Archives for March 2022

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Lessons of the Rittenhouse Trial

By Everett Baudean, Esq.

Now that it has been a few months since the verdict in the Kyle Rittenhouse trial, I have had time to both collect my thoughts and to discuss the trial ad nauseum with friends and colleagues. I even had the luxury of teaching a self-defense law seminar for US Law Shield the night before the verdict was released, and a week before that I taught one while the trial was ongoing. There was no shortage of relevant points to be made about the facts of the case and how they fit in with the law. Even though I’m not a Wisconsin lawyer, many of the legal elements are virtually the same, and having a nationally-televised trial to refer to was very helpful in explaining how things may play out in real life.

Entire books could certainly be written about this trial. It was a long one with a lot to cover, especially if you look at the media coverage and internet discussion that went on for over a year before the trial actually started. A common refrain I heard during the trial was that “the right to self-defense itself is on trial,” but I don’t necessarily agree with that. A decision of one state trial court can’t possibly have such sweeping implications. I also can’t necessarily agree that this case “should never have gone to trial” or that it was “the most clear cut self-defense I’ve ever seen” as I’ve read online numerous times.

While I do think that the jury reached the correct result and that Kyle was acting in lawful self-defense, there were obviously some things about the case that made a trial appropriate. It is important to remember that the videos and media coverage that we all saw are not the same as “all of the evidence” or even necessarily the relevant evidence for self-defense. People had a lot of questions about what happened that night, and one point of a trial is to sort all that out with some semblance of fair procedure (though whether the procedure of this trial ended up being completely fair is debatable). If you strip away all of your preconceived notions about self-defense and the inevitable involvement of politics in everything before, during, and after the shooting, and if you look at a trial as a means of determining truth, it is easy to see why it was necessary and important to have a trial.

As an attorney and concealed carry instructor, I am grateful that we did have this trial, as I think there are a few major lessons that we should all learn from this, both practically and legally. First, there are many relevant things we can learn about self-defense and its strategies from what happened to Kyle in the field. And, perhaps more importantly, we have learned a great deal about how trials like this can go down. While this was by no means the first nationally televised trial involving a hotly debated self-defense shooting, it has the distinction in my mind of showcasing basically all of the things that we worry can happen to us if we end up on trial, all rolled into one.

I’ll break down the analysis of what I consider the most important lessons into two categories: the practical and the legal. By practical, I mean the lessons that we should carry forward with us into the practice of carrying guns, whereas the legal will deal with what we may expect in the aftermath of a shooting and how we should comport ourselves in that aftermath to hedge against those legal pitfalls.

In terms of the practical, I think one of the more interesting tactics the prosecution tried to use in the trial was to make the very act of openly carrying a so-called “assault style” rifle, specifically under the tense circumstances of an ongoing riot, an act of provocation in itself. Generally, if you provoke a situation, you don’t get to claim self-defense. While I think that this argument was legally unsound, and I think the jury was correct to reject it, I don’t necessarily think that the judge was wrong to allow the prosecutor to at least make this argument, overruling the defense’s objections to the same.

To those of us who carry guns, the idea that lawfully carrying a gun in itself might be provocation is a frightening idea. As I said, the jury was right to reject it. The idea that defending yourself with a gun could, at any time, be unlawful if the very act of having brought a gun counts as provocation would be a ridiculous catch-22. But when it is open carry rather than concealed carry, and when it is under circumstances of high tension as in this case, it isn’t quite as ridiculous of a theory.

Imagine for a moment that the people who Kyle shot were other guys like Kyle himself, out there and armed, specifically for the purposes of stopping violence. Kyle shot the first person, Rosenbaum, after a gunshot can be heard nearby. Had Rosenbaum been a verifiably good person, had he not made previous threats against Kyle, and had he legitimately believed that Kyle had fired that shot at some innocent person, it would not be unreasonable for him to do what he did in trying to take the gun from Kyle. That does not mean that it would not have still been self-defense for Kyle to shoot him, if Kyle still believed that he was in danger of being killed, and if it was just a misinterpretation by Rosenbaum that Kyle was a threat.

