Rittenhouse 1 – Law of Self Defense

Welcome, Law of Self Defense Members, to today’s members-only content!

This will, I’m sure, be a popular post that generates much comment, because of the tremendous media coverage it’s acquired—and that is the Kyle Rittenhouse use of defensive force in Kenosha earlier this week.

You may have heard that Kyle has been charged with murder over these events. For reasons we’ll cover in detail in this analysis, such a criminal charge in this case is outrageously ridiculous given the available evidence and Wisconsin law, and can only be explained away as the increasingly common charging of political expediency. (The complaint against Kyle is embedded at the bottom of this post.)

If it sounds like I’m presuming the end of the novel by labeling Rittenhouse’s use of force as “defensive,” that’s because I’ve done the analysis and already read the “end of the novel.” In this post I will, of course, step through that analysis and all of you can join me on the journey to the end of the novel, as well.

First, the usual caveats.

We do legal analysis here. We don’t do “good judgment.” Just because some conduct is lawful, doesn’t mean it was a good idea. Just because Kyle Rittenhouse may have been legally justified in his use of defensive doesn’t mean it’s a great thing that people died—any person is theoretically capable of redemption, and unfortunately two of the attackers in this case took that option off their own tables. Kyle Rittenhouse would have been better served, personally, if he’d just stayed home or gone on a date, rather than armed up and gone to what was reasonably expected to be a violent environment. That said, poor judgment is not a crime, and criminal conduct is the limit of our legal analysis.

Also, assume every video and image presented here will be graphic, may involve profanity, and so forth. Not much I can do about that, so be forewarned.

Final caveat: everything in my analysis is, obviously, based on the evidence currently available. It is possible that later evidence could develop that would require adjustment of this analysis.

That said, it has been my experience in these politically-energized use-of-force cases that begin with a quick, politically-clamored for arrest on charges as serious as murder, that as further evidence is developed it is invariably evidence consistent with innocence rather than consistent with guilt. This was true of the George Zimmerman case, the Eric Garner case, the Freddie Gray case, the Mike Brown case, the Tamir Rice case, now the Jacob Blake case, and I expect the same will prove true of this Kyle Rittenhouse case, as well.

In any case, all we can work with is the evidence in hand. I’ll also point out arguments and narratives and evidence that are largely irrelevant to the core issue of interest to the Law of Self Defense Community, and that is this:

Was Kyle Rittenhouse’s use of force throughout that evening, to a reasonable degree of legal certainty, lawfully justified as self-defense, based on currently available evidence and in the context of Wisconsin law?

Keep in mind that the prosecution will not merely be tasked with proving that use of force was not likely self-defense, but rather to disprove self-defense beyond a reasonable doubt. That means that if a jury has a reasonable doubt that Kyle’s uses-of-force could have been self-defense, they will be instructed to acquit Kyle of all criminal charges premised on those uses-of-force.

As a preliminary matter, let me address a couple of the narrative threads I’m seeing in social media about this event that are irrelevant to Kyle’s use-of-force that evening. These include the fact that Kyle crossed state lines from IL into WI with the intent to commit a crime, that Kyle might have been below the required age to possess his particular firearm, that Kyle was violating the curfew in place, and similar claimed offenses.

First, there’s literally zero evidence that Kyle crossed state lines with the intent to commit a crime. Even if he had, however, that intended crime would have had to have been a crime of violence in order to be relevant to a self-defense justification, and there is again zero evidence that Kyle crossed state lines with the intent to commit a crime of violence. Indeed, the evidence is contrary to that—Kyle is on video prior to these shootings stating that his intent in being present was the lawful protection of property, not the unlawful use of force upon another person. Indeed, he’s even brought a med kit to help injured people.

For example, there is no evidence of Kyle stating his intention to impose his own legal standards, Punisher/vigilante style, on any other person. By the way, this is precisely the kind of scenario in which a Punisher backplate on your Glock or engraving on your lower receiver or sticker on your car can be extremely damaging, because such would suggest exactly this kind of unlawful extra-judicial state of mind and intent.

Also, it has been learned in the last 24 hours that apparently each of the three people who primarily engaged Kyle with acts of violence is a convicted felon. Normally character evidence is not admissible for the purpose of demonstrating that a person has, in any given instance, acted in conformity with that character, and convictions normally fall into the category of character evidence.

Two major exceptions to this general prohibition on character evidence, however, arise in cases of self-defense.

One exception is if the person claiming self-defense was aware of the other’s character for violence at the time they acted in self-defense. For our purposes I’ll assume that Kyle was not aware of the records of the three men against whom he defended himself.

The second exception, however, does not require that the defender possessed knowledge of the aggressors’ character for violence, and that is if an issue for dispute is who was the initial aggressor in the confrontation. If that is a question raised in a self-defense trial, that the prosecution claims it was the defendant who was the initial aggressor, then the defendant is privileged to introduce into evidence facts regarding the others’ history of violence to suggest that it was actually those others’ who were the initial unlawful physical aggressors.

