The trial of Kyle Rittenhouse provides the public with a glimpse of criminal law in practice. Many think of the law as a series of rules—a set of binaries. Do this. Don’t do that. But this trial has put in stark relief the dueling values that underwrite our positive law. This is how the law actually works, although usually out of public view. This article will discuss some of these dueling values as represented in the law of self-defense, the law of provocation, the law of homicide, and our intuitive sense of moral blameworthiness.
One reason the Rittenhouse case has attracted so much attention harkens back to the foundation of the criminal law itself. The ambition of the criminal law is to codify our intuitions with regard to whether conduct is morally blameworthy—what’s right and what’s wrong. Rules divorced from this predicate value are questioned and, sometimes, regarded as illegitimate. For years I have taught the first-year course on criminal law at Harvard University. In the first few classes, I attempt to invite the students to think their way to the proposition that the criminal law is not limited to procedural justifications for punishing citizens. That is, the proposition that if a given rule is duly promulgated by a democratically elected legislature, then nothing more is required to legitimate that law.
To cash out this idea, I pose a hypothetical in a form similar to the following: Assume that a legislature (duly formed and fairly elected), in an effort to address the millions of dollars of annual corporate loss due to shoplifting, promulgates the following law: “Any person convicted of shoplifting will serve a mandatory sentence of 40 years in prison.” This is what the law refers to as a “minimum mandatory” sentence. The convicted person must serve 40 years in prison. The idea here is that the long sentence will serve as a powerful general deterrent to shoplifting. Would-be shoplifters will observe the fate of those convicted under this statute and decline to engage in this prohibited behavior.
Johnny Defendant, a 14-year-old high school freshman in the junior honor society steals a $1.25 packet of bubble gum. In his state, 14-year-old persons are considered adults for the purpose of criminal prosecution. He is arrested, tried, convicted, and sentenced to 40 years in state prison. Johnny has no prior contacts with the criminal legal system. In my 20 years of teaching criminal law, never has the conversation ended with the flat claim that he violated the statute; end of story. Inevitably, someone will say that result is unfair. The State’s power to punish seems misaligned in this context. Powerful exchanges among the students ensue. The point of this exercise is not to argue about the sufficiency of the procedural justifications; rather, the point of the hypothetical is to get students to realize that society also looks for substantive justifications for a particular law. Is it fair? Is it just? Does it comport with our intuitive sense of moral blameworthiness?
Which brings us to the Rittenhouse case. Aside from the legal analysis that this article will take up later, very many citizens have a good faith belief that Rittenhouse engaged in morally blameworthy conduct. He went to a Black Lives Matter protest, as a counter-protestor, in a state different from where he lived, with an AR-style semi-automatic weapon. For many, their moral intuitions tell them that Rittenhouse was looking for trouble, inviting confrontation, and perhaps provoking (in a lay sense) violent conflict. On this view, something seems unfair about escaping liability from the foreseeable results of the situation Rittenhouse himself created.
Of course, this view is not exclusive. An equal number of citizens hold a genuine belief that Rittenhouse is blameless. He had as much of a right to be in Kenosha as the BLM protestors. The Second Amendment and the laws of Wisconsin permitted him to carry a weapon openly. Properly at the venue and properly in possession of a gun, Rittenhouse had a statutory and common law right, not to mention a common-sense justification, to protect himself from death or grievous bodily injury. From this perspective, the deaths, though unfortunate, were justified. The criminal law and its self-defense doctrine help us adjudicate between the above competing claims.
The point here is not to resolve whose moral intuitions are correct. The point is to reaffirm that our criminal law has a substantive dimension such that citizens will (and should) question the fairness of our legal regimes. Because of this, whichever verdict the jury handed down would have been subject to substantive critique by the public.
To understand the law of self-defense, it is important to understand the difference between a legal excuse and a legal justification. Doctrines that are sound in justification and excuse both work to shield people from criminal liability. A legal justification is a theory of exculpation that asserts that the conduct in question is desirable—or at least not undesirable. It is the sort of conduct that the law says should happen under the circumstances. The conduct is justified. By contrast, an excuse recognizes the conduct to be undesirable, but allows that reasonable people likely would engage in that conduct under the circumstances. It excuses behavior that the law otherwise eschews. Self-defense is considered a legal justification, not an excuse. It is encouraged (justified) behavior, as compared to doctrines like duress (e.g., a person is blackmailed into committing a robbery on threat of someone harming his child) which are considered a legal excuse—the law does not encourage this behavior, but understands why a reasonable, law-abiding person would engage in such behavior. Self-defense, as a justification, sends an affirmative message to the public. The conduct in question is warranted. Desired. Justified. This is a powerful message; society is encouraging its citizens to employ deadly force in certain, albeit highly circumscribed, circumstances.
