The Injustice of the Gun Charge Against Kyle Rittenhouse
If the jury gets instructions that accurately reflect the actual statutory language, I think Kyle’s in good shape even on this gun possession charge, Count 6 in the criminal complaint. But “necessity” will not be a defense to this charge.
Welcome to the Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.
I’ve received a lot of inquiries about one of the charges against Kyle Rittenhouse in particular, and that’s the unlawful gun possession by someone under 18 charge—Count 6 in the criminal complaint against him. While it’s merely a misdemeanor, it does appear to be the only one of the charges still pending against Kyle for which there’s reason to believe a fair jury might return a guilty verdict.
Such a verdict, in my professional legal opinion, would be a travesty of justice—and that’s what I’d like to dive into here. Specifically, why the gun charge ought to be dismissed by Judge Schroeder outright, never even considered by the jury, and Kyle no longer subject to the risk of conviction on that count.
For reasons I’ve written on extensively elsewhere, the prosecution of Kyle Rittenhouse has effectively presented no substantive evidence in court that is inconsistent with the legal defense of self-defense—and that in a case where the prosecution bears the burden of disproving self-defense beyond a reasonable doubt. (For my other collected content on Rittenhouse, you can point your browser to http://lawofselfdefense.com/rittenhouse.)
Self-Defense Applies to Kyle’s Most Serious Criminal Charges
The primary legal defense raised by Kyle is self-defense. That legal defense of self-defense is applicable directly to the charge of first-degree intentional homicide of Anthony Huber (Count 3 of the criminal complaint against Rittenhouse, with a mandatory life sentence) and attempted first-degree intentional homicide of Gaige Grosskreutz (Count 4, good for a sentence up to 60 years).
The legal defense of self-defense is also applicable, albeit indirectly, to the charge of first-degree reckless homicide of Joseph Rosenbaum (Count 1, good for 60 years) and first-degree reckless endangering of unknown male “Jump Kick Man” (Count 5, good for 12 years), in that a justified use-of-force against an intended target is by law necessary and reasonable, and therefore not reckless—and both of those men were actively attacking Rittenhouse and therefore presumably intended targets of his use of force.
It’s somewhat more ambiguous—really, I mean fact sensitive—to what extent the legal defense of self-defense covers the charge of first-degree reckless endangering with respect to journalist Richard McGinnis (Count 2, good for 12 years), who was somewhat behind Rosenbaum and arguably endangered by the gunfire that Kyle put into Rosenbaum with his AR-15. Of course, criminal recklessness requires that the risk created be an unjustified risk—a justified risk is not sufficient.
To illustrate, swerving and running over some nuns because you were adjusting your radio would be an unjustified creation of risk. Swerving and running over some nuns because the alternative was running over a bunch of babies in strollers, however, may create the same danger to the nuns, but be considered justified under the circumstances.
Certainly, McGinnis was “downrange” of Kyle’s gunfire when the 17-year-old shot the murderously charging Rosenbaum, and thus in some danger from Kyle’s gunfire. But that’s true in virtually every defensive gun use—there’s almost always somebody “downrange.” Defensive gun uses don’t tend to occur on a square range with a solid and secure backstop.
So, the relevant question in the case of the McGinnis reckless endangerment charge will be whether the risk created towards McGinnis was unjustified, and therefore reckless. It is possible to argue scenarios in which a gun use might qualify as lawful self-defense with respect to the intended target, but also as reckless conduct towards some bystander. The State might argue, for example, that Kyle could have angled the gun in such a way so as to still defend himself without endangering McGinnis, and so the danger to McGinnis was unjustified and criminally reckless.
In fact, I would argue that this is precisely what Kyle did, whether intentionally or not. The evidence I have seen is that the shots to Rosenbaum were fired with the barrel of the rifle angled downward, towards the lunging Rosenbaum, and not with the rifle horizontal to the ground. But now we’re in the realm of fact-finding, and that falls within the province of the jury.
So, to the extent that the State has failed to come even close to disproving self-defense beyond a reasonable doubt, which is its burden, that solidly addresses Count 1 & Counts 3 through 5, and arguably also Count 2 (McGinnis reckless endangerment). These are all the felony charges against Kyle, so that’s a good thing for the defense.
Count 7, the curfew violation charge punishable only by a ticket, was dismissed by the court.
