Rittenhouse “Analysis”: A Contemptible Example of Intellectual Theft and Broken Self-Defense Legal Analysis from Harvard Law School

Well, Harvard Law School has certainly fallen quite some ways.

A recent article purportedly authored by one Ronald Sullivan, Professor at Harvard Law School (see featured image) sets forth to provide a legal analysis claiming that both the Kyle Rittenhouse and George Zimmerman cases ought to be deemed outside the boundaries of lawful self-defense.  If you’ve got the stomach for it, you can find at least one version of Professor Sullivan’s article here:  “Rittenhouse Verdict Flies in the Face of Legal Standards for Self-Defense”

I left a comment at that site, but comments require approval, and I rather expect that mine will not be approved. For the record then, here is the comment I left for Professor Sullivan’s attention:

That’s a Harvard Law School Professor in 2021 for you, I guess.

First, Professor Ronald Sullivan lifts this “5 Elements of Self-Defense Law” legal analysis framework wholesale from my own work, without any attribution whatever–honest people call that intellectual theft, Professor Sullivan. Shame on you, sir. I make no effort to limit the use of my intellectual work by others, but a simple note of acknowledgment keeps such use from being outright thievery. Is this the state of Harvard Law School academia in 2021? Harvard University has always been liberal in my lifetime, but when I attended at least it didn’t advocate the wholesale theft of the intellectual work of others.

And no, merely re-ordering the sequence of the elements does not mitigate the intellectual theft.  How childish.

Second, Professor Sullivan is then unable to properly and competently apply the “5 Elements of Self Defense Law” analysis he so dishonestly stole from me. The element of Innocence, the doctrine of being the non-aggressor, refers to not being the first person who uses or threatens to use physical force. It does not mean a person who merely follows another without threatening or using physical force. It does not mean a person who is lawfully armed without threatening or using physical force.

Third, Professor Sullivan then compounds his mistaken understanding of simple, if stolen, legal concepts by plugging falsehoods into his “analysis.” Professor Sullivan wrote the following in his “analysis”:

“Despite being told by the 911 operator to remain in his car until officers arrived, Zimmerman instead confronted Martin.”

That never happened. Ever. Not once. It’s an outright and demonstrable falsehood. Anyone who bothers to listen to the few minutes of 911 recording that is the ONLY conversation between the 911 operator and Zimmerman will be unable to identify any moment in that recording when the dispatcher told Zimmerman to remain in his car. Anyone using such a demonstrable falsehood to conduct a legal analysis of events of national interest is simply incompetent to the task.

I’m happy to wager $1,000 on the issue, payable to a worthy cause of the winner’s choice–my choice, by the way, will be to divide the sum between Kyle and George. With something other than simple professional honor and reputation at stake, however, I expect the good Professor will prudently decline the wager.

Fair warning, Professor:  same, though lesser, wager put television personality Sunny Hostin, herself a purported lawyer, $100 in my debt–my wagers were smaller a decade age. And no, she’s never made good on her debt.

In total, this article is a contemptible piece of work on every level and would be so from anyone claiming expertise on the concepts, the events, or the facts themselves. To have such garbage spewed by a purported Professor from Harvard Law School simply compounds the stench.

No offense.

Best regards,

Attorney Andrew F. Branca
Law of Self Defense LLC

And I guess that’s all I have to say about that, except, in the interests of avoiding misunderstanding–I attended Harvard University for my graduate studies in life sciences–molecular biology, virology, immunology, epidemiology, and so forth–and not for law.  I received my Juris Doctor degree from Hofstra University School of Law.

Until next time:


You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!


Attorney Andrew F. Branca
Law of Self Defense LLC

Law of Self Defense Platinum Protection Program

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15 thoughts on “Rittenhouse “Analysis”: A Contemptible Example of Intellectual Theft and Broken Self-Defense Legal Analysis from Harvard Law School”

    1. Attorney Andrew Branca

      Not a chance, I’m too busy doing actual work–I have a costly German motorcycle habit to maintain.

      I just want the shameful conduct of Professor Sullivan noted for the record.

