Kyle Rittenhouse has been acquitted of all the criminal charges against him, the only possible verdict consistent with justice in a case with this evidence and law. Having been acquitted in criminal court, he is now free of any possible criminal liability for his actions in lawfully defending himself on August 25, 2020.
Now, however, there remains the possibility that he might be sued in a civil suit, either by survivor Gaige Grosskreutz for the vaporization of his bicep when Kyle shot him in self-defense, or by the families of Joseph Rosenbaum or Anthony Huber in wrongful death actions for Kyle’s killing of those two men, again in self-defense.
In particular, I’m getting a lot of inquiries as to whether Kyle Rittenhouse might find protection from any such civil suits under Wisconsin’s self-defense immunity statute. So, that will be the focus of today’s content.
There are certainly lawsuits that are flying around this case, but I believe they are entirely focused on seeking compensation from the government of Kenosha, largely on the legal premise that the authorities had constructively, if not formally, deputized the men present with AR rifles and therefore is responsible for their conduct.
It’s not much of a legal argument, but I guess you work with what you’ve got.
In any case, I’m unaware of any civil suits filed against Kyle—but such suits certainly could be filed, so I’m getting a lot of inquiries as to how the civic court dynamics might play out here, and whether Kyle might avail himself of the state’s self-defense immunity statute.
Self-Defense Immunity: Minimize Cost, Time, Risk
Self-defense immunity is best thought of as a way to arrive at a determination of privileged use of force in self-defense in a relatively cost-effective and timely pre-trial hearing and possibly avoiding the tremendous cost and risk of a full-blown trial.
Absent self-defense immunity, a full-blown trial is the only way to combat a prosecutor intent on bringing you to trial on a use-of-force charge. He brings you to trial on a criminal charge based on your underlying use of force—murder or manslaughter, for example, if you’ve shot somebody dead—and you raise the legal defense at trial of self-defense—sure, I shot him dead, but I meet all the conditions required for lawful self-defense (or, more accurately, the state can’t disprove any of those conditions beyond a reasonable doubt), and therefore the killing is legally justified (or privileged, as Wisconsin prefers to put it).
This traditional way of combating a charge of unlawful use-of-force can work, as we’ve just seen in the case of Kyle Rittenhouse, and have seen in many other cases, including that of George Zimmerman.
But a full-blown trial is an incredibly costly and time-consuming affair—and risky.
In terms of cost, a case involving a killing charge—as both Rittenhouse and Zimmerman’s did—can easily burn through $200,000 before it even gets to trial, just in pre-trial expenses. Then the trial can readily be a multiple of that cost. I’m reliably informed that the Zimmerman defense billed out at close to $2 million.
In terms of time, it’s not unusual for a case involving a killing charge to take a year or a year-and-half to get from event to trial, and then perhaps consume more weeks at trial. During all this time the defendant’s life is essentially frozen—one does not make too many long-term plans when there’s a decent prospect you might be spending the rest of your life in a cage.
And, of course, there’s risk. I often tell the clients in the cases I consult on that anyone we put in front of a jury has perhaps a 10% chance of being convicted, no matter how innocent they may be. That’s just the “noise” in the system and a reflection of the reality that juries are dangerous and unpredictable creatures.
Nearly all of that cost, time, and risk of a full-blown trial can be side-stepped through the wonders of self-defense immunity.
Self-Defense Immunity Pre-Trial Hearing
How self-defense immunity works in practice is that a person facing a criminal or civil trial based on their use of force can demand a pre-trial self-defense immunity hearing.
Note: These are very often mistakenly referred to as a “Stand-Your-Ground hearing.” Any time you hear that phrase spoken you can be fairly certain the speaker has no idea what they are talking about, and what is really being heard is not stand-your-ground but self-defense immunity. There’s no such thing as a hearing to determine stand-your-ground. There may be a hearing to determine self-defense immunity.”
So, the person facing the legal liability for a use of force event demands a pre-trial self-defense immunity hearing. There is no jury at this hearing, as no jury is selected until the trial, and we’re still pre-trial. Instead, we have a kind of “mini-trial” at this hearing where the defense will argue their narrative of self-defense, the state will argue against self-defense, and the judge will act as both judge and as finder of fact (the role taken by a jury at a trial).
In this “mini-trial” the defense has the burden to prove self-defense by a preponderance (majority) of the evidence to the satisfaction of the hearing judge (who is usually the same judge who will be the trial judge, should things go to trial). If they convince the hearing judge that they’ve met their burden, the judge grants immunity from criminal prosecution and/or civil suit.
I should mention that the burden and threshold for self-defense immunity do vary among the states—I’ve described the most common arrangement. In Florida, for example, the state must disprove self-defense by clear and convincing evidence in order to defeat a motion for self-defense immunity.