Ambiguous Gun Charge & Treacherous Jury Instructions
That still leaves Kyle, however, with one remaining charge: Count 6, the possession of a dangerous weapon by a person-under-18 charge, under §948.60(a)(2). This is a mere misdemeanor charge and is punishable by up to nine months in jail (presumably lessened by any time served prior to trial).
This gun charge has, indeed, become a sticky wicket, largely because of the alleged ambiguity created by the Wisconsin legislature in drafting that statute, by the failure of the relevant Wisconsin Criminal Jury Instructions to accurately reflect the plain statutory language, and by the fecklessness of the prosecution in this case.
Also, because Kyle’s claim of self-defense, compelling against the felony charges against him, is irrelevant as a defense to this particular misdemeanor charge. There is no self-defense justification for willfully violating a gun possession law. (Some of you may be thinking that an excuse defense of necessity or lesser harms might apply here—it would not, for reasons I’ll explain below.)
The relevant part of §948.60 reads:
(2)(a) (a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.
If that was the only statutory language that applies to Kyle, it’s pretty much an open and shut conviction. He was admittedly under 18, and he was in possession of an AR-15 style rifle, which certainly qualifies under Wisconsin law as a dangerous weapon (“dangerous weapon” means any firearm, per section (1) of that same statute, §948.60).
Indeed, the jury instruction that has been drafted with respect to §948.60(a)(2)—2176 Possession of a Dangerous Weapon by a Child—and specifically reflects this apparent simplicity of construction, defining for the jury the elements that the state must prove beyond a reasonable doubt in order to find guilt:
- The defendant possessed an object.
- The object was a dangerous weapon.
- The defendant had not attained the age of 18 years at the time (he) (she) allegedly possessed a dangerous weapon.
Again, if this is the entire analysis of guilt, Kyle’s would seem a pretty open-and-shut case. He was in possession of an object, the object qualifies as a dangerous weapon, and he had not attained the age of 18 years.
But that is not the entire legal analysis. There is more, and it is found later in that same statute §948.60, in paragraph (3)(c). That section reads in relevant part:
(c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is … not in compliance with ss. 29.304 and 29.593.
So, unless Kyle was “not in compliance” with §29.304 and §29.593, the §948.60 gun possession statute would seem to not apply to him at all—that is, he would be legally exempt from the provisions of §948.60 entirely.
So, what are §29.304 and §29.593?
The second of those, §29.593 sets out the conditions that must be met to be certified to engage in certain hunting activities. With respect to these conditions the State correctly points out that Kyle has not met any of these conditions—and therefore, they argue, Kyle is “not in compliance” with §29.593.
The first defense counter-argument here could be that that §29.593 applies to hunting activities, and Kyle was not engaged in hunting activities, and therefore §29.593 ought not apply to his circumstances at all.
Perhaps a stronger counter-argument, however, is that the plain reading of §948.60(3)(c) says it applies only “if the person is not in compliance with ss. 29.304 and 29.593.” It does not read “ss. 29.304 or 29.593.”
So, even if Kyle can be said to be “not in compliance” with §29.593, was he also “not in compliance” with §29.304?
If we take a closer look at §29.304, we see that it is also a hunting-related statute, but one that involves restrictions on hunting and use of firearms by persons under 16 years of age.
Wait a minute—how can Kyle be “not in compliance” with a statute that applies only to “persons under 16 years of age”? He was, after all, 17 years old at the time of these events.
Well, that’s precisely the position of the defense here. They argue that Kyle is legally exempt from the provisions of §29.304, period, because he falls outside the statute’s age range. And if he’s exempt, he can’t be “not in compliance.”
And if he can’t be “not in compliance with ss. 29.304,” he is exempt from §948.60(a)(2) “unlawful possession of a dangerous weapon because of the requirement of paragraph §948.60(3)(c), which on the facts of this case would require non-compliance with §29.304.
The State’s counter-argument to this plain reading of the statutory language is that, well, the legislature titled §948.60 “Possession of a dangerous weapon by a person under 18,” so they must have meant some application to “persons under 18.” After all, Kyle was admittedly under 18 at the time of these events
We may not understand exactly what the legislature was trying to get at, the State is arguing, but surely they were getting at something—and therefore we should ignore the plain statutory language, and subject Kyle to criminal sanction under this statute.
In effect, the State’s argument here is, pay no attention to the plain reading of the statutory language behind the curtain, because I am the great and powerful ADA Oz! Really, it’s ridiculous—and ridiculous ought have no role in a court of law where criminal sanctions and personal liberty are at stake.