Self-defense, therefore, is an absolute defense. The structure of the law incentivizes citizens to use deadly force when certain standards are met. If the jury believes a person acted in self-defense, the jury is duty-bound to acquit. At common law, the law of self-defense takes into account five principal concepts: 1) proportionality; 2) imminent threat of harm; 3) reasonable apprehension; 4) first aggressor doctrine; and 5) duty to retreat. Here’s how it works. The use of force must be proportionate. If someone plucks your ear, you can’t hit them with a baseball bat. That’s not proportionate to the original force applied. The threat that justifies the use of force must be imminent. You cannot, for example, leave the scene and come back later and settle a score. The threat is no longer imminent, and self-defense will not be available. Your fear of a threat must be objectively reasonable. Your subjective assessment of the threat is not sufficient; the legal question regards whether a reasonable person, under the same circumstances, would have perceived the situation as a threat. Then, courts apply two equitable doctrines to the analysis. The first is the first aggressor doctrine. The first aggressor loses the ability to assert a self-defense claim. Quite simply, if you initiate the encounter, you cannot later claim self-defense. And, finally, before courts authorize the use of deadly force by civilians, in most instances, you have a duty to safely retreat. State law varies with respect to a duty to retreat, and “Stand Your Ground” laws in many states further complicate this equitable doctrine. That said, the foregoing represents the basic framework for self-defense law with minor variations among the states.
The Rittenhouse jury instructions summarized Wisconsin’s self-defense law this way:
• The defendant believed that there was an actual or imminent unlawful interference with the defendant’s person; and • The defendant believed the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and • The defendant’s beliefs were reasonable.
The jury instructions continue to further circumscribe the civilian use of force when that force raises to the level of deadly force: “The defendant may intentionally use force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.”
Most US jurisdictions impose a “duty to retreat” on defendants who seek to rely on the self-defense doctrine for their use of deadly force. That is, so long as it is safe to do so, a person is required to retreat prior to the use of deadly force. Wisconsin is different. It does not have a formal, stand-alone duty to retreat requirement; instead, the common law duty to retreat is baked into Wisconsin’s reasonableness analysis. That is, in determining whether a defendant’s use of deadly force is reasonable, a jury is required to “consider whether the defendant had the opportunity to retreat with safety, whether such retreat was feasible, and whether the defendant knew of the opportunity to retreat.”
Finally, Wisconsin law gives voice and vocabulary to an equitable doctrine found in common law that prevents the “first aggressor” from benefiting from the protections of self-defense law. In normal parlance, you can’t start a fight and thereafter justify killing someone in the course of the fight under a self-defense theory. This first aggressor limitation is a species of equitable doctrine that falls under the heading of “clean hands.” A person who does not have clean hands is not worthy of being insulated from criminal liability under a theory that his actions were legally justified. Wisconsin calls its first aggressor limitation “provocation.” The jury was told, “You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against the attack.”
The principal issues at trial were three: 1) whether or not Rittenhouse was under imminent threat; 2) whether or not Rittenhouse’s expressed fear for his life was reasonable; and 3) if Rittenhouse’s fear was reasonable, whether or not the self-defense justification is barred by Wisconsin’s doctrine of provocation.
On the first prong, a reasonable jury clearly could have found that the threat was imminent. Indeed, Gaige Grosskreutz, the government’s own witness, testified that he pointed a gun at Rittenhouse. This is a textbook case of an imminent threat. Not much additional needs to be argued with respect to Grosskreutz. It is not reasonable to argue that standing at gunpoint fails to meet the imminent threat standard. The facts regarding the other two alleged victims are also compelling on the imminent threat prong. Anthony Huber was hitting Rittenhouse with a skateboard, and at one point even touched Rittenhouse’s gun. Witnesses testified that a “hyperaggressive” Joseph Rosenbaum charged at Rittenhouse, threatened to kill him, and lunged for his gun. Suspending for a moment our normative judgments about what eventually happened and Rittenhouse’s presence in Kenosha that night in the first place, any reasonable person would find that there was an imminent threat in these chaotic situations.