This second exception requires both that the prior act evidence of those others be of some violent nature (petty theft convictions won’t do), and also that the question of who was the initial aggressor is raised at trial by the prosecutor. If those conditions are met, however, the aggressors’ prior felony convictions or other problematic criminal background may be admissible even if not known to Kyle at the time of his defensive use-of-force.

It is noteworthy in this regard that all of the three men who were subject to defensive force by Kyle have more or less checkered criminal backgrounds, according to news reports. For example:

Joseph Rosenbaum, the man who attacked Kyle in the parking lot, and was shot in the head and killed for his trouble, was reportedly a convicted sex-offender for a sexual offense involving a minor.

Anthony Huber, the man captured on video who attempted to brain a fallen Kyle with a skateboard, reportedly has a criminal history of violence, including charges of batter and repeat domestic abuse.

Gaige Grosskreutz, the man captured on video attempting to shoot Kyle dead, and who suffered a traumatic arm injury when he was instead first shot by Kyle, reportedly has a criminal record of gun crimes.

In contrast, Kyle has no reported criminal history, not even any kind of sealed juvenile records.

Second, even if Kyle is guilty of some gun crime (e.g., underaged possession of a weapon) or curfew violation (a curfew apparently not being enforced against anybody), that purported crime is irrelevant to his self-defense justification for a use-of-force. Perhaps Kyle might be convicted of a gun offense—but that in no way undermines the lawfulness of his use-of-force in self-defense.

The use-of-force legal issues and the gun legal issues (assuming there are any of these), are two completely separate matters. Our interest at Law of Self Defense is, of course, the use-of-force criminal charges and legal defenses, so that’s what we’ll stick to in this legal analysis. I leave the gun law issues to others to analyze and discuss.

Finally, there are the usual apparently completely fabricated, claims that Rittenhouse is some kind of white supremacist. There is, in fact, zero evidence of anything of the kind. Anyone who tosses around such accusations in the absence of actual evidence should be discounted in every material respect.

Two Distinct Use-of-Force Events

There were, arguably, two distinct use-of-force events in which Kyle was involved that evening. The first took place in a parking lot (hereafter “Parking Lot Confrontation”), the second a short time later in the middle of a street (hereafter “Street Confrontation”).

Because some have argued that purportedly unlawful conduct by Kyle in the Parking Lot Confrontation may have justified the use of force against him in the Street Confrontation (and thus made Kyle’s use of force in the Street Confrontation also unlawful), we’ll take each confrontation in turn.

Throughout, it’s important to remember that with respect to each confrontation if Kyle has a prima facie case of self-defense, then the burden shifts to the state to have to disprove self-defense not merely by a majority of the evidence but beyond any reasonable doubt.

Thus our task with respect to each confrontation is to determine whether it appears likely, on the available evidence and in the context of Wisconsin use-of-force law, that the prosecutor will, to a reasonable degree of legal certainty, be likely to disprove Kyle’s claim of self-defense beyond a reasonable doubt.

For both confrontations we’ll apply our usual five elements of self-defense law framework in our analysis. These five elements are: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. Note that these are cumulative—unless legally waived for some reason, all the required elements must be present or the self-defense claim collapses entirely.

That means that in order to successfully defeat a claim of self-defense the prosecution need not disprove every element beyond a reasonable doubt, but only any single required element beyond a reasonable doubt. So that frames the relevant legal question: Assuming Kyle meets his burden of production on self-defense and shifts the burden of persuasion to the prosecutor, is it likely to a reasonable degree of legal certainty that the prosecutor will be able to disprove any one of the elements of self-defense beyond a reasonable doubt, for either confrontation?

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Each of these elements can be found in Wisconsin’s self-defense statute for those who care to take the deeper dive, available here: § 939.48. Self-defense and defense of others. For comprehensive instruction on Wisconsin use-of-force law, including force in defense of self, others, and property, you might consider our Wisconsin Advanced Use-of-Force Law Supplement Course (we have a similar course for each of the 50 states).

Parking Lot Confrontation: Overview

The video available of the parking lot confrontation is very grainy but nevertheless provides considerable relevant evidence for assessing to a reasonable degree of legal certainty whether Kyle is likely to be able to meet his burden of production on self-defense, and also whether a prosecutor is likely to be able to disprove that claim of self-defense beyond a reasonable doubt.

In that video we observe Kyle fleeing from a man pursuing him. The view is momentarily obscured, and then apparently Kyle shoots the man pursuing him in the head, causing a fatal injury. Kyle begins to flee again, then returns to the scene of the shooting. He is briefly on his cell phone (calling 911?), and then begins jogging down the street towards a large number of police vehicles and officers clearly blocking off the street a few blocks down.

Assuming that Kyle intends to concede shooting his pursuer and to justify that shooting as self-defense, before he can raise self-defense as a legal defense he has to meet his burden of production self-defense, meaning there has to exist greater than zero evidence of self-defense.

