought put into making laws a lot more clear and understandable, vagueness being a real enemy of politicians under such circumstances.
Would not the acquittal by a reasonable doubt mean that the so called victims are precluded by res judicata and collateral estoppel/issue preclusion from having any recovery against Rittenhouse in a civil proceeding where the evidentiary standard is a preponderance of the evidence ? I can’t see any attorney commencing an action on behalf of the two so called victims-what pecuniary loss would have been sustained by any family member of these two less than stellar members of society?
>>”…are precluded by res judicata and collateral estoppel/issue preclusion from having any recovery against Rittenhouse in a civil proceeding where the evidentiary standard is a preponderance of the evidence ?”
First, as a matter of evidentiary logic, a failure to prove something by the higher standard (e.g. 97%) does not preclude the possibility that it might be “proven” by the lower standard (51%). Obviously, if the evidence demonstrated a 65% probability of ‘guilt’, for example, that would fail the criminal burden of proof, but meet the civil burden of proof.
Second, with very rare exceptions, collateral estoppel only precludes actual litigants (i.e., parties) who have lost the prior proceeding. The individual attackers were not parties to the criminal proceeding, and thus they are not “bound” by the State’s loss.
On the issue of pecuniary loss, the claim would be filed by the Estate of the deceased, so it would pick up the damage associated with the loss of life and future livelihood of the deceased.
That said, you have your finger on one of the key reasons such suits are unlikely, in my opinion. The Estate is stuck with the character, actions and life of the deceased. What attorney wants to sue on behalf of Rosenbaum? Who wants to undergo the cross-examination of Rosenbaum’s life that will demonstrate that the child rapist had very little left to lose?
The other two assailants are slightly better plaintiffs, but the evidence of their assault on Rittenhouse is also much cleaner. Huber is on film hitting Rittenhouse in the head. That’s a summary judgment of self-defense, given that Huber won’t be contesting the facts with a personal affidavit. The sole survivor (who has the smallest dollar value claim) is under oath admitting that he pointed his illegal Glock at Rittenhouse before the shot was fired. That’s a terrible case to take from a plaintiff’s attorney’s standpoint.
So what plaintiff’s attorney takes one of these cases in the hope of winning a judgment that won’t be worth anything unless Rittenhouse comes into money in the future?
They wouldn’t get anything even if Rittenhouse did come into money (assuming he didn’t get a nice chunk of cash for his Fox interview). He’s young and disposing of these judgements with a bankruptcy filing wouldn’t be all that disruptive, not like it would be if he were 35 with a family, mortgage, and a bunch of credit lines. More likely, if civil suits are contemplated, is that they instead wait to see if he gets any money from media interviews and if any is left over from the money raised for his defense.
They are suing not the city but the insurance company the city has. In this situation the company makes the call on the sebbledent. The normal MO of these companies is to pay go away money to the perps. This way they look good to all the policy holding municipalities. Kyle has no insurance and no assets to speak of. Suing Kyle might even hurt their go away case with the insurance company. Kyle could fight it and enjoy discovery where the city insurance will just pay em’ off.
The broader policy and loss implications of paying out on a “failure to protect” claim suggest (to me) that no settlement is likely. There’s no logical end to how many checks you’re going to pay if municipalities are liable for police ‘failure to protect.’ Note the defense and decision for the school district and sheriff in the Parkland case as an example.
Municipal defendants at least in NYC subscribe to the “millions for defense, and not a cent for tribute” theory of defense unless they are clearly liable. If a municipal defendant is insured as opposed to paying settlements out of its own pocket, then the question of settlements is determined by the insurance company
My question is: is there a failure to protect suit even viable. The reason I ask is because the city has a protective service, it’s called the police. However, the Supreme Court ruled that the police are not under no obligation to protect. So, where is the case. I’m not a lawyer, and I don’t even play one on TV. So I don’t know the answer.
Could happen that way but IMO it will be up to the number crunchers at the insurance company. Dollars and cents.
The question about Kyle and whether he is immune in Wisconsin is above my low low pay grade. I wonder though if he is ‘law suit proof’ due to lack of assets and his protection under bankruptcy law. Right now what asset does he have for them to collect?
“vaporization of his bicep” Bicep is not the singular of biceps–biceps is.
if we want to get that technical, it’s biceps brachii as there’s a biceps femoris in the hamstrings of the leg.