  1. So when are you and I partnering in an above-board, all-legal as in I’ll never cut fingers off or kneecap anyone collection bureau to collect all the unpaid bets from leftists… 🙂

  2. Preping the new battlespace is local laws changing the way self defense works so those holding the levers of power can attribute other things to the case that have nothing to do with the case and facts at hand. A watering down of traditional self defense laws to allow justice departments to prosecute and punish whom they want to.
    Case in point… https://www.bbc.com/news/world-us-canada-59348734
    And a legal analysis from Harvard, surely you can’t reproach a HARVARD law professor! (smh)

  3. I would agree the Professor doesn’t know much about the five elements of self defense.

    “First, the use of force must be proportionate to the force employed by the aggressor.” This element is plain error. The force used in self defense must be “necessary to defend” and must not be grossly disproportionate to the injury that you reasonably apprehend suffering if you do not use force to prevent it.

    “Second, the use of self-defense is limited to imminent harm.” This is plain error. You have the right to defend yourself from a present harm as well as from an imminent harm.
    “The threat by the aggressor must be immediate.” Can’t argue with that.

    “Third, the person’s assessment of whether he is in imminent danger of death or serious bodily injury must be reasonable.” Can’t argue with that,

    “Fourth, the law does not permit a first aggressor to benefit from a self-defense justification.” This is plain error. The law allows an initial aggressor who has the legal right to be the initial aggressor in the encounter to defend himself from an unlawful use of force in response to his own lawful aggression. The law also allows an unlawful non-deadly force initial aggressor to defend himself if he withdraws from the encounter and effectively communicates his withdrawl and is then attacked with unlawful force, and the law also allows an initial unlawful non-deadly force aggressor to defend himself from an unlawful use of deadly force without withdrawl and communication.

    “Finally, a person has a duty to retreat before using deadly force, as long as it can be done safely.” This is plain error. The only person the law imposes a duty to retreat on before using deadly force in necessary self defense is the initial unlawful deadly force aggressor.

  4. “It remains unclear whether a fight ensued, who was the aggressor and whether Zimmerman had injuries consistent with his claims of being beaten up by Martin.”

    Correct me if I’m wrong, but as the jury found him innocent by reason of self defense, wouldn’t that mean as the finder of fact, they settled the argument? The jury ultimately decided Trayvon started the fight and Zimmerman was injured to a degree lethal defense was warranted.

    I’m perusing through his analysis but as a layman, I’m not feeling it.

    1. Although the constitution presumes everyone is innocent until proven guilty beyond a reasonable doubt, the jury doesn’t find anybody “innocent.” The jury simply finds the prosecution has not met its burden of introducing sufficient evidence to prove the defendant guilty beyond a reasonable doubt to their satisfaction, so they return a verdict of “not guilty.” Not the same thing as finding the defendant was proven innocent beyond a reasonable doubt. It only means there was enough evidence of innocence that the jury wasn’t 100% sure of guilt. So if you were a leftwing liberal racist you could say: “It remains unclear whether a fight ensued, who was the aggressor and whether Zimmerman had injuries consistent with his claims of being beaten up by Martin.” What is clear though is that Zimmerman was found “not guilty.”

  5. Also, he voted.SYG as a factor in the Zimmerman verdict. I may be wrong, but I recall Zimmerman waved his right to a SYG hearing and the judge did not include SYG verbiage in the case. As I recall, it was argued entirely on the merits of self defense without SYG provisions.

    He’s repeating the 5 rules, SYG, and Castle doctrine we’re all familiar with but doing so poorly compared to AB et al. This is understandable as some lawyers parse info poorly compared to others. What is less understandable is his citation of a case where he gets material facts wrong. That seems like a bar a man of his stature should be able to hurdle.

    1. Like most people he doesn’t understand that the right to stand your ground and the duty to retreat is determined as of the point in time that you use defensive force, and not before or after you use defensive force. So at the point in time that Zimmerman pulled the trigger he had no duty to retreat because retreat was impossible. and stand your ground is an antonym for duty to retreat, so he had a right to stand his ground. What some people call a SYG hearing has nothing to do with stand your ground law, it is a self defense immunity hearing that is incorrectly called a SYG hearing. Kimd of like calling a magazine a clip.