Innocence

The element of Innocence requires, naturally enough, that the person claiming self-defense was the innocent victim of an unlawful threat or use of force. If the threat or use of force against them was lawful—e.g., in the course of a lawful arrest, or in the course of the other party defending themselves against the person’s own use of unlawful force—then they cannot justify their own use of force as self-defense.

For example, per WI §939.48:

(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.

By necessary implication, this means that if the person claiming self-defense was the initial aggressor in the conflict, the first to use or threaten force, then that use of force was itself unlawful, and cannot be justified as self-defense. Instead, they must have been defending themselves from the other person’s unlawful use of force.

So, the question for us in the context of the element of Innocence is whether the evidence indicates that it was Kyle who was the aggressor or provoker in this confrontation, in which case he loses the element of Innocence and loses self-defense, or whether it was his pursuer who was the aggressor or provoker in this confrontation, in which case Kyle retains the element of Innocence.

The video of the Parking Lot Confrontation shows Kyle fleeing, and the other man pursuing. It also shows men with what appear to be large sticks or clubs (common Antifa weapons) to be apparently moving to flank Kyle’s position. The man pursuing Kyle is also hurling at least one object at Kyle, clearly an act of physical aggression.

Further, the man in question appears to be the same man actively and aggressively seeking to provoke a deadly force confrontation shortly before this Parking Lot Confrontation, the provocation directed at a group of which Kyle is believed to be a member (and thus Kyle would have knowledge of this provocation).

Here’s video of that earlier provocative conduct by the pursuing man, seen here as the bald, shortish man in the maroon T-shirt demanding, “Shoot me, n******. Shoot me, n******.” (profanity warning, use of N-word):

Under WI law, that provocation conduct alone by the pursuing man would be sufficient to strip that man of any justification for his threats and use of force against Kyle.

For example, per WI §939.48(2)(c):

(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.

Note that under WI law, while someone who is an initial aggressor may regain their innocence by withdrawing from the fight and communication their desire to cease fighting (see §939.48(2)(b):

(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.

Note that the term “provoker” as used in (2)(b) is distinguished from the concept of “provoker with intent” as used in paragraph (2)(c) above, which is why each is addressed in a separate paragraph. Paragraph (2)(c) specifically refers to a someone who provokes with the intent of using the provoked attack as an excuse for their own deadly force response. Paragraph (2)(b)’s reference to “provoker” lacks this “intent” component, and is more properly understood as an “initial aggressor.”

A provoker without intent, as described in paragraph (2)(b), in effect a mere initial aggressor, can regain their element of Innocence by withdrawal and communication, per that withdrawal and communication language in (2)(b).

A provoker with intent under (2)(c), however, cannot regain their innocence by withdrawal and communication—as evidence by the absence of any such withdrawal and communication language in paragraph (2)(c).

A provoker with intent, as the aggressor in the Parking Lot Confrontation clearly was immediately prior to the Parking Lot Confrontation, based on the video shared above, owns that fight, period. There is no regaining Innocence for them.

The only exception to the above is, perhaps, where a non-deadly force provoker finds themselves faced with an unlawful deadly force response (e.g., they shove someone, provoking the fight, but the other person responds with a knife), but then only if they have “exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.”

For example, per WI §939.48(2)(a):

(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, 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, 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.

In this Parking Lot Confrontation the very act of pursuit by the aggressor contradicts any reasonable effort to escape or avoid harm, so they would fail to qualify for justification of their threat of force against Kyle under this provision, as well.

In summary, in the Parking Lot Confrontation it is clear that it is the fleeing Kyle who is the innocent victim of the pursuer pursuit and initial aggression (throwing of objects).

Further, this inference of Innocence on Kyle’s part is further buttressed by his immediate movement towards, not away, from law enforcement officers further down the street. Indeed, the second attack against which Kyle was obliged to defend himself occurred while he was jogging towards the police. There was, therefore, no attempted unlawful flight for purposes of avoiding accountability for his use of force in the Parking Lot Confrontation.

Collectively, all of this is greater than zero evidence of Kyle as the innocent victim of an attack by his provoking attacker, thus meeting his burden of production on Innocence and shifting the burden of proof on Innocence to the prosecution to disprove Innocence beyond a reasonable doubt.

In order to disprove Kyle’s element of Innocence beyond a reasonable doubt, the prosecution would need at the very least to present some evidence that Kyle was the initial physical aggressor in the confrontation—the first to use or threaten force—or that Kyle engaged in conduct likely to provoke an attack up on him.

To my knowledge there is no such evidence, indeed the clear evidence of Kyle’s flight from his pursuer is inconsistent with Kyle having been the aggressor, and therefore there is no likelihood, to a reasonable degree of legal certainty, that the prosecution can disprove the element of Innocence beyond a reasonable doubt.

Parking Lot Confrontation/Innocence: Checked for Kyle.

Imminence

The element of imminence asks whether the defender was facing a threat about to immediately occur or one that is actually in progress. It is intended to exclude from justification the use of force against threats that might have been real but are now in the past, as well as those that are future speculative threats that may never actually arise.