Thank you. Seeing “bicep” grates on me, but I’ve been sitting on the objection because there have been so many better things to discuss. There is no such word.
And yes, there are four biceps, one on each arm and each thigh. But the word without qualification usually refers to the upper ones. When referring to the lower biceps one usually specifies that.
While the expense of the civil suit may be great, there is a possibility that it would be covered by home owner’s insurance. While homeowner’s policies won’t pay for any judgment from an intentional shooting, many do have a provision which would pay for the defense is a case where self-defense is raised. If this were the case, you’d have a defense funded by an insurer but a plaintiff on a contingency fee against a probably uncollectible judgment.
Offsetting both is the fact that most of the pretrial discovery would already be done by simply having the record and exhibits in the criminal case.
Wisconsin is a Castle Doctrine state, but not a Stand Your Ground state.
With the castle doctrine law in WI, as I understand it (I’m not a lawyer), you have no duty to retreat while in your home (or from your vehicle while you occupy it), but *do* have a duty to retreat otherwise.
You also may not be sued civilly if you take part in a justified shooting that is due to using said “castle doctrine” (in your home, for instance).
Rittenhouse was not at home, or in his vehicle, he can be sued even though he was found to be acting legally.
SYG doesn’t apply either way as Kyle didn’t do so…he attempted to flee in all instances of shooting an attacker.
Right, I’m just explaining the way the law seems to be structured here in WI.
If he were in his home or vehicle, he could NOT be sued civilly. But since he wasn’t, he could be.
The part about stand your ground was just to explain the oddity with WI law being castle doctrine but NOT SYG, because a lot of people seem to get that confused.
As I understand it, WI is a stand-your-ground state, sort of. WI law does not impose a duty to retreat (except in the case of provocation). But a jury is entitled to consider whether the defendant could have retreated as part of its analysis of whether the force used in defense was reasonable.
There will be no lawsuits. Once a lawsuit is filed, the parties will be disposed, and the past histories of the assailants will come out. Poof.
I know the twitterverse is all but certain KR will be sued into civil oblivion but I can’t wrap my head around what duty of care you owe to anyone perpetrating a violent felony upon you. Both Rosenbaum and Huber were committing or attempting to commit variants of robbery when shot.
That would be the very question the plaintiffs would be putting to the jury. They would deny that those two were committing or attempting robbery.
If there is a line of people hoping to get uncontested money from the city (if the city is just going to give money to make these suits go away) should or could Kyle Rittenhouse also get some uncontested money.?
Mr. Rittenhouse likely has no true legal basis for a payout from the city, but he has as much basis is these others to appear to be suing the city.
“At the same time, of course, Kyle arguably has a counter-suit opportunity against at least Grosskreutz…”
Yes. I think Rittenhouse should fire the first shot (metaphorically speaking) against convicted felon Grosskreutz for illegally possessing a firearm and threatening Rittenhouse with the weapon that night.
But more to the point, Mr. Branca, why hasn’t convicted felon Grosskreutz been charged with any crimes related to his rioting rampage – including illegal possession of a firearm – that night in Kenosha?
I guess that would require an honest prosecutor who gives a damn about facts and the law….
This is the kind of situation that tends to make a layman like myself think the law is little more than a racket. The idea that someone can chase you down and try to put a bullet in your head, and then sue you because you manage to stop him from doing so…just kinda makes a fellow wonder.
Take a look at Katko v. Briney where a burglar who tripped a trap gun when burglarizing a (uninhabited) house sued and won damages from the owners for injuries he received while committing his unlawful act.
Well, it is possible that Kenosha politicians collude with Grosskreutz to shake down the taxpayers.
Of course, if that happens Grosskreutz would have assets that would best be used to pay Kyle Rittenhouse’s legal fees, therapy, and other costs (especially protection from the leftist mob).
If the mayor can think that far ahead the city might consider not just paying in a collusive lawsuit of the antifa-medic.
If Grosskreutz can sue the city of Kenosha for creating, allowing, or otherwise contributing to the circumstances that led to him being shot, then doesn’t that mean that Mr Rittenhouse can sue the city of Kenosha for creating, allowing, or otherwise contributing to the circumstances that led to him being the victim of multiple instances of assault and battery?
That’s exactly what I’ve been wondering too
They couldn’t settle with Grosskreutz before the trial, that would have the stink of a payoff for a witness. Since Grosskreutz didn’t deliver the goods (a conviction), I can see them refusing to settle, which also has the stink of a payoff.