Bob Sheak, firstname.lastname@example.org
December 4, 2021
The acquittal of gun-toting Kyle Rittenhouse on the charges of first-degree intentional homicide for killing Joseph Rosenbaum, 36, and Anthony Huber, 26, and attempted first-degree intentional homicide, for seriously wounding Gaige Grosskreutz, 26 is unsurprising. I’ll delve into the Rittenhouse case later in this post. At the same time, there is a larger problem. The acquittal, decided by a largely white jury, is being used to legitimate a right-wing conception of the second amendment, endorsed by the still Trump-dominated Republican Party and its allies and supporters. Much of the action advancing unregulated gun rights is being taken by Republican governors and legislators at the state level.
They want little or no government regulation of gun ownership. Such a position on unregulated gun ownership has relevance for the Rittenhouse case and also how the society broadly deals with guns and violence. It is a position that implicitly endorses a wild-west conception of the law, that is, everyone – at least adults – should have the “freedom” to own as many guns as they want and carry them concealed or openly wherever they want. And, in this viewpoint, it is up to the gun owner to decide whether and when it is appropriate to shoot someone in what they perceive to be self-defense or in the course of a self-conceived citizen’s arrest.
As I’ll document in this post, the acquittal of Rittenhouse undermines the traditional legal meaning of self-defense; gives right-wing groups the opportunity to make heroes of such self-styled shooters, encouraging vigilantism; and increases the chance of threatened and actual violence by people carrying firearms in all public and private places.
It contributes to the creation of a society in which every “adult” can carry a weapon into any one of innumerable public spaces (streets, households, neighborhoods, malls, community centers, athletic events, religious ceremonies, libraries, boards of education meetings, political events, government buildings, the U.S. Congress, state legislatures, etc.) and, as noted, where a gun-toting person can shoot and kill others because of a perceived threat to his/her personal safety or to the public order. These developments intensify the political and ideological polarization in the society and reduce opportunities for dialogue and cooperation. The concept of the common good is alien to this extremist perspective.
Background in the Rittenhouse case
The police shooting of an unarmed black man leads to peaceful demonstrations as well as looting and property destruction
On August 23, 2020, “Jacob Blake was shot seven times by Kenosha Police Officer [Rustin Sheskey] shortly after 5 p.m. on the 2800 block of 40th Street,” according to a report by Liz Snyder in the Kenosha News (https://www.kenoshanews.com/the-jacob-blake-shooting-and-its-aftermath-a-timeline-of-events/article_08d1ea27-b8b7-51a4-b223-8887c48529f2.html).
Snyder continues. “Police were called to the location for a domestic incident. Several witnesses at the scene said Blake was trying to break up a verbal altercation between two women on that Sunday.” A bystander videoed what then transpired. As Blake attempted to get into a parked car, with his three children inside, police officer Rustin Sheskey shot him in the back seven times.
Amazingly, Blake did not die from his wounds. He was transported via Flight For Life Froedtert Hospital in Wauwatosa. His injury paralyzed him from the waist down. Later, on August 28, the “Wisconsin Department of Justice released the names of two other officers who had been present when Jacob Blake was shot: Vincent Arenas and Brittany Meronek. Neither fired a shot.
The video of Blake being gunned down is seen in Kenosha and around the world. On the evening of Aug. 23, 2020, and over the next couple of nights protests erupt in the center parts of downtown, “with some protests turning destructive and violent, as people break windows, set fires and loot businesses.” In the early hours of Monday, August 23, Gov. Tony Evers activates the National Guard.
Then on Aug. 24, according to Snyder, “A noon rally, followed by a peaceful march to Downtown Kenosha, draws members of the media from all over the world to the spot where Jacob Blake was shot, on 28th Avenue and 40th Street. As the protesters march to the Kenosha County Courthouse, chants of “No justice, no peace” ring out.” Later in the day, “Local officials put out a plea for protesters to remain peaceful. A chaotic scene erupts outside the Kenosha Public Safety Building when Mayor John Antaramian tries to address the crowd via megaphone. Unable to be heard in the crowd, the mayor moves his press conference inside the building.”
The mix of peaceful demonstrations and civil disruption continue on Tuesday August 25.
Enter Kyle Rittenhouse
Wikipedia provides details
The night before the day of the shootings on August 24, 2020, 17-year-old Rittenhouse traveled across the state line from his home in Antioch, Illinois, to Kenosha to stay at a friend’s house. The friend is Dominick Black, who had previously purchased an AR-15 assault weapon for Rittenhouse, an illegal action according to Wisconsin law. The next day, Aug. 25, Rittenhouse strapped the weapon around his shoulder and drove with Black to the downtown area of Kenosha where the demonstrations and civil disorder were occurring.
(“In November 2020, 19-year-old Dominick Black was charged with two felony counts of intentionally selling a rifle to Rittenhouse, then a minor. Bond was set at $2,500,” as noted by the Wikipedia account.)
Who is Kyle Rittenhouse?
Wikipedia informs readers that “Kyle Rittenhouse was a resident of Antioch, Illinois, about 20 miles from Kenosha by road. Prior to the Kenosha unrest, he had participated in local police cadet programs and expressed support on social media for the Blue Lives Matter movement and law enforcement.” (https://en/wikipedia.org/wiki/Kenosha_unrest_shooting).