Also, ADA Jim Kraus has engaged in some handwaving to the court, arguing that, “hey, this is just a fact question, and fact questions ought to go to the jury.” Well, it’s true that fact questions ought to go to the jury, so that’s an argument that on its face is always attractive to any trial judge.
Question of Fact versus Question of Law
More importantly, ADA Kraus knows what “go the jury” means—it means the jury gets the Wisconsin Criminal Jury Instruction on §948.60(a)(2). And that jury instruction, WCJI 2176, says not one word about the (3)(c) exceptions to that gun possession statute, makes no reference whatever to §29.304, and if plainly relied on by the jury will certainly result in a conviction that would appear contrary to the plain reading of the relevant statutory language.
In truth, this is not a fact question at all—this is a question of law. And questions of law do not fall within the province of the jury, they fall within the province of the judge.
It is for Judge Schroeder in this case, not the jury, to decide how the law applies to the facts, as those facts are determined by the jury. In this case, the facts on the gun possession are undisputed—it is the law in dispute. And that dispute ought properly to be settled by the judge. Simply giving the jury the standard jury instruction that fails to reflect the actual statutory language would be a judicial travesty and injustice.
Now, trial courts are generally extremely hesitant to stray away from standardized jury instructions, for the perfectly good reason that doing so tends to get their verdicts reversed. That said, it’s also the duty of the trial court to ensure that the instructions given the jury accurately reflect the law to be applied to the facts as the jury finds those facts to have been proven (or disproven).
So, Judge Schroeder is not necessarily locked into the over-simplistic jury instruction of WCJI 2176. In fact, Judge Schroeder made clear that he has actually requested the State and the defense to draft their own versions of jury instructions for that gun possession charge, Count 6, and submit them to the court for review—indeed, this is how jury instructions used to be done routinely, back in the day, before there was wide use of standardized jury instructions.
If the jury gets instructions that accurately reflect the actual statutory language, I think Kyle’s in good shape even on this gun possession charge, Count 6 in the criminal complaint.
If he gets the current standardized jury instructions that fail to accurately reflect the plain language of §948.60, then an unjust misdemeanor conviction on that gun possession charge seems almost certain.
Inapplicability of the Necessity Defense
I also wanted to touch upon the necessity defense, or the doctrine of lesser evils as it’s sometimes called, because I’ve received a lot of inquiries on that, as well.
Can’t it be argued that Kyle’s possession of the rifle, even if unlawful, was a relatively small harm relative to the very large harm had he been unable to defend himself from multiple deadly force attackers?
Perhaps, but that’s not how the necessity defense works, with respect to this gun charge on the facts of this case.
The necessity defense may excuse the violation of a law when doing so is compelled by a necessity of the moment to avoid a greater harm.
So, you physically shove someone very hard—normally a simple battery, subject to criminal sanction. But you did it out of the necessity of moving them out of the path of an oncoming truck. There, the necessity of the moment may excuse your plain simple battery for the purpose of having avoided a much greater harm.
In the case of Kyle, had he been charged by Rosenbaum and suddenly discovered an unfamiliar AR-15 at his feet, snatched it up, and defended himself, that transient possession of the dangerous weapon would have a very viable necessity defense that could be raised.
That’s not what Kyle was doing, however. He was not merely in possession of the rifle transiently and for a compelling necessity of the moment. He was in possession of the rifle the entire time he was in Kenosha, even when not under attack.
The necessity defense applies to a compelling greater interest in the moment—it does not apply to speculative need in the future.
So, on the facts of this case, the necessity defense is of no use as a legal defense against the gun possession charge, Count 6, brought against Kyle.
OK, folks, that’s all I have for you on this topic.
Don’t forget to join us again tomorrow morning at Legal Insurrection for our live coverage of the Kyle Rittenhouse trial, as it enters its eighth day.
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
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Comments
Andrew, does the argument that Kyle provoked Rosenbaum by pointing the gun during the chase open the door to Rosenbaum’s mental state, such that the psych records come in?
To me, psych commitment for suicide + shoot me n***** + charging an armed person = suicide by other not “provoked violence”
Surely a better defence against ‘pointing the gun is provocation’ is that the confrontation had already been initiated by Rosenbaum chasing and charging at Rittenhouse. The initial aggressor had initiated aggression prior to the act claimed to provoke the aggression!
