Kyle Rittenhouse, previous owner of a Smith & Wesson M&P15

[Tiredretiredlawyer]

https://law.justia.com/codes/wisconsin/ ... on-939-48/

2019 Wisconsin Statutes & Annotations
Chapter 939. Crimes — general provisions.
939.48 Self-defense and defense of others.
Universal Citation: WI Stat § 939.48 (2019)
939.48 Self-defense and defense of others.

(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Notes from the statute:

Wisconsin law establishes a low bar that the accused must surmount to be entitled to a jury instruction on the privilege of self-defense. The accused need produce only “some evidence" in support of the privilege of self-defense. State v. Stietz, 2017 WI 58, 369 Wis. 2d 222, 880 N.W.2d 182, 14-2701.

While there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person. A jury instruction to that effect was proper. State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App. 1999), 98-1739.

[raison de arizona]

the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Did Rittenhouse reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself?

[bob]

the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Did Rittenhouse reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself?

More importantly, would a reasonable person believe that?

[LM K]

I heard a talking head say that Rittenhouse will be testifying. Is that accurate? I had just turned on the TV so perhaps I didn't hear the tv correctly.

[Foggy]

Oh, please.

[tek]

the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Did Rittenhouse reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself?

He believed that miles away. Reasonably? ...

[pipistrelle]

Oh, please.

I wager he's going to try to look as baby-faced as possible and also burst into baby tears at key moments.

[andersweinstein]

the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Did Rittenhouse reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself?

More importantly, would a reasonable person believe that?

Note the first question is just the concise form used in the WI jury instructions to represent the same concept as in the second question.

I've always thought imperfect self-defense (aka unnecessary defensive force) was a very possible outcome in this case. I accept he genuinely feared for his life -- even after the shootings, he gave an interview in which he had no regrets, saying if he didn't bring his rifle he'd have been killed that night. So for those who believed the attacks didn't pose that level of threat, "unnecessary defensive force" seems to exactly describe the crime. As pointed out, it would mitigate first-degree intentional murder to second-degree murder in WI. But that's still very serious. (up to 60 years, per fierceredpanda).

But I'm unclear on whether *imperfect* self-defense is available to mitigate a charge of first degree reckless homicide. I tried to put up the panda signal about that question once before. Here's a report I found on a WI public defender's blog of a 2018 appellate court decision affirming Imperfect self-defense mitigates a charge of 1st-degree intentional homicide, not a charge of 1st degree-reckless homicide. But the blog post includes a very persuasive counter-argument (citing another decision) in the comments.

So maybe it is all or nothing on the 1st degree reckless charge -- but if he loses might have ground for appeal of the jury instructions based on the argument in that comment. I really would be interested in understanding this detail better.

[LM K]

Rittenhouse is a sniveling little POS who had no business being where he was armed with a lethal weapon. Another piece of testimony that stuck with me is when Bland talked about why he was trying to stay with Rittenhouse. It was because he saw Rittenhouse as a danger. His age, his demeanor, and the fact that he smart mouthed to an unarmed person at the gas station all concerned Balch, who testified that he tried to stay with Kyle all night and the takeaway of that testimony is that this guy believed Rittenhouse to be a danger. He didn't use those words, probably because he was trying to be more of a pro defense witness, but you have to ask yourself why he thought it so important to constantly be looking for Rittenhouse in order to stay with him. He describes that during times when he didn't know where Rittenhouse was, he was actively looking for him.

Excellent point!

Also I wanted to mention that I was appalled at Vinnie Politan's CourtTV show, and could only watch it for 5 minutes. Which pains me because I used to love his show in the old days. His description of the prosecutor's opening statement made me think we were watching two completely different trials. Politan claimed that the prosecutor said that after chasing Rosenbaum, Rittenhouse shot him in the back. That is not what the prosecutor said in opening. WHat he said was that initially Rittenhouse was chasing Rosenbaum. That is confirmed by the video. Not by the doctored video the defense put on, but the entire video that did not have that little piece removed. That was strictly done for people who are not watching the trial. The defense put on a doctored video, pushed it out to social media, so now anyone who isn't watching the trial is not getting the complete picture. After Rittenhouse chases Rosenbaum for a short while, Rosenbaum goes one way around cars while Rittenhouse goes the other way. There are words that take place that we are told by the prosecutor that we will hear testimony about. Those words angered Rosenbaum, who then comes around the cars to come back into contact with Rittenhouse. There are more confrontational words spoken by both men, after which Rittenhouse turns to run and Rosenbaum runs after him and throws the bag at him. Rittenhouse turns after hearing gun fire and he shoots Rosenbaum. Rosenbaum does make an initial lunge but never touches the weapon. He loses his balance and continues falling as Rittenhouse continues firing off shots, the lethal shot being the one that hits Rosenbaum in the back because he has fallen forward.