Haley Willis and her colleagues at The New York Times refer to evidence on multiple posts of Rittenhouse’s social media account, where he states his “support for pro-police causes like the Blue Lives Matter movement and Humanize the Badge, a nonprofit that he ran a Facebook fund-raiser for on his 16th birthday.” They add: “His posts also suggest a strong affinity for guns, with videos showing Mr. Rittenhouse taking backyard target practice, posing with guns and assembling a weapon” (https://nytimes.com/2020/11/27/us/kyle-rittenhouse-kinosha-shooting-video.html).
In a report published on The Washington Post, MarkBerman and Griff Witte write the following. “Before he took his rifle and drove 20 miles up the road to confront the unrest in Kenosha, Wis., Kyle Rittenhouse seemingly idolized one thing: the police….” filling his social media feeds with posts declaring that ‘Blue Lives Matter’ and photos of himself posing with guns” (https://washingtonpost.com/2020/08/27/kyle-rittenhouse-suspect-ideolized-the-police). The journalists also note that in December 2018, Rittenhouse “started a Facebook fundraiser for Humanizing the Badge, a nonprofit that Rittenhouse said looks to ‘forge stronger relationships between law enforcement officers and the communities they serve.’”
According to Berman and Witte, ““Jim McKay, the superintendent for the school district that includes Antioch, said in a statement to the [Washington] Post that Rittenhouse attended Lakes Community High School for a semester in the 2017-18 school year and did not re-enroll afterward. Two unnamed neighbors told the Chicago Sun-Times that he had dropped out of Lakes.”
Outside of school, Berman and Witte continue, “Rittenhouse participated in cadet programs with both the Antioch Fire Department and the Grayslake Police Department, according to department newsletters. The police initiative offers participants from ages 14 to 21 “the opportunity to explore a career in law enforcement” through ride-alongs with officers on patrol and firearms training, according to since-deleted pages on its website.” Recently, “Rittenhouse worked as a part-time lifeguard at a YMCA in Lindenhurst, Ill., the Tribune reported. Man-Yan Lee, a representative for the organization’s metro Chicago branch, said in a statement to The Post that Rittenhouse was furloughed in March.”
Up until the shootings and his arrest, “Rittenhouse lived with his mother, Wendy Rittenhouse, a single mom and nurse’s assistant, in a quiet apartment complex beside a park in Antioch, a bedroom community that sits just south of the Wisconsin border.”
August 25: The fateful day
Wikipedia provides a detailed overview of the events of August 25 (https://en.wikipedia.org/wiki/Kenosha_unrest_shooting).
“During the day of August 25, peaceful protests in Kenosha were followed by chaos where demonstrators, armed civilians and others faced off against one another and the police at night. After the city suffered building and vehicle damage the preceding day, social media had drawn locals and outsiders, left-wing activists and right-wing militia into the city streets despite an evening curfew imposed on citizens. Some 250 National Guard members were deployed to the city. Militia that included Boogaloo boys and a biker crew carrying ‘hatchets, ball bats, and ﬁrearms’ accumulated near two gas stations south of Car Source, an automotive business with three properties (a dealership, a used car lot, and another car lot to the South), which had been badly damaged during the first two nights of unrest. Car Source had suffered $1.5 million in arson damage the previous night. The shootings took place shortly before midnight along Sheridan Road in Kenosha after protesters were moved out of Civic Center Park following clashes with law enforcement. Police in armored vehicles drove protesters south away from the courthouse and Civic Center Park.”
Rittenhouse amid the turmoil
“In the hours leading up to the shooting,” according to the Wikipedia account, “Rittenhouse appeared in multiple videos taken by protesters and bystanders and was interviewed twice: first by a live streamer at the car dealership where he and a number of other armed men had stationed themselves, second by Richie McGinniss, a reporter for The Daily Caller. Rittenhouse was seen talking with police officers, and offering medical aid to those who were injured. When McGinniss asked Rittenhouse why he was at the car dealership, he responded: “So, people are getting injured, and our job is to protect this business. Part of my job is also to help people. If there is somebody hurt, I’m running into harm’s way. That’s why I have my rifle, because I have to protect myself, obviously. I also have my med kit.” At some point, Rittenhouse left the dealership, was prevented by police from returning, and then headed to the Car Source lot farthest to the South.”
Haley Willis and her colleagues at The New York Times compiled background evidence on Rittenhouse and tracked him in the fatal Kenosha shooting. They published an initial version of their evidence in August 27, 2020 and updated on November 16, 2021 (https://nytimes.com/2020/11/27/us/kyle-rittenhouse-kenosha-shotting-video.html). They report, “About 15 minutes before the first shooting, police officers drive past Mr. Rittenhouse, and the other armed civilians who claim to be protecting the dealership, and offer water out of appreciation.” Then, “Mr. Rittenhouse walks up to a police vehicle carrying his rifle and talks with the officers.” Rittenhouse “eventually leaves the dealership and is barred by the police from returning.
Berman and Witte report that at one point the police welcomed the armed men, as they “thanked them for being in the city — despite the fact that they were violating Kenosha’s curfew — and passed out water bottles in gratitude.” The police are also reported to have said, “‘We appreciate you guys,’ one officer tells the men in a live stream video published online. ‘We really do’”
According to Berman and Witte, Rittenhouse spoke to reporters and showed off his medical kit and said he was guarding private property.” “Six minutes later footage shows Mr. Rittenhouse being chased by an unknown group of people into the parking lot of another dealership several blocks away.” These were just moments before the first of three shootings.