I’ve been wondering about this all week. The gun charge is a statutory construction question, i.e., a question of law, and not for the jury. But witnesses have testified that KR was breaking the law by having the firearm. Lackowski, who otherwise was good for KR, at a minimum testified that KR wasn’t allowed to have the rifle, for which I was surprised there was no objection. Either way, wouldn’t people having testified that KR was breaking the law be prejudicial for the entire trial, especially if the possession charge disappears either through construction at the trial or appeal level?
The problem is that the law was written sloppily enough that either interpretation of it is open. An honest appeals court hearing a challenge to a conviction on this basis would probably overturn the law as being so ambiguous that there is no precise definition of what constitutes a violation of it.
Judge Schroeder has to understand this, and should dismiss the charge to prevent a great deal of unnecessary bother and expense. If the courts aren’t totally politicized and corrupt, Rittenhouse will eventually be exonerated. But no competent (and non-political) DA would ever have prosecuted him at all.
Except that the law was not sloppily written. Judge Schroeder’s issue with the law is that he felt that (3)(c) swallows (2)(a), but he seems not to realize that this is not possible because (3)(c) applies only to rifles and shotguns.
This would all be much simpler if lawyers were able to use brackets and boolean logic 🙂
That is not possible. Law is far from logical in so many cases. There is or was a law on the books in Wyoming that – if enforced – would have well over 95% of the male population in jail, and the remaining awaiting trial for lying to law enforcement.
Besides, the equity and inclusion math people have declared Bool a racist.
Excellent point! Comment of the month!
“Besides, the equity and inclusion math people have declared Bool a racist.”
Where’s the logic of that?
All the way back to the ones who drafted the constitution.
If the law were both ear and concise, then nobody would need a lawyer.
I do not see how a statutes elements can be bifurcated to suit the prosecution. This charge ought to be dismissed.
The judge is supposed to decide the law and the jury decide the facts
However, I am personally ethically and morally bound to reaching a conclusion on the law, ie going through and understanding the statute in the same manner as the judge. As such, I have been struck from a jury panel on more than one occasion. (in voir dure)
Reading your comment I wonder if you are touching on or getting close to an argument for jury nullification; which should be part of the jury instruction but of course will not be. To be clear, reading the law with all its ambiguities and imperfections is a threat to lawyers and judges whose command of language is almost divine and certainly superior to mere mortal subjects of the realm. … But, don’t forget “ignorance of the law is no excuse”.
Watching live yesterday it was clear that the Judge was truly interested in Kyle getting a fair trial. He came very close to dismissing the case with prejudice. And, he took it upon himself to stop the DA from badgering Kyle when his own lawyer did not even object.
So, I am hopeful the Judge will follow the law.
Thank you so much for covering this in such detail. Yes, it should have been dismissed. That it hasn’t makes me concerned for the jury instruction. It’s long been my opinion that the text of the relevant charged statutes should ALWAYS be available to the jury int its/their entirety. Most lawyers I’ve discussed this with disagree believing that it’s the sole purview of the judge to instruct on matters of law. Politicians don’t write laws for lawyers. They write laws for everyone, including jury members, IMO.
Also, the way the state is employing ‘reckless endangerment’ in this case, they could charge every police officer who ever fired his weapon anywhere there was more than one person in the area, including other police officers. This is a horrible practical application of the law.
The defendant should be allowed to rely upon the text of the law. The whole statute and the exceptions written in to the statute. Not the ESP powers of ADA Binger. Attorney Client Privilege, Hearsay, and other rules and statutes have exceptions. Even free Speech has exceptions.
“Politicians don’t write laws for lawyers. They write laws for everyone, including jury members, IMO.”
Indeed.
When you’re walking down the street on your own business, “ignorance of the law is no excuse.”
When you’re in the service of the legal system on a jury, ignorance of the law is enforced upon you.
In what world does this make sense?
Plainly its a drafting error by the legislature – It should be 29.304 “or” 29.593. 29.304 covers people under age 16 hunting, and 29.593 covers requirements for 16-17 year olds (which means that they can hunt on their own with a license).
That said, its also plainly a question of law/statutory construction and the rule of leniency here should favor the defendant.
The judge here has been reversed before, then un-reversed (because he was right in the fist place about the law, in the Mark Jensen case, see here https://www.washingtonpost.com/national/as-kyle-rittenhouse-trial-nears-end-judges-decisions-from-the-bench-come-under-scrutiny/2021/11/10/93cd45c6-3dad-11ec-9ef1-5cd499f0a123_story.html).