Similarly, assume that Gaige Grosskreutz, the man with the Glock pistol who Kyle shot in the bicep, had been lawfully carrying that gun. If we change a few facts around and say that his concealed handgun permit hadn’t been expired, and that he had been walking around just like Kyle, volunteering to render first aid (as he also claimed that he had been doing), how would that change the situation? Again, Kyle would still have been acting in self-defense under the bare facts that he knew at the time. But it is also possible, if you believe Grosskreutz’s testimony, that he thought he was pulling that gun on Kyle in defense of himself and others. Again, if you take everything you now know about Grosskreutz out of the analysis, he could have easily been any one of us – carrying a concealed handgun and believing that Kyle was an active shooter.

To reiterate, this doesn’t mean that Kyle would not still have been acting in self-defense. What this points out is that, in a large-scale and chaotic situation like a riot, it seems possible that everyone might be acting in self-defense. As self-defense is based on what the shooter believes to be reasonable and apparently necessary to prevent death or great bodily harm, it is easily possible that small mistakes of fact could lead everyone to think that they are being reasonable. In that case, it wouldn’t mean that anyone was committing a crime, but it would mean that anyone shot would be a pure tragedy.

This is something that is often discussed when it comes to concealed carry and self-defense in mass-shooting scenarios. How do you know who is a good guy and who is a bad guy? If you hear shots and, in the chaos, draw your pistol on someone you see holding a gun, you can’t assume that person fired the shots. After all, there you are, standing and holding a gun yourself. Open carry, especially of a rifle during a riot, makes this even more complicated, as it is more difficult to determine who is who, who has fired shots, and whether or not someone is holding their gun in a threatening posture or not.

So while the assertion that just bringing the gun amounted to provocation failed, I do think it is important for us to consider where that line would be. In a chaotic situation like a riot, especially if you deliberately go into the situation, it is critical to be on your highest alert. Not just high alert for how other people may be acting and appearing to be threats, but also on high alert for how you are acting or how you may appear to be a threat, even if by mistake. I think we can all agree that, if you go to a riot to defend a business, it would be best to stay put at that business. Even if it becomes appropriate to walk around, Kyle also made the mistake of becoming separated from the other armed man he was walking with. After all, he testified that Rosenbaum’s threat was that he would kill any of them if he caught them alone, and this threat is one reason he felt deadly force was necessary. Still, if that is the case, it was a bad mistake to end up getting caught alone.

Again, none of this means that I don’t believe that Kyle was acting in self-defense. I believe that he was, based on the evidence, and the jury reached the right decision. But it still brings up a lot of important issues and hypotheticals, as a few different facts could have changed the outcome. A few different choices could have led to the shootings being avoided entirely, which is always the goal. It is possible to believe that Kyle was 100% justified in his actions, but to also recognize that there are lessons to be learned and mistakes that were made. Acquittal is great, but never having to go to trial is better, and never having to be involved in a shooting at all is best.

Moving on to the legal side of things, I think this is another place that we learned a great deal. Prior to this trial, “what the prosecution will use against you” was a very common topic of discussion in the self-defense community. Would they interpret your choice of gun as criminal intent? Your choice of ammunition? Gun modifications? Your training? Your lack of training? Your politics? Your lifestyle? Your social media posts?

Before this trial, this discussion was always much more speculative. There were limited examples to be found, but they were piecemeal. There might be one case here or there where one of these hypothetical factors was argued. Or others, such as the shooting of Daniel Shaver, where the gun modification was part of the news of the shooting but was excluded as evidence in the trial. In any event, the axiom that the prosecution will make every ridiculous argument under the sun was common, but the concrete proof of that actually happening was much less so.

This trial, on the other hand, seemed to have literally all of it. It was most evident when Kyle himself was on the stand. It was as if both the prosecution and the defense had read ALL of those myriad online discussion threads, and both sides vowed to play those hypotheticals out in real life. Kyle’s testimony was, on the whole, very well delivered. I was impressed with it, especially from an 18 year old kid. But it was also very predictable for anyone who has been a part of these kinds of discussions, and it followed the usual “script” to a T: “I didn’t shoot to kill, I only shot to stop the threat,” et cetera. In essence, we got to see the most common recommendations for handling these situations actually implemented at trial.