For the purposes of this argument, I will credit Rittenhouse’s claim that he was subjectively in fear for his life. The law requires that a person seeking relief under a self-defense claim must first subjectively be in fear. Rittenhouse testified to his own state of mind and the jury believed him. No meaningful impeachment evidence on this point was presented. Once this subjective fear is established the jury must determine whether the fear was objectively reasonable. The standard for reasonableness is “what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.” The Rittenhouse jury likely spent many hours discussing whether his fear was reasonable. On the Grosskreutz matter, “reasonable” does not require much of a stretch. It is reasonable to be in fear for one’s life when one is one is looking down the barrel of a gun.
The Huber and Rosenbaum matters are closer calls. Does being hit by a skateboard constitute deadly force that justifies deadly force in response? Does being chased constitute an imminent threat that justifies deadly force in response? I believe Rittenhouse has the stronger argument on the former, and a much weaker argument on the latter two. In all events, these are jury questions—jurors are the judges of the facts, and the jury accepted Rittenhouse’s response. It is important to note here that because this was a criminal case, the jury question is not who had the better argument, but whether or not the government could prove its argument beyond a reasonable doubt. This burden rests with government and requires substantial evidence to satisfy. In contrast, Rittenhouse did not have an obligation to prove anything. In accord with Fifth Amendment to the Constitution, Rittenhouse could have stood mute and the jury would not have been permitted to draw any negative inferences.
Yet Rittenhouse did choose to testify, in large part to convince the jury that he was in fear for his life. Even if a jury believes that a defendant acts in self-defense, that legal justification will not stand if the state can prove the defendant provoked the danger themselves. If the jury believed that Rittenhouse provoked the encounter, then the equitable considerations of the first aggressor limitation, described above, come into play and the self-defense claim will be defeated. Provocation was the prosecution’s best chance at securing a conviction, and its best arguments map onto the moral intuitions of the many who objected to the verdict.
Rittenhouse, the argument runs, is morally blameworthy for coming to a chaotic situation with a gun and a design to engage in private law enforcement. The jury charge reads, “[a] person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten the use of force in self-defense against the attack.” Arguably, Rittenhouse’s conduct fits the definition of provocation. Counterarguments assert that Rittenhouse’s intent on possessing the gun was defensive. It was for protection. He did not brandish the weapon to anyone and, absent that, provocation becomes a hard case to make. The jury, obviously, credited the latter argument and, as a matter of law, such an analysis is not unreasonable.
A final word about the constraints that the jury acted under is necessary. In our criminal legal system, the state has the burden to prove all aspects of its case beyond a reasonable doubt. This means that once Rittenhouse put forward enough evidence to permit him to argue self-defense, the state had the obligation to prove the absence of self-defense beyond a reasonable doubt. So, even if one believes that one argument is slightly better than another, the state had the burden to prove beyond a reasonable doubt that Rittenhouse was not reasonably in fear of life or limb. This is a high burden—by design. Our tradition of criminal law draws from our history and our understanding of the relationship between individual and state.
For good or ill, we privilege liberty in the US, and liberty enjoys a presumption in our political discourse. Indeed, this presumption is rebuttable, but our society’s attachment to the ideal of liberty runs deep. Increase Mather, not far from where I now write, famously claimed in reference to criminal trials that it is better for 10 guilty go free than for one innocent to be convicted. It is an expression of our commitment to principles of liberty. Our system is designed to make it hard to convict. After watching the Rittenhouse trial gavel-to-gavel, the most plausible explanation for the verdict is that the prosecution did not prove its case, and the jury did what it swore to do when it was empaneled: render a not-guilty verdict if the state failed to meet its burden.
Viewed in this light, Rittenhouse’s acquittal comes as no surprise. The state’s case was infirm from the beginning. I cannot emphasize enough how problematic it was that the state’s star percipient witness, whom they put on the witness stand very early in the trial, admitted to pointing a firearm at Rittenhouse. This handed the jury reasonable doubt on a silver platter. Trial lawyers know and academic psychologists confirm that juries respond to concepts of primacy and recency: they remember best what they hear first and last. One of the very first things the jury heard from the prosecution’s witness was that Rittenhouse reasonably responded to an imminent threat of death. That did not bode well for the remainder of the trial.
The Rittenhouse trial did not take place in a vacuum. Indeed, the event that brought Rittenhouse to Kenosha was a Black Lives Matter march, protesting the shooting of Jacob Blake, a young African American male. Many read this verdict as an indictment on race relations in the country. They contend that this is yet another example of white people manifesting their privileged status in America—so privileged that they can kill with impunity. They punctuate this argument with claim that if Rittenhouse were black, he would have been convicted.