So my feeling is he wont be afraid to change the jury instructions, if he feels he needs to.
On the other hand, going armed into a riot is clearly a dumb thing to do. He nearly got killed 3 times at least. If he only gets convicted of that maybe he should be a wee bit thankful.
Agreed but it stays the law UNTIL fixed. So its the law until then 🙂
Clearly going to a riot ARMED was the RIGHT thing to do…considering he nearly got killed 3 times and didnt. If he gets convicted of anything after this abortion then a great wrong will once again have been done.
People like you keep black dotting on people staying home and doing nothing. There is a very good quote that goes something like “for evil to win all that needs to happen is good people do nothing”. Kyle, being a good person, went to offer help where and how he could. As long as there are good people like Kyle around not all is lost.
Also, he removed a pedophile from society. For that he should be knighted! 😉
KR’s desire to “do good”, i.e., help others protect property, offer first aid medical care, put out fires, etc., while admirable and exemplary of the “best in people” was not tempered with the judgement of life experience. He should never have left the safety of being with others. It was clearly folly to put himself in extreme danger by acting alone. … But, that is not what the trial is about.
And, I am yet not confidence that this trial is about “self defense”, as if it were based on all that continues to be confirmed there would not have been a decision to prosecute. Though I believe Attorney Branca is performing a tremendous service for all his readers.
It appears this KR trial is more about government as a religion, tyrannic movement than “of, by and for the People”. The riots were instigated by communist politicians, funded by NGOs (political dark money), supported by orders “handcuffing” police and firefighters, and curfews only applicable to the law abiding.
The idea of applying “laws” to the likes of KR, despite his naivete, offends the “legitimacy” of government at every level in Kenosha and the State of Wisconsin.
To your last comment: KR has set an example of what all “good” men and women are likely going to need do, if the our society, America – The Republic, is not soon restored. We are all going to need kill those who would and have demonstrated a willingness to threaten, harm and kill US in order to impose their will and perversions.
“And, I am yet not confidence that this trial is about “self defense”,”
No, it is about him offering resistance to ANTIFA, BLM, and the American fascist movement. This must not be allowed.
While I do believe Kyle was acting admirably. And has every right to protect himself from deadly harm. The Gun charge for being a minor is definitely on the line legally. Although I don’t “believe” it’s a critical factor. We’re depending on the Legal system to protect Kyle from Mob Justice, and that only works if we stick to the law is the deciding factor. Not what I might “believe”
That being said, I’m a huge proponent of the 2nd Amendment. I believe an armed populace is no more dangerous than any other armed group. And distribution of power keeps the most people safe and secure. But I can’t ignore that lots of people think that the mere act of owning a gun makes you a dangerous person. (Although owning a swimming pool and an automobile is no big deal). These people are a large part of our current society so it important that they see these arguments made. Even if they are not legally relevant.
‘Clearly a drafting error’. Do you have evidence to support that contention? If it were ‘clear’ then there would be ‘clear evidence’ present v a supposition. The fact is legislators across the Nation enact statutes with titles that are misleading and do not actually perform the functions advertised in their title. Sometimes it is a drafting error but many times it is intentional.
I would wager that during the legislative debate both public and private that the various interest groups, lobbyists, gadflys and the legislative members conducted a series of ‘horse trading’ maneuvers. Some members likely traded a vote for a watered down statute here that effectively exempted 17 year olds in exchange for their own vote on an unrelated bill. The legislative sausage making is opaque regarding back room deals that take place off the floor or not in a committee or subcommittee hearing with a transcription. In addition many legislators are attorneys or are veteran members.
They know exactly what they did, IMO. In any event we must operate under the assumption that they actually knew what they voted for in the final draft and did so after availing themselves of staff attorneys, their own experience, the experience and recommendations of fellow legislators and the input of their constituents.
“On the other hand, going armed into a riot is clearly a dumb thing to do. He nearly got killed 3 times at least. If he only gets convicted of that maybe he should be a wee bit thankful.”
When the police in your town stop protecting your lives and property, perhaps you will change your mind.
On the other hand, going armed into a riot is clearly a dumb thing to do. On the contrary, going unarmed into a riot is clearly a dumb thing to do. RIttenhouse is only alive and uninjured today because he was armed.
Exactly if you’re not suppose to carry a gun when in a dangerous area. What is the point of owning a gun for “protection”. I realize people might only own guns, for hunting or sport shooting, but most own a gun for protection reasons.