I'm getting so lost with new footage. I'm missing a lot of the trial due to time zone issues.

I'm sure there will be disagreement on a jury of twelve people as to whether this part was self defense. I don't believe it was. It has been established that Rittenhouse was standing right by Balch when Balch was interacting with Rosenbaum a little while before the killing. It was established that Rosenbaum had nothing in his hands other than a plastic see-through bag from the hospital. Yes, I know all the rwnj are saying he had a chain in his hands. About three hours before he encountered the men with guns, Rosenbaum briefly picked up a chain and then it was discarded long before any of the gunmen ever came into contact with him. It is not possible that any of them could have had any reasonable suspicion that Rosenbaum was armed with anything, becaues there is ample testimony that Balch and Rittenhouse observed Rosenbaum for a long time at one point and Balch had to answer "no" to every single question about whether Rosenbaum was armed, whether he harmed any other person in any way. He was shit talking to lots of people. But so was nearly everyone else at that gas station. Everyone at that gas station was shit talking each other, including Rittenhouse. Balch even testified that he told Kyle to stop that nonsense because he is going to end up escalating something if he keeps saying sarcastic things to the unarmed protesters. And that is precisely what the prosecutor intends to prove according to his opening statement. That Rittenhouse shit talked Rosenbaum and that is why Rosenbaum came from behind the car to confront Rittenhouse. From watching the video, Rosenbaum had intially stopped any chasing of anyone at the point that he veered off and went one way around the cars. IMO by Rosenbaum's movements, I believe it is likely he wouldn't have cared one whit about Rittenhouse had he not shit talked. Directly prior to that, it was Rittenhouse who was running behind Rosenbaum, not the other way around as the defense is saying. There is nothing in that video that even suggests to me that Rosenbaum even knew Rittenhouse was behind him at that point. He only turns his attention to Rittenhouse when Rittenhouse, who goes the other way around the same cars, turns around and starts shit talking according to the prosecutor who says he will be putting on witnesses to testify to that fact. And you actually see Rittenhouse turn around in the video. That seems to correspond to what the prosecutor says the evidence will show.

Yikes. Balch's testimony is really damning.

Do you have any links to the video? So much new footage has been released. No worries if you don't have links.

Edit: Formatting.

[Maybenaut]

Did Rittenhouse reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself?

More importantly, would a reasonable person believe that?

Note the first question is just the concise form used in the WI jury instructions to represent the same concept as in the second question.

I've always thought imperfect self-defense (aka unnecessary defensive force) was a very possible outcome in this case. I accept he genuinely feared for his life -- even after the shootings, he gave an interview in which he had no regrets, saying if he didn't bring his rifle he'd have been killed that night. So for those who believed the attacks didn't pose that level of threat, "unnecessary defensive force" seems to exactly describe the crime. As pointed out, it would mitigate first-degree intentional murder to second-degree murder in WI. But that's still very serious. (up to 60 years, per fierceredpanda).

But I'm unclear on whether *imperfect* self-defense is available to mitigate a charge of first degree reckless homicide. I tried to put up the panda signal about that question once before. Here's a report I found on a WI public defender's blog of a 2018 appellate court decision affirming Imperfect self-defense mitigates a charge of 1st-degree intentional homicide, not a charge of 1st degree-reckless homicide. But the blog post includes a very persuasive counter-argument (citing another decision) in the comments.

So maybe it is all or nothing on the 1st degree reckless charge -- but if he loses might have ground for appeal of the jury instructions based on the argument in that comment. I really would be interested in understanding this detail better.

That might explain why they charged reckless rather than intentional.

[RVInit]

He's going to be in big trouble if he testifies. The prosecutor is going to great pains to establish that Rittenhouse lied repeatedly to many people throughout the night. This testimony is coming from people who clearly empathize with him. And yet they are all being asked point blank questions about different things Rittenhouse said to them. Which are patent lies. If he testifies he will be hammered by the prosecution to explain all his lies. When a witness tells one or two lies maybe they can smooth that over with the jury. But he's being shown to have told multiple people multiple lies. And there is ample testimony that at least one more experienced person was concerned enough about the fact that Rittenhouse was present, with a lethal weapon, in that situation. So much so that the guy spent the whole night trying to stick by Rittenhouse's side in order to be able to step in and prevent something bad from happening. Unfortunately, they got separated at some point, and try as he might, Balch couldn't find Rittenhouse before he finally killed two people and seriously wounded a third.