In one of her articles on the Rittenhouse case, Julie Bosman, the Chicago bureau chief of The New York Times, gives us a “timeline” of the events before and after Rittenhouse’ deadly actions
(https://nytimes.com/article/kyle-rittenhouse-shooting-timeline.html). Here are some examples of what she reports.
“By late evening [of August 25], most of the demonstrators had left the area. But dozens of armed protesters and other members of the crowd remained on Sheridan Road, arguing, threatening and shoving each other and occasionally setting fires in garbage cans. Mr. Rittenhouse, a 17-year-old from Illinois, was walking in the area holding a military-style semiautomatic rifle, the AR-15.”
Bosman continues: “At one point, he was chased into a used car lot by Joseph Rosenbaum, 36, who threw a plastic bag at Mr. Rittenhouse. Mr. Rittenhouse fatally shot Mr. Rosenbaum and ran away, in the direction of the armored vehicles where police officers and National Guardsmen were stationed. Several members of the crowd pursued Mr. Rittenhouse and he shot two of them, killing Anthony Huber, 26, and wounding Gaige Grosskreutz, who was 26 at the time.”
Wikipedia provides details on these events (https://en/wikipedia.org//wiki/Kenosha-unrest-shooting).
“Video footage showed Rittenhouse being pursued across a parking lot by a group of people.  Rosenbaum threw a plastic bag containing socks, underwear, and deodorant at Rittenhouse. A bystander named Joshua Ziminski fired a shot into the air, and then Rittenhouse stopped running and turned towards the sound of the shot. Rittenhouse testified at trial that prior to being chased by Rosenbaum, he heard another man tell Rosenbaum to ‘get him and kill him,’ but he also knew that Rosenbaum was unarmed. Rittenhouse testified that he aimed his gun at Rosenbaum to deter him from pursuing him further.
“Witnesses for the prosecution testified at trial that Rosenbaum engaged Rittenhouse and tried to take his rifle from him. At 11:48 pm, Rittenhouse then fired four rounds at Rosenbaum, hitting his groin, back and left hand. The bullets perforated Rosenbaum’s heart, aorta, pulmonary artery and right lung, fractured his pelvis, and caused minor wounds to his left thigh and forehead. McGinniss [the reporter for The Daily Caller] began administering first aid to Rosenbaum. Rittenhouse stood over McGinniss for half of a minute before fleeing, and was heard saying “I just killed somebody” on his cell phone to his friend Dominick Black as he sprinted out of the parking lot where he had shot Rosenbaum.”
Haley Willis, et. al., report that Rittenhouse walked toward the police vehicles, while bystanders “call out to the officers that he had just shot people,” but the “police drive by him without stopping.”
According to Wikipedia, “Protesters were heard on two different videos yelling “Beat him up!”, “Hey he shot him!” and “Get him! Get that dude!” One individual struck Rittenhouse, knocking off his cap, shortly after which Rittenhouse tripped and fell to the ground. Others shouted “What’d he do?”, “Just shot someone!” and “Get his ass!” While he was on the ground, one of the men in pursuit jump kicked Rittenhouse who fired twice but missed the man.
“Another protester, Anthony Huber, hit Rittenhouse’s left shoulder with a skateboard as the pair struggled for control of the gun. As Huber was pulling on the rifle, Rittenhouse fired once, hitting Huber in the chest, perforating his heart and right lung, causing his rapid death.
Gaige Grosskreutz, who was shot and wounded during the fateful events, “was filming the protest as a legal observer for the American Civil Liberties Union on a Facebook livestream. Shortly before midnight he said he heard gunshots to the south and observed Rittenhouse running in his direction on Sheridan Road. Grosskreutz said he ran alongside Rittenhouse and asked ‘Hey, what are you doing?’ and ‘You shoot somebody?’” In his testimony, Grosskreutz said “he believed Rittenhouse was an active shooter.” Grosskreutz had an expired concealed carry permit for a handgun and was carrying a Glock pistol. He approached Rittenhouse, who was on the ground, but stopped and put his hands up after Huber was shot. Grosskreutz then pointed his handgun and advanced on Rittenhouse, who shot Grosskreutz in the arm, severing most of his right biceps muscle.”
Rittenhouse turns himself in
In an article for the Milwaukee Journal Sentinel, Bruce Vielmetti and Christopher Kuhagen report that after the shootings and after the police ignored what had happened, Rittenhouse met up with his friend Dominick Black, who drives him back to his home in Antioch, Illinois (https://www.jsonline.com/story/news/crime/2021/10/28/timeline-kyle-rittenhouse-case-in-kenosha-wisconsin-after-protests-jacob-blake-police-shootings-8437851002).
“His rifle was in Black’s trunk, along with Black’s own rifle,” the journalists write. Joined by his mother, he surrendered to the Antioch police” about an hour after the shootings in Kenosha. This is on the morning of August 26. Black had purchased the firearm for Rittenhouse in May at a hardware store in northern Wisconsin and kept it at Black’s stepfather’s house. Black turned over both weapons to the police.”
Rittenhouse turned himself in to police in his home town of Antioch, Illinois about an hour after the shootings in Kenosha, that is, on the morning of August 26. He will spend the next two months in the juvenile detention center in Vernon Hills, Illinois, based on the allegations that he had killed two people and wounded another. On October 30, 2020, he is extradited to Kenosha.