I mention that the judge would award immunity for criminal and/or civil liability because which of those forms of immunity is available varies by state. Some states, like Florida, allow for both criminal and civil immunity to be granted at a self-defense immunity hearing. Other states allow for criminal immunity—immunity from criminal prosecution—but not civil immunity—so, no immunity from civil suits. And other states do the reverse and provide for civil immunity but not criminal immunity.
Indeed, while Wisconsin law does provide for self-defense immunity, it does so only in the civil context, and not in the criminal context. So, a defender can demand that pre-trial hearing, successfully argue self-defense, and be granted immunity from a civil suit—but that does nothing to immunize them against criminal prosecution.
Of course, Kyle Rittenhouse was just acquitted, so under the doctrine of double jeopardy he’s already “immune” from criminal prosecution—all he needs now is civil immunity. So I guess he’ll be taking advantage of the Wisconsin self-defense immunity doctrine for civil liability, right?
Wisconsin Immunity Is Wrapped Within Its Legal Presumption
Well, no.
Unfortunately, the self-defense immunity process I described above, with the mini-trial and so forth, isn’t available as unconditionally in Wisconsin as it is in other states. Instead, Wisconsin wraps its self-defense immunity privilege in a blanket of completely unrelated self-defense law doctrine—the doctrine of a legal presumption of reasonableness in the use of force in the context of an intruder into highly-defensible property.
So, let me explain how these legal presumption laws work in the context of highly-defensible property. Many states have a special law that creates a legal presumption that a defender of highly defensible property against a forcible and unlawful intruder into that property had at the time a reasonable fear of imminent deadly force harm.
This essentially gives that defender every one of the legal elements needed to justify his use of deadly force on the intruder—the only element not presumed is the element of Innocence, and that one’s kind of baked into the cake if a homeowner is facing off against an intruder.
What counts as highly defensible property for purposes of this legal presumption law varies by state—the home is always included, and many states also include one’s occupied vehicle and one’s business. Wisconsin’s definition of highly defensible property includes all three—home, occupied vehicle, business.
So, if you’re defending your home, occupied vehicle, business against a forcible and unlawful intruder, and also meet a few other conditions, and also avoid a few specific exclusions, you get the benefit of being legally presumed to be privileged to use deadly defensive force.
So, now we have two different legal doctrines we’re working with. Self-defense immunity, on the one hand, and legal presumptions of reasonableness, on the other hand. Some states have one, some states have the other, and some states have both.
Wisconsin has both. But rather than keeping these two doctrines separate, as every other state with both does, Wisconsin buries its civil self-defense immunity privilege into the conditions for its legal presumption of reasonableness statute.
That means that all the circumstances, conditions, and exclusions of the Wisconsin legal presumption law now also apply in the context of qualifying for Wisconsin’s civil self-defense immunity.
In other words, you only qualify to even request pre-trial civil self-defense immunity hearing in the first place if your use of force occurred in the context of defending your home, occupied vehicle, or business from a forcible and unlawful intruder.
Unfortunately for Kyle, none of his use-of-force the night of August 25, 2020, involved him defending his home, occupied vehicle, or business from a forcible and unlawful intruder—so he doesn’t even qualify to request a pre-trial civil self-defense immunity hearing in the first place, and so would never even have the opportunity to argue for immunity at all.
No Self-Defense Immunity for Kyle: But It’s Not ALL Bad News
Bottom line: No self-defense immunity possibility exists for Kyle as a means to protect himself against possible civil suits in this case.
That’s the bad news.
The good news is that I don’t think any such civil suits have been filed against Kyle by either survivor Gaige Grosskreutz or the families of Anthony Huber or Joseph Rosenbaum—and I’m not sure I would expect there to be.
The arguments for civil liability would be substantially less compelling than the argument for criminal liability, if only because the criminal prosecution was able to kind of link each use-of-force event together through a series of criminal charges specific to each involved “victim.” In the civil case each of those events would essentially be considered in isolation—and each on its own merits looks wildly like lawful self-defense.
Of course, it’s also true that at the criminal trial the State had the burden to disprove self-defense beyond a reasonable doubt, whereas in civil court the plaintiff only has to disprove self-defense by a preponderance (majority) of the evidence., a much lower threshold than the state had.
At the same time, of course, Kyle arguably has a counter-suit opportunity against at least Grosskreutz—not sure how that works in the context of a wrongful death suit brought by the family of Huber or Rosenbaum, but of course their own aggressive conduct in those fights would mitigate civil liability in any case. I don’t expect Kyle to initiate a suit, but I would expect a counter-suit to be filed in response if any civil suit is filed against Kyle first.
It’s my expectation that the civil suits in this case will continue to focus on the government of the city of Kenosha, and its various agencies, particularly the police. The central argument here appears to be that the city in effect deputized the people, like Kyle, walking around armed with ARs, and so the city should be responsible for damages that result.
It’s not a great argument, really, but it has a couple of things going for it.
First, the city has deep pockets, so plenty of money.
Second, it’s OPM—other people’s money. Meaning, the politicians who might pay to settle any of these suits are not reaching into their own pockets for the payoff, they are reaching into the pockets of Kenosha taxpayers.