And get this. Today's first witness testified that one of the items that Kyle rummaged out of the guys medical kit was some kind of bandage or item that was specifically meant for helping to staunch the flow of blood from a major wound. And we see Kyle in one of the few very clear videos stopping and gawking at the guy he just killed and running off without so much as offering help, saying I'm sorry, I'm sorry, I didn't want to shoot him, Please please let him be OK. Nothing of the kind came out of that little asswipes mouth. Just called his friend and said 'I shot someone" and ran away.

[LM K]

[Rosenbaum] was shit talking to lots of people. But so was nearly everyone else at that gas station. Everyone at that gas station was shit talking each other, including Rittenhouse. Balch even testified that he told Kyle to stop that nonsense because he is going to end up escalating something if he keeps saying sarcastic things to the unarmed protesters. And that is precisely what the prosecutor intends to prove according to his opening statement. That Rittenhouse shit talked Rosenbaum and that is why Rosenbaum came from behind the car to confront Rittenhouse. From watching the video, Rosenbaum had intially stopped any chasing of anyone at the point that he veered off and went one way around the cars. IMO by Rosenbaum's movements, I believe it is likely he wouldn't have cared one whit about Rittenhouse had he not shit talked.

Interestingly, because "shit-talking" is not illegal, it looks to me like merely shit-talking would NOT count as provocation for the purpose of bringing in the "role of provocation" considerations in WI self-defense law. It looks to me like you can shit-talk someone all you want in WI and it doesn't affect your privilege of self-defense if they attack you. The only way it would affect you is if you were doing it with the specific intention of provoking an attack so you can kill them and claim self-defense.

And yet you have asserted exactly the opposite about Rosenbaum. You've asserted that Rosenbaum was obviously dangerous because he talked shit to armed men.

[bob]

That might explain why they charged reckless rather than intentional.

My thought as well. Either due to ethical concerns or fear of losing, chose not to charge intentional homicide.

[andersweinstein]

1. I've found NO evidence that Rosenbaum was hiding from Rittenhouse before the chase began. Why do you think Rosenbaum was "hiding"?

The FBI footage shows him running off the sidewalk at an angle between parked cars. Then Rosenbaum comes out of that position after Rittenhouse passes.This was reiterated in testimony from a police officer -- the officer guessed from other video that Rosenbaum was on the passenger side of a white car at the north edge of the lot, but the defense showed the FBI video which locates on the driver's side, so in between that car and another to its left.

In fact, Rosenbaum was walking, in the middle of the street, in the same direction as Rittenhouse when the chase began. There was NO ambush.
See 16:30.

Yes the major ground video of the walk from livestreamer Koerri Elijah shows both walking in the same direction, with Rosenbaum emerging from a small fire and walking ahead of Rittenhouse, without apparent interaction, although it is possible that Rittenhouse saw Rosenbaum. At some point Rosenbaum is seen breaking into a trot to the curb at 61st, running ahead of Rittenhouse. The video pans around and loses focus on what happened as Rittenhouse reaches the lot and doesn't show the moment of interaction. But the FBI video shows their trajectories as above so clears up some of the missing detail, at least as to location of the principals.

Even in the criminal complaint, state witness Richie McGinness who was following Rittenhouse made it sound as if it was Rosenbaum who accosted Rittenhouse in some way, from which Rittenhouse juked and fled. He said Rosenbaum attempted to engage KR and tried to move closer. Since as far as we know, Rittenhouse was just walking/trotting alone and oblivious down the road, this has always sounded like a kind of "ambush". But "accost" could be a more neutral word. The "ambush" theory is a theory of why Rosenbaum ran ahead into that position between parked cars.

Seriously, Rittenhouse was in front of Rosenbaum for some time. How do you ambush someone in front of you? Why do you avoid this question?

I don't believe Rittenhouse ever got in front of Rosenbaum during the walk down Sheridan until he passed his "hiding place" (as I am calling it) between parked cars. FBI video certainly shows Rosenbaum ahead of Rittenhouse though it does not show the whole walk.

[LM K]

Yeah, that seems natural and I gather it is the standard view, it's just that the WI jury instructions include an unqualified, blanket statement in them: "If the defendant was acting lawfully in self-defense, (his) (her) conduct did not create an unreasonable risk to another." So that's the weirdness. Defense wanted only that blanket statement included, judge offered the above hypothetical and left instructions as is.

