Monday, November 22, 2021

The Law of Self-Defense and Stand Your Ground


“In a two-week trial that reignited debate over self-defense laws across the nation, a Wisconsin jury acquitted Kyle Rittenhouse for shooting three people, two fatally, during a racial justice protest in Kenosha.

“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. 

The lakeside city of 100,000 was the scene of chaotic demonstrations after a white police officer shot Jacob Blake, an unarmed, 29-year-old black man, leaving him paralyzed from the waist down.

“In delivering its verdict, a Wisconsin 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. As prosecutor Thomas Binger said in his closing argument: ‘When the defendant provokes this incident, he loses the right to self-defense.’

“The Wisconsin jury disagreed, and its decision may portend a similar outcome in another high-profile case in Georgia, where three white men are on trial for the shooting death of Ahmaud Arbery after they claimed the Black man was a suspect in a rash of robberies. Like Rittenhouse, the three men claimed they were acting in self-defense.

Self-defense arguments are often raised during trials involving loss of life. Juries are then asked to determine whether a defendant’s conduct is justified by principles of self-defense or whether the offender is criminally liable for homicide.

“Complicating matters is that each state has its own distinct homicide and self-defense laws. Some states observe the controversial ‘stand your ground’ doctrine, as in Georgia – or not, as in Wisconsin – further clouding the public’s understanding on what constitutes an appropriate use of deadly force.

Five elements of self-defense

“As a professor of criminal law, I teach my students that the law of self-defense in America proceeds from an important concept: Human life is sacred, and the law will justify the taking of human life only in narrowly defined circumstances. 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.

“To determine whether this standard is met, the law looks at five central concepts: 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.

‘Stand your ground’

“The proliferation of states that have adopted ‘stand your ground’ laws in recent years has complicated the analysis of self-defense involving the duty to retreat. Dating back to early Anglo-American law, the duty to retreat has been subject to an important exception historically called the ‘castle doctrine’: A person has no duty to retreat in his home. This principle emerged from the 17th-century maxim that a ‘man’s home is his castle.’

“The ‘castle doctrine’ permits the use of lethal force in self-defense without imposing a duty to retreat in the home. Over time, states began to expand the non-retreat rule to spaces outside of the home. ‘Stand your ground’ laws came under national scrutiny during the trial of George Zimmerman, who was acquitted in the 2012 shooting death of Trayvon Martin.

“In that case, Martin, 17, was walking home after buying Skittles from a nearby convenience store. At the time, Zimmerman was a neighborhood watch volunteer who called police after spotting Martin. Despite being told by the 911 operator to remain in his car until officers arrived, Zimmerman instead confronted Martin.

“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. Zimmerman was the sole survivor; Martin, who was unarmed, died from a gunshot wound.

In the Zimmerman case, for example, under traditional self-defense law, the combination of first-aggressor limitation and duty to retreat would not have allowed Zimmerman to follow Martin around and kill him without being liable for murder. But, in a stand-your-ground state such as Florida, Zimmerman had a lawful right to patrol the neighborhood near Martin’s home. As a result, during his trial, all Zimmerman had to prove was that he was in reasonable fear of death or serious bodily injury.

“In Wisconsin, Rittenhouse was also able to put in evidence that he was in reasonable fear of death. ‘I didn’t do anything wrong,’ Rittenhouse testified. ‘I defended myself.’ The prosecution was unable to prove beyond a reasonable doubt that Rittenhouse was not reasonably in fear for his safety. This represents a high bar for the prosecution. They were unable to surmount it.”

The Conversation: Ronald Sullivan, Professor of Law Harvard Law School


  1. “…For many who followed the case, especially on the political left, the verdict raised uncomfortable questions about the scope of self-defense laws. Mayor Satya Rhodes-Conway of Madison, Wis., called the verdict ‘deeply disturbing’ and expressed concern about the message it sent. ‘Unfortunately, this will perpetuate distrust in the justice system and further normalize gun violence,’ Ms. Rhodes-Conway said in a statement. ‘Allowing vigilantism to masquerade as self-defense is a terrible precedent.’

    “Janine Geske, a former Wisconsin Supreme Court justice who now teaches at Marquette University Law School, said the trial was an instance in which many people’s opinions about what was morally acceptable clashed with the jury’s interpretation of what the law allowed. ‘I, too, share that view that had he not brought that gun into Kenosha that day, and just come with his medic bag, we probably would not have had any deaths,’ Ms. Geske said.

    “Ms. Geske said she believed that the jurors could have defensibly reached a guilty verdict. They could have, for example, decided that Mr. Rittenhouse’s fear of death or great bodily harm was not reasonable in the situation. ‘It’s hard, because most of the victims at some point were approaching Rittenhouse,’ Ms. Geske said. ‘All those factors made it hard for the jury to be satisfied that it wasn’t a reasonable belief.’”