For example, per WI § 939.48 in the context of deadly defensive force, which is the force relevant in this case (emphasis added):

(1) … The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

A good conceptual framework for assessing whether a threat is imminent is the AOJ framework: Ability, Opportunity, Jeopardy. In this case the pursuer clearly had the ability to cause Kyle harm (the degree of that harm we’ll discuss under the next element of Proportionality below), that the pursuer had the opportunity to bring that ability to bear (he closed on Kyle), and that his conduct was consistent with someone intending to bring his ability and opportunity to bear against Kyle (the pursuit, hurling of objects, closing into contact). With AOJ satisfied, the conditions for an imminent threat have been met.

In any case, in this case the attack upon Kyle by his pursuer, at the very least the combination of the throwing of objects and ongoing pursuit, is actually taking place, so there can really be no reasonable question the threat is imminent. This is not a case of Kyle using defensive force “because the guy might have pursued and attacked me” or “because the guy pursued and attacked me yesterday”—the pursuit and attack were actually taking place at the time Kyle used defensive force.

This is greater than zero evidence of Kyle as an actually imminent attack in the Parking Lot Confrontation, thus meeting his burden of production on Imminence and shifting the burden of proof on Imminence to the prosecution to disprove Imminence beyond a reasonable doubt.

In order to disprove Kyle’s element of Imminence beyond a reasonable doubt, the prosecution would need at the very least to present some evidence that Kyle was not facing an imminent threat—one immediately about to happen or actually taking place.

To my knowledge there is no evidence inconsistent with Kyle facing an imminent threat, and therefore there is no likelihood, to a reasonable degree of legal certainty, that the prosecution can disprove the element of Imminence beyond a reasonable doubt.

Parking Lot Confrontation/Imminence: Checked for Kyle.

Proportionality

This element asks whether the threat facing Kyle was of a deadly force nature or merely non-deadly in nature. Only if Kyle reasonably perceived he was facing a deadly force threat would he be privileged to use deadly defensive force.

For example, per WI § 939.48 (emphasis added):

(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference 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 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 believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Importantly, a deadly force attack is one that readily threatens not only death, but also includes an attack that threatens serious bodily injury. A blow to the head by a heavy, thrown object would be an example of an attack likely to cause, if not death, then certainly a traumatic brain injury, which obviously would qualify as serious bodily injury and therefore deadly force.

Also importantly, it is the reasonable perception of a deadly force threat, not an actual deadly force threat, that is controlling. If, for example, the pursuer threw an apparent brick that was actually a sponge, and therefore not actually a serious threat of physical harm, at Kyle, but the sponge was reasonably perceived by Kyle as an actual brick, Kyle would be legally privileged to defend as if it were an actual brick (and therefore a deadly force attack). This means that what is controlling is not what was actually thrown at Kyle by his pursuer, but what Kyle might reasonably perceive as the threat presented by the thrown object.

This perception also takes into consideration all the surrounding circumstances of the event, which includes violent riots in which even police officers are routinely pelted with stones, bricks, and frozen bottles of water, all objects that when thrown are readily capable of causing serious bodily injury and this constitute deadly force.

Kyle would therefore have a reasonable basis to infer that the object thrown by the man pursuing him, the man who shortly before had been attempting to provoke deadly force violence, was of a nature likely to cause serious bodily injury, and thus constituted a deadly force attack.

Further, and especially in the context of this aggressor having shortly before been aggressively seeking to provoke a deadly force confrontation, any physical attack on a man known to be armed with a gun is arguably a deadly force attack. The attacker knows, after all, that there is a gun in the fight. Even if the gun happens at the initiation of the attack to be in the hands of the defender, the attacker clearly believes they can overcome that defense, presumably by means of seizing control of the defender’s gun. In that case the attacker has picked up a gun no less than if he’d lifted it from his own waistband. And that is a deadly force attack.

In addition, all this is true even if the attacker never intends to seize control of the defender’s gun—what’s controlling is whether the defender would have a reasonable perception that the attacker was seeking to do so. It’s hard to imagine how a defender armed with a long gun being attacked under these circumstances would not reasonably infer that the attacker, at least, believed he was readily capable of overcoming the defender’s deadly force defense.

This is greater than zero evidence of Kyle reasonably perceiving a deadly force attack in the Parking Lot Confrontation, which in turn satisfies the threshold for the use of deadly defensive force, thus meeting his burden of production on Proportionality and shifting the burden of proof on Proportionality to the prosecution to disprove Proportionality beyond a reasonable doubt.

In order to disprove Kyle’s element of Proportionality beyond a reasonable doubt, the prosecution would need at the very least to present some evidence that Kyle lacked a reasonable perception that his attacker in the Parking Lot Confrontation was not presenting a deadly force attack.