Illegally owning and using that gun raises questions about creating an unreasonable risk to others.

Why are children legally barred from owning guns? They are, because of their immaturity, an unreasonable risk to others.

[LM K]

He's going to be in big trouble if he testifies. The prosecutor is going to great pains to establish that Rittenhouse lied repeatedly to many people throughout the night. This testimony is coming from people who clearly empathize with him. And yet they are all being asked point blank questions about different things Rittenhouse said to them. Which are patent lies. If he testifies he will be hammered by the prosecution to explain all his lies. When a witness tells one or two lies maybe they can smooth that over with the jury. But he's being shown to have told multiple people multiple lies. And there is ample testimony that at least one more experienced person was concerned enough about the fact that Rittenhouse was present, with a lethal weapon, in that situation. So much so that the guy spent the whole night trying to stick by Rittenhouse's side in order to be able to step in and prevent something bad from happening. Unfortunately, they got separated at some point, and try as he might, Balch couldn't find Rittenhouse before he finally killed two people and seriously wounded a third.

And get this. Today's first witness testified that one of the items that Kyle rummaged out of the guys medical kit was some kind of bandage or item that was specifically meant for helping to staunch the flow of blood from a major wound. And we see Kyle in one of the few very clear videos stopping and gawking at the guy he just killed and running off without so much as offering help, saying I'm sorry, I'm sorry, I didn't want to shoot him, Please please let him be OK. Nothing of the kind came out of that little asswipes mouth. Just called his friend and said 'I shot someone" and ran away.

And it's one thing to lie after an alleged crime, but Rittenhouse lied his ass off before anything happened.

[LM K]

1. I've found NO evidence that Rosenbaum was hiding from Rittenhouse before the chase began. Why do you think Rosenbaum was "hiding"?

The FBI footage shows him running off the sidewalk at an angle between parked cars. Then Rosenbaum comes out of that position after Rittenhouse passes.This was reiterated in testimony from a police officer -- the officer guessed from other video that Rosenbaum was on the passenger side of a white car at the north edge of the lot, but the defense showed the FBI video which locates on the driver's side, so in between that car and another to its left.

The FBI video you believe is inconclusive? Now it's critical evidence for you?

I didn't see the FBI video until after writing this post. I based my comment entirely on ground footage.

You've asserted there was an ambush for weeks. The FBI footage was just released. So what have you been using to support your unsupported claim? Perhaps there is video footage that you've seen and I haven't. I know that that is very possible.

In fact, Rosenbaum was walking, in the middle of the street, in the same direction as Rittenhouse when the chase began. There was NO ambush.
See 16:30.

Yes the major ground video of the walk from livestreamer Koerri Elijah shows both walking in the same direction, with Rosenbaum emerging from a small fire and walking ahead of Rittenhouse, without apparent interaction, although it is possible that Rittenhouse saw Rosenbaum. At some point Rosenbaum is seen breaking into a trot to the curb at 61st, running ahead of Rittenhouse. The video pans around and loses focus on what happened as Rittenhouse reaches the lot and doesn't show the moment of interaction. But the FBI video shows their trajectories as above so clears up some of the missing detail, at least as to location of the principals.

Except earlier today you claimed the FBI video to be too unclear to use for anything conclusive.

Even in the criminal complaint, state witness Richie McGinness who was following Rittenhouse made it sound as if it was Rosenbaum who accosted Rittenhouse in some way, from which Rittenhouse juked and fled. He said Rosenbaum attempted to engage KR and tried to move closer. Since as far as we know, Rittenhouse was just walking/trotting alone and oblivious down the road, this has always sounded like a kind of "ambush". But "accost" could be a more neutral word. The "ambush" theory is a theory of why Rosenbaum ran ahead into that position between parked cars.

So, are you admitting that you have no evidence of any ambush or accosting?

Do you see why I challenge your hypotheses? Your verbage for Rittenhouse's actions compared to Rosenbaum's actions is disturbingly different.

Seriously, Rittenhouse was in front of Rosenbaum for some time. How do you ambush someone in front of you? Why do you avoid this question?

I don't believe Rittenhouse ever got in front of Rosenbaum during the walk down Sheridan until he passed his "hiding place" (as I am calling it) between parked cars. FBI video certainly shows Rosenbaum ahead of Rittenhouse though it does not show the whole walk.

The video shows no ambush. It shows no intention of ambush.

This entire time, I've been referring to the cars between which Rosenbaum was shot.