Ray Sanchez and Brad Parks describe the 5 charges the 12 jurors in Kyle Rittenhouse’s trial were to consider (https:///cnn.com/2021/11/14/us/kyle-rittenhouse-jury-deliberations-charges/index.html). Here are the three charges regarding the three persons Rittenhouse shot.
One charge is for first-degree reckless homicide and use of a dangerous weapon and states that Rittenhouse “recklessly caused the death of Rosenbaum under circumstances that showed utter disregard for human life.” Rittenhouse would testify that “he acted in self-defense when he fatally shot Rosenbaum after the man threw a plastic bag at him and chased him.” He testified that he knew that Rosenbaum was unarmed but considered him dangerous and that he might try to take his weapon. Still, he said “he pointed his rifle at Rosenbaum in an attempt to deter him and acknowledged it was dangerous.”
Rittenhouse testified: “If I would have let Mr. Rosenbaum take my firearm from me, he would have used it and killed me with it and probably killed more people.”
Mark Eiglarsh, Rittenhouse’s criminal defense attorney, commented that putting Rittenhouse on the stand as “a game changer.” CNN legal analyst Joey Jackson said. “Number one, you humanize him… More important, number two, he explained his uses of force.” The jury would find him “not guilty” on this charge, perhaps because they believed Rittenhouse’s account that he feared for his own life in the encounter with Rosenbaum and that he acted in self-defense.
With respect to the killing of Huber, the charge was “first-degree intentional homicide, use of a dangerous weapon.” This charge “states Rittenhouse caused the death of Huber, with intent to kill him. It’s the most serious charge he faces, with a mandatory life sentence. Huber swung his skateboard at Rittenhouse after Rosenbaum was fatally shot.”
Finally, Rittenhouse was charged with “attempted first-degree intentional homicide, use of a weapon” in the case of Grosskreutz. Sanchez and Parks describe the situation. “After shooting Huber, Rittenhouse testified, he saw Grosskreutz lunge at him and point a pistol at his head. Rittenhouse shot him, he testified. Grosskreutz was wounded.” In testimony before the court, Grosskreutz said “he and a crowd followed Rittenhouse, who had just fatally shot another man.” They continue: “Rittenhouse fell to the ground, fired twice at an unknown person and then fatally shot Huber.” And: “Grosskreutz testified he pulled out his own firearm because he believed Rittenhouse was an active shooter,” and he witnessed Rittenhouse “reracking” his weapon, “a motion that loads it for gunfire.”
Detention and release on $2 million bail
Will Sommer, Zachary Petrizzo, and Justin Baragona report on another aspect of the story, that, after two months, Rittenhouse was released from jail on $2 million bail
They report, “After Kyle Rittenhouse’s bail was set at $2 million in November 2020, conservative celebrities and others raised the cash to keep him out of jail.”
“The money was initially raised after Rittenhouse’s bail was set at a staggering $2 million in November 2020, following a ruling from a court official that Rittenhouse’s hefty potential sentence and potential supporters meant he could become a flight risk.” Then a nonprofit created by Lin Wood, a controversial defamation lawyer and QAnon conspiracy theorist, “swung into action to raise enough money to get Rittenhouse out of jail ahead of his trial.” He set up The Fight Back Foundation and with assistance of a former Rittenhouse attorney, John Pierce, they together raised the bail money. Pierce holds the receipt for the bail. They hoped to make a profit off their promotion of a rising right-wing hero. There is now a controversy involving Pierce, Wood, and Rittenhouse’s mother about who the recipient of the bail money should be.
Judge Schroeder’s rulings
“At a hearing on September 17, 2021,” according to Wikipedia, “Schroeder denied prosecutors’ requests to admit as evidence Rittenhouse’s outing with Proud Boys members and a previous fight he was involved in, finding that the incidents were too dissimilar to be used as evidence of Rittenhouse’s mindset during the shootings. On October 25, Schroeder defined what testimony would or would not be admissible by both the defense and the prosecution. Schroeder ordered that the men shot by Rittenhouse cannot be referred to as victims but can be described as arsonists or looters if the defense is able to establish evidence they were engaged in those activities that night. Legal experts weighed in on the decision saying that the term “victim” can appear prejudicial in a court of law, heavily influencing a jury by presupposing which people have been wronged.
Bruce Vielmetti and Christopher Kuhagen also report on judge Schroeder’s rulings (https://www.jsonline.com/story/news/crime/2021/10/28/timeline-kyle-rittenhouse-case-in-kenosha-wisconsin-after-protests-jacob-blake-police-shootings-8437851002_).
They write: “The judge in the case denied prosecutors’ requests to use so-called ‘other acts’ evidence they argue shows the teen’s inclination to act like a vigilante, and would reveal his state of mind.” And: “Schroeder also denied more prosecution motions at the last scheduled hearing before the trail. The prosecution sought to block the defense from introducing evidence that, earlier in the night of the shooting, a law enforcement officer had told Rittenhouse and other armed men who were not being moved out of the area under the curfew, ‘We appreciate you guys, we really do.’”
During the trial, Judge Schroeder dismissed the illegal weapon carrying charge brought by the prosecution. Daniel Funke notes, “Prosecutors argued that allowing an exception for hunting-style weapons would effectively eliminate the prohibition on minors carrying weapons. But in this instance, Schroeder dismissed the charge, saying he had a ‘big problem’ with the state statute (https://politifact.com/factcheck/2020/aug/28/facebook-posts/did-kyle-rittenhouse-break-law-carrying-assault-st).