You have completely invented the idea that the reference to 29.593 is to create a hunting licence requirement for 16-17 year olds. The reason that the statute requires compliance with 29,304 AND 29.593 is that it is possible for 12-16 year olds to rely on the permission to hunt under 29.304 as a basis for the exception under 928.60(3)(c), in which case they would also need to be compliant with 29.593. The plain meaning of the statute is that there does not need to be an connection to hunting for those 16-17 (as is the case for 18+). You are buying into the mistake that the prosecution has made, and that Judge Schroeder appears–unfortunately–to be confused about.
Doesn’t the statute 948.60 refer in section c to the statute governing short barrel rifles? It seems that Rittenhouse was not in violation at all, since he didn’t have a short barrel rifle.
I read it the same way. It should not apply to long barrel guns.
“This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 [short barrelled rifle or shotgun] or is not in compliance with ss. 29.304 [restrictions on hunting by persons under 16] and 29.593 [certificate of accomplishment for hunting license].”
So there are two ways to violate this section. It can be violated by: (1) by going armed with a short-barrelled rifle, or (2) going armed with a rifle violation the hunting restrictions.
The short-barrelled rifle part isn’t a requirement for a violation of the hunting provisions.
Right. The statute is meant to prevent the use of sawed-off shotguns and other short-barreled guns that can be easily concealed.
Not quite right. You cannot qualify for the long gun exception if (1) you are in violation of the rules against short guns at 941.28, or (2) if you are in non-compliance with the exceptions made for possession by those under 16 at 29.304 (which happen to relate to hunting, and may also require compliance with 29,593).
It seems to me that the conduct of ADA Binger toward Kyle was corrupt and unhinged. The failure of the Judge to do anything other than yell at Binger seems like the ADA is destined to get away with his egregious behavior. Would it be worthwhile for the Defense to lodge a formal complaint against Binger with the Bar and/or Judge while the trial is still ongoing? Perhaps try to put the Prosecution on defense?
I suspect we can all be assured that this complaint is forthcoming. However, filing it after the trial is over complicates justice for the defendant much less than filing it during his trial.
from the testimony so far, appears rittenhouse was carrying the weapon for personal defense and the defense of property(the car lot)–those were his intenions–he was not there to threaten anyone(quite the opposite, based on testimony)–he appears(as stated by witnesses/leos present, etc.)to have been behaving responsibly–then he’s assaulted/attacked by at least one armed assailant who clearly meant to harm/kill him–he’s alive and unhurt as a result of having a weapon(that seems indisputable by anyone)and, regardless of some ambiguous statute, is extremely lucky he WAS armed/prepared
And it’s obvious that the State just can’t have that.
Where that is the natural, constitutionally-guaranteed right of every single American.
In rural Wisconsin, deer hunting is a ubiquitous tradition in teenagers and adults. I don’t think there is another state in the U.S. where is it so widespread and entrenched in the local tradition. When I was just 11, in nearby Minnesota, I would often take a shotgun along with me, when I went hunting with friends. I sometimes took it into the rural stores. No one ever thought that out of the ordinary. We were all trained, by the NRA, to handle guns safely. I guess Wisconsin voters wanted the law applied to teenagers in more urban areas, where the intent was crime. In Kyle Rittenhouse’s case, his intent was never crime, so I doubt he violated the intent of what the Wisconsin voters supported.
But, of course, that isn’t how law works.
Law is “one size fits all.”
And when they attempt to get clever and make it otherwise (18 years old? 16 years old? Short-barreled?) they too often screw everybody instead.
I have come to the conclusion that the prosecutors in these cases over charge so they will lose the case. If they win then it shows the system works. If you want to burn the system down over charge and lose to show the system is unjust. This predictably creates rioting and revolution so you can over throw the system.
How was Kyle armed with a “dangerous weapon” as that term is defined in Wisconsin law? Kyle’s rifle barrel was 18 inches or longer. Therefore, Kyle’s rifle is not a dangerous weapon in Wisconsin. Kyle was 17 years old and therefore allowed to carry a rifle. The prosecution’s argument is nonsensical. Charge 6 should have been dismissed.