In the context of the earlier deadly force provocation by the pursuer, the overall violence by rioters (of which his pursuer was a member) that had ravaged the scene for days, the sustained pursuit to contact by the attacker, the hurling of objects by the attacker during the pursuit, and the physical attack upon a defender known to be armed with a long gun, there is no probability that the prosecution will be able to disprove beyond a reasonable doubt that Kyle had a reasonable perception of a deadly force threat.

Parking Lot Confrontation/Proportionality: Checked for Kyle.

Avoidance

The element of avoidance has to do with whether there exists a legal duty to retreat before a defender can use force in self-defense. Wisconsin is among the minority of states (about 14) that imposes a generalized legal duty to retreat before deadly defensive force can be used, if safe retreat is practically possible.

In this instance, of course, deadly defensive force is precisely what Kyle used, so he is subject to Wisconsin’s generalized legal duty to retreat.

I’ll note in passing that Wisconsin does provide for exceptions to its generalized legal duty to retreat, as do all duty-to-retreat states. In Wisconsin’s case that generalized legal duty to retreat is lifted—indeed, the court may not even consider the issue of retreat—in the context of defending against a forcible and unlawful intruder into highly defensible property.

For example, per WI §939.48(ar):

(ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:

[lists highly-defensible property conditions]

Those exceptions re: highly-defensible property, however, do not apply to this case.

So, bottom line, on the facts of this case Kyle had a legal duty to retreat, if safely possible before resorting to deadly defensive force, and if he violated that legal duty he loses the element of Avoidance and therefore loses self-defense.

In the context of the Parking Lot Confrontation, however, the evidence is overwhelming that Kyle was speedily fleeing from his pursuing attacker. Note that he was doing so even though it was apparently not completely safe, given that his pursuer ultimately closed to contact and attacked Kyle. Given the absence of a safe means of retreat, arguably the legal duty would not apply. Regardless, Kyle was clearly in flight while being pursued and attacked, and flight is the very definition of retreat. Kyle has thus clearly satisfied his legal duty to retreat.

Given the video evidence this on is not even a judgment call, there is no probability that the prosecution will be able to disprove beyond a reasonable doubt that Kyle satisfied his legal duty to attempt retreat, if safely possible, before using deadly force in self-defense.

Parking Lot Confrontation/Avoidance: Checked for Kyle.

Reasonableness

Reasonableness can be thought of as a kind of umbrella element that sits over all the others. Everything the defender perceives, decides, and does in the context of using force must be the perceptions, decisions, and actions of a reasonable person. The element of reasonableness is typically found throughout any state’s self-defense justification:

For example, per WI § 939.48 (emphasis added):

(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference 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 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 believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

This frequency of mention indicates the importance and weight that self-defense law places on this element of Reasonableness.

Note, again, that’s what is required here is reasonableness, not perfection. A defender is permitted to act against a reasonably apparent threat. If the perception of that threat is later found to be mistaken, that mistake is perfectly acceptable so long as it is a reasonable mistake. (Recall our earlier discussion about the brick-like sponge.)

Reasonableness is assessed from both a subjective and objective perspective.

First, did the defender have a genuine, good faith, subjective belief in the need to act in self-defense against his attacker? All Kyle would have to do to satisfy this requirement in the context of the facts of this case around the Parking Lot Confrontation is make a statement to that effect—”I genuinely believed I had to act in self-defense against my pursuing, object-hurling, closing to contact attacker in that parking lot.” For purposes of this discussion I think we can safely assume that in advancing his claim of self-defense Kyle is prepared to make such a statement.

Second, was the defender’s subjective belief one that would be shared by a reasonable and prudent person, or was it an irrational belief lacking supporting evidence? Clearly that’s not an issue in this case, because there is plenty of evidence—the earlier deadly force provocation, the sustained pursuit, the hurled objects, the advancing to contact on a defender known to be armed—to support an objectively reasonable belief in the need to act in self-defense.

Given the video and photographic evidence, this one is not even a judgment call, there is no probability that the prosecution will be able to disprove beyond a reasonable doubt that Kyle possessed both a genuine, good faith, subjective belief in the need to act in self-defense against his attacker, as well as that Kyle’s perception was objectively reasonable.

Parking Lot Confrontation/Reasonableness: Checked for Kyle.

Parking Lot Confrontation: Conclusion

As detailed above, I conclude to a reasonable degree of legal certainty, based on the currently available evidence and applicable Wisconsin law in the context of the Parking Lot Confrontation, that Kyle will have no difficulty meeting his burden of production on each and every element of self-defense thereby shifting the burden of persuasion to the prosecution to disprove self-defense beyond a reasonable doubt.

Further, I conclude to a reasonable degree of legal certainty, based on the currently available evidence and applicable Wisconsin law, that the prosecution will not be able to meet its burden to successfully disprove beyond a reasonable doubt any one of the elements of Kyle’s claim of self-defense in the context of the Parking Lot Confrontation.

Accordingly, to a reasonable degree of legal certainty, Kyle’s use of deadly defensive force in the Parking Lot Confrontation is justified as lawful self-defense under WI § 939.48, and therefore without any criminal liability whatever.