On this last claim, I wholeheartedly agree. If Rittenhouse had been black, he most assuredly would have been convicted. I suspect the jury would have found—at least with respect to Huber and Rosenbaum that his fear of death or serious bodily injury was not reasonable. Or, they would have found that this hypothetical black man provoked the situation. Consider the following counterfactual. A black man is roaming the streets of a Proud Boys rally with a rifle in tow. He ends up killing two protestors and injuring another. My belief is that the exact same Rittenhouse jury would apply the law to the facts of this counterfactual case differently. The result would be conviction. Data support this view. We know that blacks are convicted for homicide at significantly higher rates when the victim is white. And the history of this country’s reaction to blacks wielding firearms affirms my suspicions. Now, were we in my criminal law class, I would tweak this hypothetical a bit, and query what would have happened if the jury had been all black and the black defendant killed a Proud Boy on a self-dense theory. The challenge here would be to fashion an internally consistent theory to account for both hypothetical scenarios.
But assuming, for the sake of argument, that a black defendant would have been convicted by an overwhelmingly white jury, what does it say about the Rittenhouse verdict? What are the implications? What do we do? Normatively, is the point that we should have convicted Rittenhouse on insufficient evidence to atone for the way blacks are treated in the criminal legal system? Or, is the point merely descriptive, shining a light on an unfair system, but with no prescriptive corollary? What would we have gained with a Rittenhouse conviction? To convict Rittenhouse, a putative innocent under Wisconsin law, strikes me as a means to an end unrelated to the substance of the trial. I dare say that most people of goodwill would find that to be unethical and immoral. Kant certainly would not be happy. My view is that the aim of the criminal legal system should be to level up, not level down. We should spend our energies insisting that the system treat black defendants as Rittenhouse was treated, and not advocate for the system to treat Rittenhouse as black defendants are, and have historically been, treated. Leveling down inures to no one’s benefit. The derogation of rights would spiral downward—and quickly—such that all of our rights would be in jeopardy. And the very communities already treated badly in the criminal legal system would be treated even worse.
The arguments that the counterfactual would have produced a different result present another puzzle. Stating this inequality does not do any work beyond the purely theoretical or banally descriptive. Yes, it is likely the case that a similarly situated black man would have been convicted or shot by law enforcement—now what? Shall we advocate that juries disregard their instructions in cases tried in the wake of racial unrest? That seems ill-advised. Not only is such a regime not administrable, but these same advocates would have no moral authority to decry another jury that disregards its charge in other cases and for what they consider to be ignoble reasons. In other words, fashioning such a rule would create systemic problems that significantly outweigh the problem it seeks to remedy.
The anger with the Rittenhouse verdict is understandable. The result feels antagonistic to our moral sensibilities. It is also true that this case has become more metaphor than cause of action. It is being used to demonstrate the continuing existence of the troubling color line that Dubois described over a century ago. The problem is that there is good evidence that the explanation for the Rittenhouse verdict is far more prosaic. It likely only shows that the jury simply followed its charge. I dare say that, were I the defense attorney in the case, I would have won it 10 out of 10 times.
The quarrel, I submit, is not with the jury, or with the extrajudicial commentary that preceded the trial. The better quarrel should be with Wisconsin’s gun law. Long-standing self-defense law conspired with absurdly permissive open carry laws to create the set of conditions to make the Rittenhouse affair possible. Perhaps those of us who find the verdict troubling are better served by focusing our attention on state legislatures. I see nothing in the text of the Second Amendment or its doctrinal exegesis that compels states to permit minors to stroll about town with a rifle strapped across their shoulder. It makes no sense, and the unintended consequence of such a legal regime is a Wild Wild West mentality where citizens feel emboldened to engage in private law enforcement.
This is dangerous. The point here is to counsel efficaciousness in dealing with a real problem and to resist ceding the predicate of the debate to ill-motived individuals using this tragedy to advance far right-wing ideals. The joy with which the acquittal was met in some circles is disgusting. Two people are dead—forever gone from their loved ones’ day to day existence. On any read, this situation was tragic, not a cause for celebration.
We should honor the dead by being smart and strategic. Our society cannot and will not survive a polity that permits armed children to walk the streets and kill with impunity. Our moral sensibilities push in a different direction, and we must take action to ensure that our moral sensibilities are adequately reflected in our positive law.
This is a companion discussion topic for the original entry at https://quillette.com/2021/11/23/the-rittenhouse-trial-a-legal-scholar-responds/