Not correct. “Dangerous weapon” is defined in 928.60 to include all firearms, which is precisely why 928.60(3)(c) carves out rifles and shotguns. However, if they were completely carved out, six-year-olds could carry. So the carve-out is subject to the same conditions that already apply in the context of hunting (i,e, more restrictive for those under 16, even more restrictive for those under 14, and still more restrictive for those under 12). The carve-out also requires that the rifle or shotgun not be a short gun per 941.28.
“The State’s counter-argument to this plain reading of the statutory language is that, well, the legislature titled §948.60 ‘Possession of a dangerous weapon by a person under 18,” so they must have meant some application to “persons under 18.’ After all, Kyle was admittedly under 18 at the time of these events.”
Oops…. Whatever the legislature may have meant by the title of the section, it’s not part of the law. Like most states, Wisconsin has a statute on the construction of statutes, and Wisconsin’s statute on construction of statutes says:
“Statute titles and history notes. The titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes.”
Wis. Stat. 990.001(6).
https://docs.legis.wisconsin.gov/statutes/statutes/990
BINGO !
Wis. Stat. 990.001(6) sinks the prosecutions argument on Count 6.
I am not a lawyer (in fact I’m an engineer), but to me the law is both clear and logical. As you said, the law is entitled ‘Possession of a dangerous weapon by a person under 18′ and so logically must have some application to persons under 18 (not just under 16). Section 1 of the law defines ‘dangerous weapon to include all firearms (long guns as well as handguns), metal knuckles, nunchaku, throwing stars, etc. The law then makes exceptions for rifles and shotguns. The ban on the possession of all of the other dangerous weapons still applies to everyone under 18.
As the law then allows individuals over 16 to hunt by themselves (using rifles and shotguns) it makes sense that they would be allowed to carry these two specific classes of dangerous weapons. Am I missing something?
You are not missing anything. I have been all over Twitter trying to point out exactly the same thing. The law is perfectly logical, and applies exactly as you describe.
It figures that an engineer would be able to sort this out. (I happen to be a litigator, but I always loved engineering and computer programming.)
That’s very interesting. I’ve never heard of the concept that a statute’s title can sometimes not be considered part of the actual statutory text. I’ve always just assumed that the title of the statute is necessarily and intrinsically part of the statute.
So does the Build Back Better bill actually do that or is it a made for PR title that makes it easier to sell to the public? How about the For the People bill which seeks to strip States of their role in creating and enforcing elections laws in favor of consolidated federal law?
Legislative bodies purposefully do this all the time whether in the title or initial text (- exemption language) to demonstrate that they ‘did something’. They and anyone who pays attention can read the final bill and passed statute and see the bill didn’t do whatever the title and the press release purported to accomplish. It isn’t unusual at all, it’s deliberate.
Unfortunately, the judge seems confused by the this. The answer to that is to READ THE STATUTE.
(2)(a) makes it illegal for those under 18 to possess a ***dangerous weapon***.
(3)(c) says that there are special rules for ***rifles and shotguns***
The fact that the special rules for rifles and shotguns impose no restrictions on those who are 16 and 17 does not make (2)(a) meaningless for 16-17 year olds! They still cannot possess nunchaku, etc.
The statute is neither ambiguous nor confusing if read properly.
From a practical standpoint (as opposed to a legal one) — it is fair/reasonable to expect a person defending himself/herself from an attacker with a firearm to be completely cognizant of every bystander who is in the vicinity, at the time of the attack? I ask because, it would seem that it’s simply asking too much — it’s unreasonable, from a legal standpoint — to demand that the victim defending himself/herself from a violent attack (or, the imminent threat of serious bodily harm) display totally perfect (robot-like) reflexes and awareness, to avoid potential injury to bystander third parties, when his/her primary focus and concentration is properly on escaping from/neutralizing the attacker.
The law simply cannot describe every potential factual scenario that may potentially arise in a self-defense case.
I should clarify, above — “Is it fair/reasonable to expect a person defending himself/herself from an attacker, BY USING a firearm…”
One more point, unlike other states where pattern jury instruction are mandatory and / or drafted by the Court system, Wisconsin’s Jury Instructions, both criminal and civil are drafted by a committee sponsored by the University of Wisconsin. They are not “official” jury instructions. That said, they are generally good and accurate statements of the law. One can even cite them as persuasive authority in legal arguments. However, there is no requirement that a judge use them. He or she can draft de novo all the jury instructions he or she wants in a case as long as they accurately instruct the jury on the law. Most lawyers and judges use the Wisconsin pattern instructions simply because, for the most part, they are accurate and reinventing a prepackaged wheel is not a good use of client and Court resources.