  2. “When prosecutors in Kenosha, Wisconsin, first brought homicide charges against Kyle Rittenhouse, many observers of the case thought the facts were cut and dry. Rittenhouse brought an AR-15 style semiautomatic rifle to a night of civil unrest on August 25, 2020, that followed the police shooting of Jacob Blake. Rittenhouse shot and killed two men, Anthony Huber and Joseph Rosenbaum, and injured a third, Gaige Grosskreutz, that night. He returned to his home in Antioch, Illinois, after the shootings, and his mother drove him to the police station in his hometown hours later.

    “Then on Friday, after nearly 26 hours of deliberations over four days, a jury acquitted Rittenhouse of all charges. The evidence and testimony presented in court over the course of two weeks, when taken together with what jurors weren't permitted to see at trial, explain how Rittenhouse's argument that he shot the men in self-defense won out:

    The prosecution's witnesses bolstered Rittenhouse's self-defense narrative:

    “Rittenhouse's attorneys argued that the teenager reasonably feared for his life when he shot and killed Anthony Huber and Joseph Rosenbaum, and injured Gaige Grosskreutz. Several witnesses who saw the killings testified that Rosenbaum was acting belligerently, threatened Rittenhouse, chased him down a street, and lunged for his rifle. Grosskreutz himself conceded that he pointed his own gun at Rittenhouse, believing he was running after an active shooter.

    Videos showed that Rittenhouse was being chased:

    “The defense narrative was further bolstered by videos from the protest showing that Huber and Grosskreutz ran after Rittenhouse after the teenager shot Rosenbaum. Rittenhouse's attorneys argued that was additional evidence that he was acting in self-defense.

    Rittenhouse took the stand:

    “It's unusual for a criminal defendant to testify in their own criminal case. The US Constitution allows people to avoid testifying, and defendants rarely want to risk folding under cross-examination. But Rittenhouse did it anyway. In emotional testimony, he said he came to Kenosha because he worked there, his father lived there, and he felt like he was part of the community. He said he wanted only to offer medical help to anyone who might need it in the chaos of the protests, and that he brought his gun only for a situation where he might need it to defend himself. Breaking down in tears, he described being chased by Rosenbaum and then shooting him...

  3. A drone video that was key to prosecutors' case was hard to parse:

    “Late in the trial, prosecutors showed the jury a video clip of the moments leading up to the Rosenbaum shooting, saying it proved that Rittenhouse had been initial aggressor who provoked Rosenbaum first. The video had been taken from a drone roughly a block away. Assistant District Attorney Thomas Binger told jurors the video showed Rittenhouse raising his rifle and pointing it at two associates of Rosenbaum: Joshua and Kelly Ziminski. Binger said the action made Rosenbaum begin chasing Rittenhouse. But Rittenhouse's hands and gun were difficult to see in the drone footage, and jurors may not have been convinced by the argument. Rittenhouse's attorneys argued that the video didn't show Rittenhouse raising his rifle, but they also requested a mistrial over the footage, saying prosecutors improperly gave them a blurrier, lower-quality version. Had they seen the higher-quality video sooner, they would have adjusted their defense strategy, the Rittenhouse lawyers said. Their mistrial motion was rendered moot by the jury's acquittal on Friday.

    The jury couldn't consider videos of Rittenhouse talking about guns:

    “Schroeder refused to allow prosecutors to show the jury unflattering videos of Rittenhouse, even as prosecutors argued they offered ‘crucial insight’ into the teenager's state of mind — a crucial element for homicide charges — and proved he viewed himself as a vigilante. The first video, as Insider's Michelle Mark reported, depicted Rittenhouse punching a girl. The second showed hooded people clutching items while rushing out of a CVS pharmacy; Rittenhouse's voice could be heard saying, ‘Bro, I wish I had my fucking AR. I'd start shooting rounds at them.’

    Jurors couldn't look at photos of Rittenhouse hanging out with far-right figures, either:

    “Rittenhouse has become something of a hero to Republican lawmakers and right-wing media figures, who say he was justified in killing anti-racism protesters. Prosecutors wanted to present photos of Rittenhouse hanging out with members of the Proud Boys, an extremist group with members that also participated in the January 6 insurrection at the Capitol. Rittenhouse wore a shirt that said ‘Free as Fuck’ and flashed a hand gesture commonly used to signify ‘white power.’ Rittenhouse's defense attorneys said Rittenhouse hadn't known the men or what the hand symbol meant, and the judge barred prosecutors from using the photos at trial.

    The judge said it was OK for Rittenhouse to have an AR-15 style gun:

    “One of the charges prosecutors brought against Rittenhouse was for possessing a dangerous weapon while under the age of 18. Close to the end of the trial, Schroeder dismissed that particular charge. The relevant Wisconsin statute forbids people under 18 years old from possessing short-barreled guns, Schroeder ruled, but the military-style weapon that Rittenhouse carried the night of the shootings, when he was 17 years old, was long-barreled. (Schroeder criticized the law as poorly written as he issued his ruling).”

    -The Insider

  4. This verdict couldn't have come at a worse time, considering that the Arbery case is being given to the jury. While the accused have no access to the news, their lawyers surely do,& it looks as if the youngest defendant is doing what I call "a Rittenhouse": took off his glasses, teary, in fear of his life, as Arbery was (naturally) trying to take the defendant's gun away.