Here is what a fact check of the evidence by Funke at Politifact, found that disputes Schroeder’s decision.
- “In Wisconsin, it is legal for adults to carry firearms in public without a license if the gun is visible. However, to open carry, you must be at least 18 years old.”
- “Wisconsin law stipulates that ‘any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.’ On Aug. 27, prosecutors charged Rittenhouse [among other charges] with a misdemeanor count of possession of a dangerous weapon under the age of 18, according to court records.”
- “John Monroe, an attorney who specializes in gun rights, told the Milwaukee Journal Sentinel that there’s an exception for rifles and shotguns, which is aimed at letting children ages 16 and 17 hunt, that could apply. But Rittenhouse wasn’t in Kenosha to hunt.”
“Trial arguments and testimonies took place between November 2 and 15, 2021, in Kenosha County Courthouse, according to Wikipedia.
“After opening arguments, jurors were shown multiple video recordings of the events. Video footage recorded shortly before the shooting showed Rosenbaum confronting the armed men, after one of them pointed a gun at him, and shouting ‘Shoot me, nigger!’, before several protesters rushed to calm him down. Two witnesses testified having seen Rosenbaum behave violently and yell before approaching Rittenhouse and trying to take the teenager’s rifle. A former marine testified that Rosenbaum had taunted him and other armed men before the shootings; he also said that he did not consider Rosenbaum a threat. A witness who said he had spoken with Rittenhouse after the shooting testified that Rittenhouse was nervous, pale, and sweating, repeatedly saying “I just shot someone.” Three more witnesses, including a Kenosha police officer, testified regarding the claim that Rittenhouse was acting in self-defense. The prosecution questioned how Rittenhouse would feel threatened while holding a rifle, and described him as an armed threat.
“Grosskreutz testified that when he approached Rittenhouse and put his hands in the air, he believed he saw Rittenhouse re-rack his rifle,” which to Grosskreutz “meant that [Rittenhouse] pulled the trigger while [Grosskreutz’] hands were in the air, but the gun didn’t fire.” Grosskreutz then assumed that Rittenhouse “wasn’t accepting [Grosskreutz’] surrender” At this point, Grosskreutz decided to “close the distance” to Rittenhouse and to try “non-lethal” methods of either “wrestling the gun” or “detaining” Rittenhouse. He further testified that he was ‘trying to preserve [his] own life’ but ‘was never trying to kill’ Rittenhouse’” He then “moved closer to Rittenhouse, unintentionally pointing his handgun at Rittenhouse, after which Rittenhouse shot him.”
The jury began deliberating on November 16 and, after 25 hours over four days reached a unanimous not-guilty verdict on all charges on November 19.
Some effects of the Rittenhouse case
The further perversion and use of “self-defense”
Ronald Sullivan is Professor of Law at Harvard Law School. He challenges the contention that Rittenhouse killed two people and wounded a third person in self defense, as the concept is known traditionally (https://counterpunch.org/2021/11/22/rittenhouse-verdict-flies-in-the-face-of-legal-standards-for-self-defense).
“The Wisconsin jury believed Rittenhouse’s claims that he feared for his life and acted in self-defense after he drove about 20 miles from his home in Antioch, Illinois – picking up an AR-15-style semi-automatic rifle in Kenosha – in what he claimed was an effort to protect property during violent protests.” In delivering the verdict, the “jury decided that Rittenhouse’s conduct was justified, even though the prosecution argued that he provoked the violent encounter and, therefore, should not be able to find refuge in the self-defense doctrine.” Prosecutor Thomas Binger made this point in his closing argument: “When the defendant provokes this incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.”
Generally, Sullivan points out, “The law of self-defense holds that a person who is not the aggressor is justified in using deadly force against an adversary when he reasonably believes that he is in imminent danger of death or serious bodily injury. This is the standard that every state uses to define self-defense.” Sullivan argues that there are five elements of self defense. The defense attorneys were able to stretch the meaning of the law enough so that the legal meaning of self-defense was replaced in the jury’s deliberations by the concept of “beyond a reasonable doubt.”
“First, the use of force must be proportionate to the force employed by the aggressor. If the aggressor lightly punches the victim in the arm, for example, the victim cannot use deadly force in response. It’s not proportional.
“Second, the use of self-defense is limited to imminent harm. The threat by the aggressor must be immediate. For instance, a person who is assaulted cannot leave the scene, plan revenge later and conduct vigilante justice by killing the initial aggressor.
“Third, the person’s assessment of whether he is in imminent danger of death or serious bodily injury must be reasonable, meaning that a supposed ‘reasonable person’ would consider the threat to be sufficiently dangerous to put him in fear of death or serious bodily injury. A person’s own subjective view of this fear is not enough to satisfy the standard for self-defense.
“Fourth, the law does not permit a first aggressor to benefit from a self-defense justification. Only those with ‘clean hands’ can benefit from this justification and avoid criminal liability.
“Finally, a person has a duty to retreat before using deadly force, as long as it can be done safely. This reaffirms the law’s belief in the sanctity of human life and ensures that deadly force is an option of last resort.”
In the end, despite the letter of the law, “The prosecution was unable to prove beyond a reasonable doubt that Rittenhouse was not reasonably in fear for his safety.” The fourth element appears particularly relevant. Rittenhouse was “a first aggressor” by coming armed to the scene and illegally armed at that. He fits the definition of a vigilante.