Frankly, I find your unsupported assumptions/assertions about Rosenbaum disturbing. There was no clear footage (to my knowledge) of the shooting of Rosenbaum released. (I'm catching up on footage from this week, so maybe there is now.)

You assume that someone with a criminal history is a danger at all times. You appear to be under the impression that the mentally ill are dangerous. They're not. The mentally ill are less violent than the mentally well.

Did Rosenbaum engage in physical violence at anytime? No.

Did Rosenbaum talk to armed vigilantes in a hostile manner? Absolutely.

Was Rosenbaum the only protester challenging the armed vigilantes that night? No. Protesters were confronting the armed vigilantes all over the city. Rosenbaum's behavior was consistent with others in the crowd confronting armed vigilantes.

Why do you cling so strongly to these biases? Why can't you admit that Rosenbaum's criminal history and mental health history are irrelevant to to his death?

Another question. If someone, whom you perceived as a threat earlier in the night, as I believe Rosenbaum did, was right next to you with a gun, wouldn't you grab for it if you could no longer flee? Rosenbaum was shot in the back.

Based on the evidence, isn't it possible that Rosenbaum was trying to defend himself during those 2.5 seconds that aren't captured on video? I've asked you that previously.

Please note. I make no claim of knowing what did or did not happen between Rosenbaum and Rittenhouse when they aren't visible on camera.

[Dave from down under]

We have only the lying Kyle’s word that he didn’t give Rosenbaum good cause to fear for his life…

When did Kyle flick the safety off on his illegal rifle?

[andersweinstein]

1. I've found NO evidence that Rosenbaum was hiding from Rittenhouse before the chase began. Why do you think Rosenbaum was "hiding"?

I don't at all mind addressing all these questions, but it's a lot and I've alienated folks by posting too much repetitive pro-Kyle stuff here as it is. As I get a chance I can try to address a few of them, but it will take a little time.

[Dave from down under]

2.5 seconds prior to shooting:

Kyle to Rosenbaum:
“I’m going to kill you!”
Click!

As the safety goes to off…

<yeah that is speculation, but so is the demand that people believe that Kyle was “ambushed”>

[Frater I*I]

When did Kyle flick the safety off on his illegal rifle?

That's even if he had it on. I highly doubt he was ever given proper training on how to wield an assault rifle properly.

[RVInit]

There was no ambush. The contention is that Rosenbaum went on the other side of the cars in order to ambush Ritenhouse. However, the video was CLEARLY labelled and Rosenbaum was in front of Rittenhouse at that time. How can you ambush someone when the person who you are supposedly ambushing is behind you, meaning you don't know where that person is going, so how can you possibly position yourself to ambush a person whose position you are totally unaware of. The entire reason Rosenbaum ends up turning around and coming back around to confront Kyle is because Kyle, who is on the other side of the cars himself has turned around, and testimony is expected to be presented that witnesses say he turned around for the purpose of making smart mouth comments to people who were behind him. One of which was NOT Rosenbaum. Rosenbaum is on the other side of the cars, and he comes around to face Rittenhouse after Rittenhouse starts smack talking to the unarmed protestors. That is not even close to the definition of an ambush.

I have stopped interacting with the troll because he just simply has an agenda, he has brought all the right wing nut job talking points with him and is not engaging in what I would call good faith. I am more than happy to engage with anyone who has a different take, all I ask is engagement in good faith and with respect. But his continued vomiting of talking points that completely ignore the actual testimony that has been presented is just annoying. Which is what trolls tend to love to do.

He's on mute on my screen, I don't even see his posts, and I am much better off for that. I highly recommend it, it's good for the soul.

[Dave from down under]

I’m sure he knew how to use it..

2 dead and one wounded

Of course he never should have had it.. legally, responsibly or morally…

But none of that mattered to Kyle the killer.

[Azastan]

I have stopped interacting with the troll because he just simply has an agenda, he has brought all the right wing nut job talking points with him and is not engaging in what I would call good faith. I am more than happy to engage with anyone who has a different take, all I ask is engagement in good faith and with respect. But his continued vomiting of talking points that completely ignore the actual testimony that has been presented is just annoying. Which is what trolls tend to love to do.

He's on mute on my screen, I don't even see his posts, and I am much better off for that. I highly recommend it, it's good for the soul.

Same here.

[LM K]

We have only the lying Kyle’s word that he didn’t give Rosenbaum good cause to fear for his life…

When did Kyle flick the safety off on his illegal rifle?

That is a very excellent question.