Shorter: Kyle’s killing of his pursuer in that parking lot was justified and not a crime.

Street Confrontation: Parking Lot Confrontation Irrelevant

Before we dive into the Street Confrontation, it is important to now address the narrative that the use of force against Kyle as he jogged down the street may have been justified in some manner—for example, as part of a citizen’s arrest—based on the claim that Kyle’s use of force in the earlier Parking Lot Confrontation was itself unlawful. That is, if Kyle’s shooting of his attacker in the Parking Lot Confrontation was technically murder, then arguably it was justified for the other men to pursue and attack Kyle as he jogged down the street.

We can, however, discard that narrative, having just stepped through our detailed legal analysis that concluded, to a reasonable degree of legal certainty, based on the available evidence and Wisconsin law, that Kyle’s use of deadly defensive force in the Parking Lot Confrontation was lawful self-defense.

As a result, in the absence of any earlier unlawful conduct by Kyle, we can conduct our legal analysis of the Street Confrontation on its own merits. So, let’s dive into that now.

Street Confrontation: Overview

The various videos and photos of the Street Confrontation are relatively consistent with each other. In general they show Kyle jogging down the street, from the scene of the Parking Lot Confrontation to the line of police vehicles and officers blocking across the street a block or two down the road.

As Kyle jogs down the street towards the law enforcement officers he is pursued by an angry mob shouting verbal threats. Several of the pursuing mob appear to strike at Kyle, until ultimately he stumbles and falls to the ground, where he is immediately subject to a jumping stomp kick, the first in a continuing series of deadly force attacks.

First, there are numerous attackers and a single defender, which alone can turn what would otherwise be a non-deadly force attack into a deadly force attack (one readily capable of causing at least serious bodily injury).

This is particularly the case where the attackers are on their feet and highly mobile and have knocked Kyle to the ground where he is far less mobile and less able to defend himself from circling attacks from above and around him.

Second, and even aside from the disparity of numbers, even if we pretend that there were only a single attacker, the nature of the force directed against Kyle was clearly deadly in nature, again meaning readily capable of causing death or serious bodily injury.

For example, we have one attacker attempt to strike Kyle in the head with a skateboard, clearly a deadly instrument when used in the fashion, no less than if a baseball bat had been used to strike Kyle in the head:

We also have an attacker throwing full body kicks at Kyle’s again, perhaps the same person who launched the initial jumping stomping attack on Kyle, clearly a deadly force attack for the same reasons as cited for the skateboard attack:

We also know that at least one attacker had a pistol in hand, apparently a Glock, and a handgun used in an offensive manner is deadly force as a matter of law. Here you can see the pistol in this attacker’s hand as he first approaches Kyle, while Kyle is still fending off an attack from a different aggressor (the red circle on the right):

In the next two photos you see the gun still in the attacker’s hand even after Kyle has fired his final shot in self-defense into that gun-armed attackers arm:

Incidentally, it has been reported that this particular attacker was a previously convicted felon, therefore already a person prohibited from possessing a firearm, and thus in the process of committing a felony entirely independent from his deadly force (pistol) attack upon Kyle.

In any case, as these successive waves of deadly force attacks come at Kyle, he begins deliberately firing his long gun at each of the attackers in turn, to defend against their deadly force attacks upon him.

He fires the first round to defend against the jumping stomp attack initially launched when he first hits the street, at the person launching that stomping attack, even as other attackers are closing in on him:

Kyle’s second shot is fired as the stomper is still above him, and as the attacker using the skateboard as a deadly instrument closes in from another direction:

Kyle’s third round is fired as the skateboard attacker attempts to brain him with that deadly instrument:

Kyle’s fourth round is fired as he manages to sit up somewhat and observes another attacker pointing a handgun at him (it was this round that would cause the arm injury shown above):

At that point the threats appear to have cleared away from Kyle, stops firing, regains his feet, and once again begins moving towards the line of law enforcement officers down the street, placing himself in their custody.

When I say that Kyle’s shots were fired deliberately, I mean that in the sense of the timing of the shots. For context, be aware that competitive shooters frequently fire shots as rapidly as every 0.2 seconds.

If we imagine the first shot fired at T = 0.0 seconds, here is the timing of each shot:

First shot: T = 0.0 seconds

Second shot: T = 0.6 seconds

Third shot: T = 1.9 seconds

Fourth shot: T = 2.9 seconds

If we round up the total duration, from first shot to fourth, to 3.0 seconds, in that same period of time a competitive shooter of ordinary skill could have potentially fired at least 15 rounds. Had Kyle fired at that rate, the firing would indeed have looked indiscriminate, panicked, unreasonable, and almost certainly unlawful.

Fortunately for Kyle, and his expected claim of self-defense, he did nothing of the sort. He fired at about 1/10^th that competition pace, on average, and only fired at reasonably apparent attackers as they were attacking, then immediately ceased firing once the apparent threat was no longer imminent. (Members of the Law of Self Defense Community will have no trouble distinguishing this from the Michael Dunn case in Florida some years ago.)