Third, politicians love the option of spending other people’s money to make their own political and legal problems go away.
So, it wouldn’t surprise me in the least if the city of Kenosha agreed to rather lavish settlements with Grosskreutz or the families of Huber and Rosenbaum—it’s what governmental agencies who find themselves in these circumstances tend to do.
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–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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So could you argue that Kyle actions were state actions in one lawsuit and argue that he actions were personal actions in another lawsuit?
Dear Barrister [!] Branca,
I’m off-topic for this thread, but it’s still “on-Rittenhouse,” so …
I thought I’d signed up for your Sunday evening event at Legal Insurrection, but apparently I screwed up, so I couldn’t participate. I had a question I’d hoped to ask. Well, I still have the question, and it strikes me as substantive, so here it is:
During his close, Binger said:
“[E]very day we read about heroes that stop active shooters. That’s what was going on here and that crowd was right. And that crowd was full of heroes. And that crowd did something that honestly I’m not sure I would’ve had the courage to do. If I see a guy running up the street with an AR-15 and I hear he just shot somebody, my first instinct is not to approach. Anthony Huber was different. Jump Kick Man was different. Gaige Grosskreutz was different. That doesn’t make them a threat to the defendant’s life. It doesn’t make their lives worthless. They don’t give up their right to defend themselves. They have just as much right as the defendant. I told you I wanted to begin by talking about the murders committed by the defendant.”
So there Binger was making a factual assertion that Huber and Grosskreutz were “heroes.”
Then why, during their close, wouldn’t the defense have been entitled to inform the jury about Huber’s and Grosskreutz’s sordid individual histories, so the jury could consider the plausibility of Binger’s assertion about their motives?
I’ve run this past several (visible online) lawyers, and all I’ve gotten back is that Huber and Grosskreutz weren’t the subjects of the case. But that doesn’t answer my question, a question that strikes me (a retired physicist) as both well-posed and pertinent.
p.s. While I’m at it: I think the judge forbad the prosecution from describing Rosenbaum et al. as “victims.” So what about that “murders committed by the defendant” phrase?
Prosecutors (and defense) are given a lot of room to interpret the facts of the case on closing. “Hero” is not a “fact,” it’s merely a characterization. No way was that going to be stopped. And at closing evidence is closed, except perhaps for a sur-rebuttal, so — anyway, THIS defense was clearly not going to take such an aggressive stance.
Thanks, Mr. Branca!
Interestingly, in his Thursday column …
https://townhall.com/columnists/kurtschlichter/2021/11/18/free-states-must-defend-the-right-to-selfdefense-n2599239
… Kurt Schlichter had some thoughts concordant with the point/question I was raising above:
“Let’s also give the jury the full story and require that the entire criminal history of the target be revealed to the jury and that the jury be instructed that this history can be considered on the question of whether the self-defender was threatened. No, the self-defender might not know the history of the target when he fires, but who cares? Justice demands the jury know who got shot since it has a bearing on why he got himself into the position where he needed to get shot.”
Mr. Schlichter is a lawyer (and Branca admirer — see that linked article). I’m just a physicist (but also a Branca admirer!).
More Schlichter that I should have included in my preceding comment:
“And we need to clarify that force may be used to defend property (Branca observes that in Texas, you can defend property – cool). Let’s go further and allow the defense of pets. I’ve had friends whose dogs were attacked by these savages – their dogs, people! Call that the ‘John Wick Law.’ Hurt a dog, die like one.
“Further: ‘The jury shall be instructed that unarmed individuals can pose a grave threat to armed individuals, and that a person attempting to take the weapon of the self-defender by force or threat of force shall be presumed to intend to use that weapon upon the self-defender.’ Try to take a piece? Better make your peace.”
Andrew , could Kyle sue Gaige or the estates of Rosenbaum / Huber should they get a settlement from the Kenosha government ? Would he have a cause of action , say for the PTSD he suffered from the attack ?
Also are paid members here going to get free access to your locals site ?
Another issue that seems important – this wouldn’t the State of Wisconsin, with infinite resources, against a hired defense attorney. This is private attorney vs. private attorney, and Ritty has a pile of money. I would think a plaintiff’s attorney would think long and hard about taking this case on a bet he’ll get a big payoff in the end.
What does the following mean?
A person may employ deadly force against another, if the person reasonably believes that force is necessary to protect a 3rd-person or one’s self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F. 2d 79 (1975).
Given the limited context, I read that as simply a recognition that the legal defense of self-defense is available in a civil case as well as in a criminal case.
Considering Binger’s argument that these guys were “heroes” for chasing down Kyle, perhaps Richards should thank Richards for that very characterization of KYLE as a HERO. The Defense is now able to point out that Binger’s very argument should in fact indicate KYLE was a hero for stepping up to protect homes and businesses from arsonists/looters, and in fact that is what he was doing, and that NO OTHER participants should have felt threatened?