The making of this “hero” glorifies vigilante violence
Meridith McGraw delves into how the Right has been lionizing Rittenhouse as a hero (https://politico.com/news/2021/11/19/the-lionization-of-kyle-rittenhouse-by-the-right-523054). She writes: “A wide swath of conservatives had turned his case into an example of a social justice system run amok and Rittenhouse himself into an avatar of Second Amendment virtuosity. They treated the trial outcome as vindication, perhaps divine.” She continues.
“Since Rittenhouse’s arrest, legal defense funds have been formed in his name, right-wing commentators have blasted media coverage for allegedly mishandling facts of the case, memes depicting Rittenhouse as a hero — or even Captain America — have cropped up on Twitter, and T-shirts have been made with the silhouette of Rittenhouse shooting his gun with the words, ‘Don’t Tread on Me,’ and ‘Free Kyle.’ Florida Republican Rep. Matt Gaetz offered Rittenhouse an internship in Congress if acquitted.”
McGraw cites Republican strategist Gregg Keller who said he could see a future in which Rittenhouse becomes a featured speaker at the conservative confabs where activists congregate…. I think there will be every effort made to turn him into conservative hero.”
An Economist/YouGov poll cited by McGraw found that that Rittenhouse is become a part of the country’s political polarization, with 76 percent of Democrats believing Rittenhouse should have been found guilty of homicide, while 65 percent Republicans did not. “Fox News commentators like Tucker Carlson and Sean Hannity have dedicated nightly monologues to blasting media coverage of the Rittenhouse trial and defending the teen.”
A role model?
In an article for The Atlantic, David French adds the following observations (https://theatlantic.com/ideas/archive/2021/11/kyle-rittenhouse-right-self-defense-role-model/620715). “The law gives even foolish men the right to defend their lives. But an acquittal does not make a foolish man a hero. A political movement that turns a deadly and ineffective vigilante into a role model is a movement that is courting more violence and encouraging more young men to recklessly brandish weapons in dangerous places, and that will spill more blood in America’s streets.”
George Chidi at the Intercept voices similar concerns (https://theintercept.com/2021/11/19/kyle-rittenhous-acquitted-trial-ahmaud-arbery). “Here’s the argument that the jury couldn’t hear: In exonerating Rittenhouse, the jury has given license to every violent extremist in America to arm themselves and look for trouble amid their political opponents, wherever they might be.” He continues: “A body count begins today with this verdict. Every time a Proud Boy or a neo-Nazi opens fire at a Black Lives Matter rally or its equivalent in the future, they will have Rittenhouse’s defense on their lips.
The Washington Post Editorial Board concludes an editorial on Rittenhouse’s acquittal with the following thoughts.
“The worst outcome here would be for other hapless young men to think it is okay for them also to strap on weapons and play vigilante. Mr. Rittenhouse is innocent in the eyes of the law, but the fact remains: Had he not gone to Kenosha, the two people he killed would be alive today. And the ease with which, at the age of 17, he could get his hands on what amounts to a weapon of war underscores how ludicrous and lax are the gun laws in this country” (https://washingtonpost.com/opinions/2021/11/19/kyle-rittenhouse-verdict-editorial).
What did Rittenhouse accomplish?
Ronald Sullivan offers an answer. “He didn’t impose order. He didn’t stop a riot. He left a trail of bodies on the ground, and two of the people he shot were acting on the belief that Rittenhouse himself was an active shooter. He had, after all, just killed a man” (https://counterpunch.org/2021/11/22/rittenhouse-verdict-flies-in-the-face-of-legal-standards-for-self-defense).
Buttresses the right-wing endorsement of unregulated gun ownership
We live in a society in which gun ownership has almost sacred meaning. For decades since the early 1970s, opponents of gun regulation, most prominently the National Rifle Association (NRA), have used their political influence to foster a one-sided interpretation of the Second Amendment to keep the federal government and many states and local governments from adequately regulating access to guns (gun ownership) by private citizens.
On this point, Thomas Gabor, who has studied gun violence and policy for over 30 years in the U.S. and other countries, captures the uncompromising position of the NRA and its considerable allies as follows: “…those viewing gun ownership as an inalienable right often see this right as an absolute and will yield little ground regardless of the annual death toll or other evidence pointing to the harm produced by widespread gun ownership” (Confronting Gun Violence in America, p. 263). New York Times reporter Greg Weiner illustrates this retrograde viewpoint, reporting on a speech given by Wayne LaPierre, leader of the NRA, at the recent Conservative Political Action Conference in March 2018. Here’s some of what Weiner reported.
“According to this conception, rights are zones of personal autonomy where the individual owes no explanation and the community has no jurisdiction. This manner of thinking about rights is a serious barrier to reasonable regulations of firearms. The N.R.A. ritually claims the mantle of the Constitution, but the American founders who framed it had a far richer view in which individual rights were subject to considerations of the common good.” (Source: https://www.nytimes.com/2018/02/28/opinion/wayne-lapierres-unconstitutionalism.html?_r=0). For a recent summary of the Supreme Court’s views on the Second Amendment, go to: https://law.cornell.edu/wex/second_amendment).
Gabor maintains that a reasonable position on gun rights is that they must be balanced with public safety concerns. He states his position, along with other reasons, writing that “[g]un ownership can be a right while every effort is made to ensure that those who pose a risk to public safety cannot easily obtain them” (Confronting Gun Violence in America, p. 32).