The hunting subsections of the law apply to people whose purpose of bearing arms is hunting. The hunting subsections of the law do not apply to people whose purpose of bearing arms is self-defense. 17 year olds with guns have been defending themselves and our country since colonial times.
Compare and contrast this case with Baldwin that in fact shot and killed someone and not in self-defense. He even today is claiming victimhood while the left calls this kid every name in the book.
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It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
–JAMES MADISON
It does apply to persons under 18. All of the dangerous weapons listed in section 1 of the law other than rifles and shotguns cannot be possessed by persons under 18.
This is well written post and analysis. One item worth noting. In this section:
“The State’s counter-argument to this plain reading of the statutory language is that, well, the legislature titled §948.60 “Possession of a dangerous weapon by a person under 18,” so they must have meant some application to “persons under 18.” After all, Kyle was admittedly under 18 at the time of these events.”
The weakness of this argument is the heading is not part of the statue, and do not reflect the intent of the legislature. The headings are written by the Legislative Reference Bureau.
See Wis. Stat. 990.001(6).
https://docs.legis.wisconsin.gov/statutes/statutes/990/001
The weakness of the argument is far more fundamental than that:
The judge asked the defence, based on the prosecution’s argument, how (2)(a) was not swallowed by the defence’s interpretation of (3)(c). He meant that if the intention was for (3)(c) to permit 16 and 17 years olds to possess rifles and shotguns essentially without restriction, (2)(a) which would have specified 16 rather than 18 as the age limit to carry dangerous weapons.
Did you spot the obvious fallacy?
***(3)(c) applies only to rifles and shotguns, so it cannot swallow (2)(a), which applies to ALL dangerous weapons***
Despite (3)(c), a 17 year old cannot possess nunchaku, for example, by virtue of (2)(a).
***Any argument of interpretation based on the idea that (3)(c) cannot mean what it says because it would swallow (2)(a) is an invalid argument.
Reading through the statute, the only plausible reading of the statute says a 17 can carry a rifle as long as it is not a short barrel rifle.
I live Massachusetts, Here an adult can’t even own, never mind transport a “Semi-automatic rifle with detachable magazines, Pistol grip and adjustable stock” Also no Semi-automatic rifles that can accept a magazine that can hold more than ten rounds.
So you have to think about this case from the perspective of people that support this type of law. Kyle was under 18 and running around with a weapon so dangerous, People in some states can’t even own them.
Now I’m hopping most of the Jury doesn’t fall into that camp. But it makes sense to keep the charge of Possession of a dangerous weapon in there. It helps imply the lack of bios in-favor of the defendant in this case.
No, EVERYONE needs to look at this case from the perspective of the citizens of Wisconsin. If they are fine with 17 year olds openly carrying rifles and reflect that in their laws, it does not matter one whit what people in Massachusetts think.
“Possession of a dangerous weapon by a person under 18”
Since when did the title of a statute have any bearing on its applicability? I would argue, and I don’t understand why the defense doesn’t so argue, that the statute’s title is completely irrelevant. What matters is the statute’s text, which is unambiguous.
In Michigan, there are laws against “carrying” various weapons including knives above a certain length, double edged, so forth. So the jarheads have their Kaybars, the green beanies their Fairbairns, those with too much money have their Gerbers. And the other stuff like throwing stars. Sort of like the Wisconsin laws.
But Michigan prohibits carrying at all ages. If you’re under eighteen, even in WI, you’re probably living at home. How do you possess a…whichever? Do the cops have to prove it’s in your own bureau top drawer, or is it a problem if it’s on the work bench in the basement?
So I’m asking if the WI law really means “owning” or “possessing”, as opposed to carrying in public, hidden or not?
And if the former, is there any stupidity left over some place? Likely not.
Well with regard to knives in Wisconsin, anyone over the age of 18 can carry any sort of knife concealed. The only exception is that a person who is prohibited from possession of a firearm, e.g., a felon, cannot carry a knife that is a weapon concealed. They’d have to carry it openly.
He was under 18, over 16. He was carrying for self-defense purposes, which are not restricted by the law.
He was not in noncompliance with the SBR/NFA section, and he was not in noncompliance with the hunting subsections, which are applicable to hunting purposes.
Wisconsin Supreme Court ruled that even a convicted felon could possess a firearm when acting in self-defense. The problem with KR is that he was possessing the rifle at times when he was not acting in self-defense.