Here is one of the more widely distributed videos of the pursuing deadly-force attack upon Kyle in the Street Confrontation as he appears to seek the safety of the police line down the street:

So, taking this Street Confrontation on its own merits for purposes of legal analysis, independent of the Parking Lot Confrontation, for the reasons already discussed, let’s step through our five elements of self-defense framework: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.

(Note: In the interests of conciseness I won’t repeat all the statutory language already cited above—you know where to find it).

Innocence

Again now for purposes of this second confrontation, the question for us in the context of the element of Innocence is whether the evidence indicates that it was Kyle who was the aggressor or provoker in this confrontation. If so he loses the element of Innocence and loses self-defense. Alternatively, was it his pursuers and attackers who were the aggressors or provoked in this confrontation, in which case Kyle retains the element of Innocence.

Remember, our analysis is exclusive of the earlier Parking Lot Confrontation, which has already been discarded as any possible justification for the use of force upon Kyle in the street, so the use of force upon Kyle in the street must stand on its own merits.

This is really a pretty easy call, because the evidence is overwhelming that it was the men pursuing Kyle down the street, striking him until he fell to the asphalt, and then immediately launching a swift series of deadly force attacks upon him, who were the initial physical aggressors in the Street Confrontation. Kyle is literally in flight from his pursuers and towards the line of law enforcement officers down the street. It is hard to imagine a clearer image of a non-aggressor in the context of this Street Confrontation.

Further, while Kyle was running for the apparent safety of the law enforcement officers down the street, he was not engaging in threatening conduct towards anyone until he was attacked by his pursuers. Thus his pursuers, absent any such initial threat by Kyle towards them, could have no self-defense or defense of others justification for their use of deadly force towards Kyle.

The pursuing attackers also could have had no legal justification for a use of deadly force in attempting to effect a deadly force citizen’s arrest of Kyle, because a deadly force citizen’s arrest can only be justified when arresting a person who as actually committed a felony or who is imminently a threat to innocent persons. But as already discussed, Kyle’s earlier shooting the Parking Lot Confrontation was legally justified, and so not a felony, and when Kyle was attacked in the Street Confrontation he was not presenting any kind of threat to innocent persons.

Thus the force used by the pursuing attackers against Kyle was unlawful force, triggering his legal privilege to use defensive force against those unlawful attacks (assuming the other elements of self-defense are also satisfied, and as we shall see they were).

Collectively, all of this is greater than zero evidence of Kyle as the innocent victim of an attack by his pursuing attackers, thus meeting his burden of production on Innocence and shifting the burden of proof on Innocence to the prosecution to disprove Innocence beyond a reasonable doubt.

In order to disprove Kyle’s element of Innocence beyond a reasonable doubt, the prosecution would need at the very least to present some evidence that Kyle was the initial physical aggressor in this Street Confrontation—the first to use or threaten force—or that Kyle engaged in conduct likely to provoke an attack up on him.

Street Confrontation/Innocence: Checked for Kyle.

Imminence

Again, the element of imminence asks whether the defender was facing a threat about to immediately occur or one that is actually in progress. It is intended to exclude from justification the use of force against threats that might have been real but are now in the past, as well as those that are future speculative threats that may never actually arise.

In the context of the Street Confrontation, Kyle is using no force whatever until he is on the ground and subject to immediately deadly force attack by multiple aggressors. There is no question about whether or not the attack might not yet be imminent, because the attack is actually in progress. An attack in progress always meets the conditions of an imminent attack.

Note also that Kyle immediately stopped using defensive force as soon as the threats against him were no longer imminent.

This is greater than zero evidence of Kyle as an actually imminent attack in the Street Confrontation, thus meeting his burden of production on Imminence and shifting the burden of proof on Imminence to the prosecution to disprove Imminence beyond a reasonable doubt.

Street Confrontation/Imminence: Checked for Kyle.

Proportionality

We’ve really already discussed this issue above. The disparity of numbers of attackers, the disadvantageous position of having been knocked to the ground while his attackers circle and attack from above, the stomping attack, the full body kick to the head, the skateboard to the head, and particularly the handgun presented by the final aggressor, are all uses of force readily capable of causing death or serious bodily injury.

They therefore all qualify as uses of deadly force, against which deadly defensive force would be warranted.

This is greater than zero evidence of Kyle reasonably perceiving a deadly force attack in the Street Confrontation, which in turn satisfies the threshold for the use of deadly defensive force, thus meeting his burden of production on Proportionality and shifting the burden of proof on Proportionality to the prosecution to disprove Proportionality beyond a reasonable doubt.

In order to disprove Kyle’s element of Proportionality beyond a reasonable doubt, the prosecution would need at the very least to present some evidence that Kyle lacked a reasonable perception that his attacker in the Street Confrontation were not presenting a deadly force attack.