U.S. leads in gun ownership
But there is little balance on gun ownership in the U.S. One glaring example is that there are more firearms in the hands of private persons in the U.S. than in any other country. CNN reporters Kara Fox, Krystina Shveda, Natalie Croker and Marco Chacon cite evidence from the Switzerland-based Small Arms Survey (SAS) and other sources
They report that “[t]here are 120 guns for every 100 Americans” and that
SAS researchers estimate that Americans own 393 million of the 857 million civilian guns available, which is around 46% of the world’s civilian gun cache.” The CNN journalists also refer to an October 2020 Gallup survey which found that about “44% of US adults live in a household with a gun, and about one-third own one personally.” The U.S. leads the world in gun-related violence, homicides, and suicides.
The NRA is hardly alone.
The Republican Party favors unregulated gun ownership laws
Bob Ortega pens an article for CNN on how Republican fear of unlikely federal gun-control measures is leading to raft of state laws
He reports, as an example, that Brandon Steele, a second-term Republican in West Virginia’s House, has “worked hard this year to get his colleagues to pass his ‘Second Amendment Preservation Act.’ It seeks to bar state or local police from enforcing new federal gun restrictions the Biden administration might adopt.” He is doing this despite the fact that he “himself concedes he doesn’t see significant new federal restrictions getting passed anytime soon.” Indeed, as of December 2021, the Biden administration has not gotten anywhere in pushing for firearms regulation.
All the while, gun-rights groups and politicians across the country are “ginning up fears that Biden wants to, as Texas Republican Sen. Ted Cruz put it, ‘erase the Second Amendment,’ and come to people’s homes and take away their guns.” Ortega continues:
“GOP lawmakers in at least 17 states have introduced bills this year taking aim at possible federal gun restrictions, a CNN review has found. Nine of those states signed new laws that take a page from the immigration sanctuary movement (which limited state and local police from helping with federal immigration enforcement), by barring local and state police agencies from helping enforce any new federal gun laws. And two states, Missouri and Arizona, enacted measures that conflict with existing federal gun laws in ways that prosecutors tell CNN already are making it harder, or risk making it harder, to investigate gun crimes.”
According to Alexandra Filindra, a political science professor at University of Illinois, Chicago, who studies gun politics, disinformation and social media, this narrative is part of an ideological system, [and believe] that the other side — in this case, the Democrats — are devious and intent on taking political rights away and imposing a socialistic tyranny.”
Ortega gives the following examples. Top of FormBottom of FormLaws being considered in Missouri and Arizona “have the potential to undermine present-day law enforcement investigations. Missouri has already adopted its version of the “Second Amendment Preservation Act” in June. The law “seeks to nullify any federal gun laws that tax guns, ammunition or accessories; that register or track firearms or firearms ownership; or that would confiscate or forbid the ownership, use, or transfer of guns by ‘law-abiding citizens.’ It says no state or local officers or officials ‘can have authority to enforce or attempt to enforce’ such laws.” The Missouri law also lets “residents sue, for up to $50,000, local or state police who enforce federal gun laws that fall afoul of the act.”
It remains in a legal limbo for the time being. The city of St. Louis filed a lawsuit seeking to block the law shortly after it was passed. The Department of Justice supported that effort, arguing that under the US “Constitution’s Supremacy Clause, the State of Missouri has no power to nullify federal laws.”
Regarding Arizona, the state’s “Second Amendment Sanctuary” act, signed into law by Gov. Doug Ducey in May, applies to current federal firearms laws. It orders state and local police agencies not to enforce or cooperate with any federal measures that are ‘inconsistent with any law of this state regarding the regulation of firearms.’”
States can’t simply claim to nullify federal firearms laws that go farther than state laws, said Jonathan Lowy, chief legal counsel of the Brady Campaign to Prevent Gun Violence. If they think a law is unconstitutional, they can challenge it in court, he said. “That’s the way you do it: You challenge laws. You don’t say, ‘I’m not going to follow federal law.'”
However, Ortega points out, “legal experts across the spectrum say that while provisions in Missouri and Arizona’s laws appear to go too far, other recent acts, such as West Virginia’s ‘Second Amendment Preservation and Anti-Federal Commandeering Act,’ are likely to survive legal challenges. Those measures rely on what’s known as the “anti-commandeering” doctrine, which holds that the federal government can’t make state or local authorities enforce federal regulations on its behalf.”
Ortega quotes Eric Ruben, an assistant professor of law at Southern Methodist University and a fellow at the Brennan Center for Justice, a progressive policy think tank, who told him, “It’s perfectly constitutional for state officials to opt not to cooperate with federal immigration enforcement or federal gun enforcement.”
The trend is ominous.
Filindra, the political scientist cited by Ortega, told CNN that “the gun-rights narrative has been shifting, from a focus on using guns for self or home protection, to ‘the idea that citizens have a right to arms as a check on government, and that without that, the franchise is insecure … if the voting box is insufficient to guarantee our rights, we have the ammo box.’ In this narrative, she said, ‘threats to gun rights are existential threats to democracy,” or an authoritarian, autocratic perversion of democracy.
The Republican Party and violence
Paul Waldman reports on this connection (https://washingtonpost.com/opinions/2021/11/12/republican-party-violence-problem).
Waldman gives examples of events and controversies in which there “is the belief that liberals are so wicked that violence and the threat of violence are reasonable responses to the possibility of them getting their way. Right along with that belief is a fantasy, that of a man (almost always a man) who rather than being an ordinary schlub at the mercy of a world in which he has no power is actually bursting with testosterone and potency, someone who can and perhaps should become a killing machine.” Here are Waldman’s examples.