  6. Andrew: You frequently say that self-defense law is not rocket science. Maybe not. But by the same token, I think you underestimate the difficulty even highly educated people have thinking clearly and logically about these sometimes controversial legal concepts. I realize this Harvard Law professor used your 5-rule framework without attribution and that is no doubt annoying. And yet, this fellow, prestigious Harvard Law professor he may be, used YOUR framework, probably because it is such an effective device for understanding the topic. I have heard you say on multiple occasions that law schools do not typically spend much time teaching self-defense law or reviewing self-defense cases. Apparently, even a Harvard Law professor can get this far without ever having had to learn much about it. Admittedly, the article is disappointing, but for some parts of it, I think your positive influence came through. His article was better than it would have been had he never encountered your site or looked at what you publish on your blog. You are doing fine work educating people and getting the word out, even if some of the folks who are influenced by the Branca framework for self-defense legal analysis can’t bring themselves to admit it.

    BTW: If they don’t publish your response, you should consider drafting a different sort of reply to this fellow. Let him know that you appreciate his use of your 5-element legal framework, and invite all those who are interested in learning more about it should visit the Law of Self-Defense site.

    1. David makes a good point Andrew. You have become the number one expert on use of force law in this country and you have made this law accessible to anyone who can obtain a copy of your book. It is like your five elements have become the “Xerox” machine of self-defense law.

      I think it is almost impossible to discuss use of force intelligently and yet in a simple and understandable manner without using your five elements.

      That does not however forgive the lack of attribution. I think many of us who have taken your instructor class use the elements but (I hope) we all point out who created it. I also urge people to buy your book and point them to your website for further information.

  7. Andrew,
    Solid, well-argued response to a lying, thieving scoundrel who, in a more just world, would be liable to a horsewhipping. I wouldn’t let any of my children attend an Ivy under any circumstances. These days, they are nothing but leftist indoctrination centers deserving of complete contempt. They are coasting on past glories and I suspect a lot of their students are fully aware of that fact. I know a great many employers are certainly aware of it. I have read comments from many who have said that an Ivy resume goes straight into the circular file. They aren’t willing to deal with the arrogance and entitled attitude.

    I would have made only one change. I would delete the “no offense” comment because I damned well intended to be offensive and wouldn’t deny it. I probably would have included this Thomas Sowell quote as well, “In every disaster throughout American history, there always seems to be a man from Harvard in the middle of it.”

  8. Andrew,
    During 35 years in “higher” education, I encountered more than a few instances similar to this. Too many people believe intellectual dishonesty includes only unacknowledged direct quotation from another’s work, so they re-order words or lists, rephrase key passages, and then claim that what they’re doing is their own original “interpretation” or “application” of the other persons idea. But of course intellectual dishonesty includes theft of ideas as well as words, no matter how they are interpreted or applied.
    It happened to me several times. My response was always to contact the author directly first, point out the questionable use of my work, and ask that they correct future versions of theirs and publish a correction in an appropriate venue (e.g., the journal that published their work). I also asked the author to respond to me within a month, indicating the steps they’d taken. If (when?) that did not happen, I sent letters with supporting documentation to the author’s department chair, dean, academic vice-president, and editors where the questionable work appeared. The author was of course copied on each of these further letters. There was satisfaction in kicking up a small dust storm, and sometimes there was even a response.
    Research institutions care mostly about notches on their belt. Academic higher-ups can’t be counted on to know or care much about the details of faculty research fields or writing, so sometimes they need a nudge from the “outside.” Faculty usually won’t be called out by their colleagues and they certainly don’t like it, especially when someone from the “outside” threatens to make a fuss. It’s what faculty and academic administrators fear most.
    Expensive German motorcycle habit or not, please do consider pressing Professor Sullivan a little further on his clear transgression of academic honesty. You have ample grounds to do so and he may well have misappropriated your work on the assumption that no one in his orbit would ever realize he’d done so. Arrogance and intellectual honesty are an unpleasant combination that deserves to be confronted wherever it occurs.

    1. If there are 5 elements of the law of self defense, they are the elements. Nobody gets to make up their own elements of self defense law. Everybody will be using the same 5 elements and the elements are not the intellectual property of anyone. The elements of self defense were first declared by the English law and they are not the intellectual property of the judges who declared them to be essential elements of a valid defense of perfect or imperfect self defense.

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