In the context of the disparity of numbers and the nature of the attacks, as already described twice above, there is no probability that the prosecution will be able to disprove beyond a reasonable doubt that Kyle had a reasonable perception of a deadly force threat.

Street Confrontation/Proportionality: Checked for Kyle.

Avoidance

In the case of the Street Confrontation, of course, Kyle was in actual flight from his pursuers when he was knocked to the ground, attacked there, and defended himself. During his defensive use of force he was continually on the ground while under attack by numerous assailants all around him—in those circumstances, avoidance was not practically possible, and therefore not legally required.

Importantly, once Kyle was able to regain his feet and the ongoing attacks had ceased, he immediately again fled from his pursuers and towards the law enforcement officers down the street. In other words, the moment that safe retreat was once again possible, Kyle immediately began again to take advantage of that safe avenue of retreat rather than continue to use defensive deadly force.

This is greater than zero evidence of Kyle satisfied his legal duty to attempt avoidance whenever a safe avenue of retreat was apparently available to him. This meets his burden of production on Avoidance, shifting the burden of proof on Avoidance to the prosecution to disprove Avoidance beyond a reasonable doubt.

In order to disprove Kyle’s element of Avoidance beyond a reasonable doubt, the prosecution would need at the very least to present some evidence that Kyle failed to take advantage of a safe avenue of retreat, when such retreat was practical, rather than use deadly defensive force.

In the context of every use of deadly defensive force by Kyle in the Street Confrontation being made while he was on his back on the ground while being attacked with deadly force, there is literally zero evidence that Kyle ever failed to satisfy his legal duty to retreat when safely possible.

As a result there is no probability that the prosecution will be able to disprove beyond a reasonable doubt that Kyle satisfied his legal duty to attempt retreat, if safely possible, before using deadly force in self-defense.

Street Confrontation/Avoidance: Checked for Kyle.

Reasonableness

Reasonableness is assessed from both a subjective and objective perspective.

First, did the defender have a genuine, good faith, subjective belief in the need to act in self-defense against his attacker? All Kyle would have to do to satisfy this requirement in the context of the facts of this case around the Street Confrontation is make a statement to that effect—”I genuinely believed I had to act in self-defense against my pursuing and multiple attackers.” For purposes of this discussion I think we can safely assume that in advancing his claim of self-defense Kyle is prepared to make such a statement.

Second, was the defender’s subjective belief one that would be shared by a reasonable and prudent person, or was it an irrational belief lacking supporting evidence? Clearly that’s not an issue in this case, because there is plenty of evidence, as already cited, to support an objectively reasonable belief in the need to act in self-defense.

Street Confrontation/Reasonableness: Checked for Kyle.

Street Confrontation: Conclusion

As detailed above, I conclude to a reasonable degree of legal certainty, based on the currently available evidence and applicable Wisconsin law in the context of the Street Confrontation, that Kyle will have no difficulty meeting his burden of production on each and every element of self-defense, thereby shifting the burden of persuasion to the prosecution to disprove self-defense beyond a reasonable doubt.

Accordingly, to a reasonable degree of legal certainty, Kyle’s use of deadly defensive force in the Street Confrontation is justified as lawful self-defense under WI § 939.48, and therefore without any criminal liability whatever.

Shorter: Kyle’s killing of the attacker who sought to brain him with the skateboard, his maiming of the attacker who sought to shoot him with a pistol, and his other two shots fired while under attack that might otherwise be claimed to be some form of reckless endangerment, were all perfectly justified acts of deadly force self-defense, and not crimes.

Conclusion

Kyle Rittenhouse’s use of deadly defensive force in killing his attacker in the Parking Lot Confrontation and in killing one attacker and maiming another in the Street Confrontation was collectively, and to a reasonable degree of legal certainty, lawful uses of deadly defensive force, justified self-defense, and not criminal conduct.

Indeed, each and every one of the persons against whom Kyle defended himself was themselves committing felony aggravated assaults upon him. Two of those deadly force attackers are, of course dead, having been foiled in their efforts to murder a 17-year-old boy, and are therefore beyond the reach of earthly justice.

The man who attempted to murder Kyle with his pistol and got a maimed arm in the process, however, ought in any fair world to be charged with attempted murder, prosecuted, tried, and (assuming a sane and rational jury) convicted of that charge and sentenced to prison for the rest of his life. At least he’ll have a cool scar going in.

As promised, here’s a copy of the complaint filed against Kyle:

OK, folks, that’s all I have for you today on this matter—given we’re at almost 8,500 hundred words, I hope that’s enough!

Indeed, what you’ve read here can be understood as a “back of the paper napkin” and much abridged version of the much more comprehensive expert legal opinion that we routinely provide in our legal consultations, typically at a cost of thousands of dollars—and which any of you who are Platinum Protection Program members would receive from us, at no additional cost, from us in the unhappy event that you are involved in a use-of-force confrontation. If you’re not familiar with our Platinum Protection Program, check out the additional information below.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Platinum Protection Program

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