- “In new audio released by Jonathan Karl of ABC News, Donald Trump is asked about his supporters chanting ‘Hang Mike Pence!’ on Jan. 6 as they rampaged through the Capitol in search of the vice president. Trump was unconcerned, both because he thought Pence was ‘well-protected’ and because the protesters were justified in their rage: ‘It’s common sense’ that Pence should have attempted to overturn the results of the election so Trump could remain president, he said, so the rioters’ pursuit of Pence was understandable.”
- “And of course, they were looking for Pence because Trump himself told them that the vice president should be the focus of their anger: As he watched rioters break into the Capitol on television, Trump tweeted that ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.’ Ever since, Trump has tried to recast that assault not as an attack on American democracy but as a legitimate response to him losing the election.”
- “In other news, members of the House are debating what to do about Rep. Paul A. Gosar (R-Ariz.), who recently tweeted an animated video in which he is depicted killing Rep. Alexandria Ocasio-Cortez (D-N.Y.). Gosar’s defense is that the video was merely a symbolic representation ‘of a battle between lawful and unlawful policies.’”
- “And if you’re a Republican who does so much as vote for a bipartisan bill to bring infrastructure spending to your district, you can expect death threats. The quickest way for Republican candidates to demonstrate their bona fides is by shooting guns in an ad.”
- “That’s the story of the Jan. 6 rioters, who believed they could break down doors and smash windows and the American system of government would bend to their will.”
- “It’s Rittenhouse’s story, too: When you go to a protest with a rifle, you’ve cast yourself as a potential killer in a righteous cause, and a killer was what he became. He’s now being cheered on by all those who stockpile weapons and say our country is headed for a civil war.”
- “His most ardent supporters absolutely love that fantasy of Trump as someone who dishes out violence to their enemies. Check out the wares sold outside Trump rallies, and you’ll see him transformed on T-shirts and posters into a muscle-bound warrior wielding a rifle; if he isn’t Photoshopped onto the glistening torso of Sylvester Stallone circa 1985, he’s riding a velociraptor while firing a gun.”
All in all, “Republicans encourage those violent impulses and apocalyptic beliefs, figuring that they can be exploited without spinning out of control.”
Unlikely to be contained
Political scientist Anthony Dimaggio thinks that the Republican narrative will spin out of control, writing as follows. “A dangerous precedent has been set in this ruling, empowering vigilantes who believe they are deputized to enforce ‘the law’ against perceived political enemies”
(https://counterpunch.org/2021/11/24/vigilantes-on-parade-rightwing-extremism-and-the-threat-of-national-implosion). He argues that we are now in a situation where such individuals “feel empowered to commit murder and rationalize post-hoc that it was in ‘self-defense’ because they ‘felt’ endangered, regardless of whether their fears were rational, or based on paranoia, bigotry, and a commitment to fascist vigilantism.” Here is what Dimaggio foresees.
“The consequences of this ruling for social movement protests are dire. There is a very real and rising threat that vigilantes will show up at other left-oriented protests in coming months and years, feeling they have carte blanche to ‘police’ the events however they see fit, and that if they engage in violence, it will simply be in ‘self-defense’ against those who resist their aggression. The concern for violence grows when we consider that there are likely to be large protests come the 2024 presidential election, with the looming efforts from Trump (or another Trump-style frontrunner) and Congressional and state Republicans, who are likely to try and nullify majority votes in swing states if they favor a Democratic candidate based on fictitious claims of ‘voter fraud.’ If there are large protests by progressive, left-leaning, and Democratic supporters, there is reason to worry about the potential for violence if rightwing vigilantes convince themselves they must act to fight Democratic voter fraud, and if they believe they’ve been informally deputized to do so by the courts.”
The right-wing movement to make gun ownership unregulated is supported by Republican officials at all levels of government, by the NRA, by swaths of the corporate community and wealthy advocates and opportunists, by right-wing media, by the great majority of Republican voters, and by a host of expanding extremist militias. On the latter, the Southern Poverty Law Center is tracking “more than 1,600 extremist groups operating across the country” (Hate and Extremism in 2001).
But the promotion of unregulated sale and ownership of guns and the seeming acceptance of violence by their supporters (“heroes”) aimed at enemies are only part of what Republican and their supporters are undertaking. They are also undermining voter rights in state after state, marshalling forces with Christian Nationalists to eliminate a woman’s right to reproductive choice, pushing for a closed border in the southern parts of the U.S., mobilizing to cleanse public education of the country’s racist history or anything that they deem unacceptable.
This list goes on. Supporters at the local state and local level to disrupt the meetings of boards of education.
They continue to deny or downplay climate change. In the U.S. Congress, they are using the rules to obstruct the passage of Democratic initiated legislation on voting rights, “social” infrastructure, and anything that may benefit Democrats.
This all adds to a major assault on democracy. This right-wing, vision with all its anti-democratic elements, will become a nightmarish reality in the elections of 2022 and 2024 unless Democrats and Independents are successful in their many efforts to educate and mobilize voters. If they fail, the violence that Republicans and their allies have abetted may tragically serve as a significant factor in moving the society toward a one-party, authoritarian state in which the only “truth” is the one they promulgate, the only law is what they sanction, where critical thinking is squelched, inequality rises to new heights, racism intensifies, and the prisons fill up.