And on the flip side, the prosecution left no straw un-grasped at. As I said before, it was as if they read every speculative discussion thread on what the prosecution in such a trial may try to argue, and just copy/pasted that list as the outline of their oral argument. They also had no real concern for truth in these arguments, only appearance. Further, they didn’t seem to have much of a concern for consistency in their argumentation, whether with the facts or the law. We saw, for example:

  1. A disgusting attempt to use Kyle’s exercise of his 5th Amendment rights against him, which elicited a wrathful response from the judge.
  2. The argument that the choice of gun implied criminal intent. However, this was presented against the alternative of a handgun, with absolutely no apparent consideration of the fact that handguns have a higher age limit for purchase than long guns. I couldn’t tell if this was deliberately meant to mislead the jury, or if the prosecutor simply hadn’t even thought the argument through.
  3. The argument that the choice of ammunition implied criminal intent. However, this is usually more of a concern people have with carrying hollow point ammunition. This case shows that it probably doesn’t matter what ammo you have, a misleading argument will still likely be made about it. The prosecutor in this case even tried to talk about the differences between FMJ and JHP ammo, seemingly just to describe the “explosive” effect of JHP ammo for shock value or to confuse the jury, as that isn’t even what Kyle had in the gun. This line of questioning was eventually shut down, fortunately, as it became clear the prosecutor was trying to testify through Kyle, who said multiple times that he was not knowledgeable about different ammunition types.
  4. An attempt to use that the gun had a sling on it (of all accessories) as an argument against self-defense against an unarmed attacker, as it would make Kyle harder to disarm.
  5. An attempt to present evidence of Kyle being photographed with a T-shirt saying “Free as F***” as evidence, somehow. This was fortunately excluded, but it isn’t clear that such evidence would always be excluded in every trial, especially if the prosecution believes political leanings may have motivated the shooting, which seems to be more and more likely every day.
  6. A showing of Kyle’s TikTok account name “4doorsmorewhores” seemingly just to make him look like a bad person, which strains at admissibility, but that Kyle had the rifle in his profile picture didn’t help.
  7. And last but not least, an attempt to link playing first-person shooter video games to an intent to commit premeditated murder for similar thrills.

This is, of course, only an illustrative list of the bad arguments that stood out to me, as they’re ones that the self-defense community has always expected to face in such a situation. In the hours and hours of testimony, there were many other things that were argued as well. Fortunately, it seemed obvious to most people watching and commenting on the trial, even those who supported a guilty verdict, that the prosecution’s arguments were poorly crafted. That is the silver lining of the case – we have seen that a prosecutor absolutely will try to hold everything against you, no matter how stupid, but that this can just as easily backfire on them. That appears to be what happened here. The more strained the arguments became, the more people lost confidence in the State’s case. I think that, had their cross examination been more focused, it would have made their case seem less weak.

On the whole, it is now clear that the correct result was reached in this case, despite the shenanigans. While it is frightening to see all of the feared tactics employed by the prosecution, it is at least comforting that these tactics didn’t seem to actually work when applied, at least not in this case. It is also good to see the usual advice on how to testify about a defensive shooting (if you choose to testify, as in this case) successfully used. Still, every case is different, and a potential future defendant may not be so lucky. I don’t think anyone should be approaching this situation as the anti-gun articles fear – as a permission slip to shoot people under similar circumstances in the future. I think it would only have taken a few different facts for the verdict to change, and that the pro-gun people arguing that this is the “most clear cut case of self-defense they’ve ever seen” are clearly admitting that they have not seen very many.

As we now all turn to watch what happens with the Chad Read shooting, which seems like a much more uphill battle for a self-defense claim, I think it is important to put politics aside and reflect on the Kyle Rittenhouse case. There are many lessons we can learn from it, that the shooter of Chad Read should have learned from it. Unfortunately, it now seems like Kyle will be forever embroiled in politics, and that his life will be forever lived in the shadow of something that happened when he was only 17. Whether the rabid media coverage helped or hurt his case is anyone’s guess, and I’m not sure if I would want such coverage if I were in a similar situation. I think we can all agree, however, that there’s no way he could have paid these legal fees without the public interest in the case. As an armed citizen yourself, you can’t guarantee you’ll get that kind of public support, but fortunately there are many options for self-defense insurance these days, such as U.S. Law Shield. People can debate whether that kind of insurance is truly necessary or not, but if you think you’d ever deliberately head into the area of a riot to defend a business, that would absolutely justify buying coverage.