Kyle Rittenhouse: Shooting for Self-Defense
Cynthia F. Hodges, JD, LLM, MA
“Now is the Time for All Good Men to Come to the Aid of their Country.”
~ Patrick Henry
The fateful events unfolded on the morning of Sunday, August 23, 2020, when police in Kenosha, Wisconsin, tried to apprehend Jacob Blake (29), who just happened to be African-American. He had attempted to steal a vehicle, and there was already a warrant out for him for felony sexual assault. When Blake (allegedly) reached for a knife in his car while resisting arrest, Officer Rusten Sheskey shot him seven times in the back. The suspect was left paralyzed from the waist down. In response to the shooting, angry riots broke out in the sleepy town the next day.
Late Monday evening, August 24, 2020, a violent mob comprised of Black Lives Matter (BLM) and Antifa “protestors” descended on Kenosha. They set fire to several businesses and the Community Corrections Building. Looters stole merchandise, and vandals busted up vehicles and street lights. Black Lives Matter demonstrators burned American flags while chanting “death to America” and “kill the police.” They threw fireworks and other projectiles (for ex. Gatorade bottles filled with cement) at police officers at the Kenosha County Courthouse. A terrorist hurled an incendiary device at a garbage truck, which burst into flames.
The rabble assaulted an elderly man in his 70s (known only as “Robert”) as he tried to defend his business from arson. Using a fire extinguisher, he sprayed looters who were making off with goods. A black-clad man rushed up behind him and sucker-punched him in the head. Robert collapsed - cut, bloody and with a broken jaw. Someone said, “Turn his head… he’s drowning on his blood!” The building he was trying to protect ended up being completely destroyed by fire.
Kyle Rittenhouse, a 17-year-old from Antioch, Illinois, and a supporter of Blue Lives Matter, watched as the town, just 15 miles from his house and where he worked as a lifeguard, was ravaged by rioters. He decided to leave the safety of his home, and armed only with cleaning supplies, a medical kit, and an AR-15 rifle (reportedly obtained in Wisconsin), joined a contingent of militia members in Kenosha. (10 USC §246 states "(a) The militia of the United States consists of all able-bodied males at least 17 years of age...").
On Tuesday, Rittenhouse and his compatriots set out to protect lives and property in Kenosha from the violent throngs that had wrought destruction the night before. Law-enforcement officers thanked the volunteers for their assistance, offering them bottles of water.
During the day, Rittenhouse helped clean up glass and debris from the streets, and graffiti from buildings. In an interview with BlazeTV’s Elijah Shaffer, Rittenhouse said he was there simply to protect property from the violence taking place in the city. When two injured protestors walked by, he immediately went to their aid, saying, “I’m an EMT.” Rittenhouse never mentioned politics.
That night, rioters stormed a local auto repair shop (which was owned by a Black Lives Matter supporter) and proceeded to destroy property and set cars alight. Reporter Drew Hernandez said, “… [T]he rioters were planning to burn down their ‘next car dealership.’” Rittenhouse and the other armed citizens tried to intervene and de-escalate the dangerous situation. They failed. A looter named Joseph “JoJo” Rosenbaum (36) got in Rittenhouse’s face and taunted him with, “Shoot me, n****!”
At some point that evening, Rittenhouse was separated from his group, and ran into a pack of violent Antifa members and BLMers. He fled, but the mob chased him through a war zone littered with cars with shattered windows. One assailant, later identified as Joseph Rosenbaum, threw a brick (or rock) wrapped in a plastic bag at him. Another aggressor, Gaige Grosskreutz, shot at him with a handgun. Rittenhouse spun around to see an attacker (Rosenbaum) lunge for him, trying to grab his rifle. Rittenhouse fired, shooting him in the chest. He went to help Rosenbaum, but the agitated crowd became aggressive and threatening. Rittenhouse continued to retreat, trying to make his way to a second mechanic's shop, to which police had earlier directed him.
While being pursued, Rittenhouse was hit from behind. When he turned around, he tripped and fell. His attackers swooped in for the kill. One assailant kicked him, while another, Anthony Huber, bashed him in the head with a skateboard. Grosskreutz pointed a gun at him. Others tried to disarm him. Rittenhouse fired his rifle at them from a seated position, hitting Huber in the groin, back, and hand with a 5.56mm bullet, while injuring Grosskreutz in the right bicep. Ironically, the staunchly anti-police Antifa/BLMers, who demand police defunding, screamed, “Call the police!” Seeking retribution, Black Lives Matter members have since posted Rittenhouse’s mother’s address on social media, no doubt hoping someone will take the hint to harass his family, perhaps worse. (Claims that Rittenhouse's actions were somehow racially motivated are false, as the shooting "victims" are/were all White).
It turns out that all of Rittenhouse’s attackers had criminal records. Joseph Rosenbaum (the first one killed) was a registered sex offender. He had been sentenced to 12-and-a-half years at Arizona State Prison Complex-Eyman for a sex crime involving a minor. Anthony Huber’s rap sheet included battery (he strangled somebody), domestic violence, and false imprisonment. Huber was sentenced to two years in prison. Gaige Grosskreutz was arrested and charged with felony burglary, theft, criminal trespass, and disorderly conduct. He is reportedly a member of the People’s Revolution Movement of Milwaukee, a communist organization that wants to overthrow the US government. Grosskreutz is also, apparently, a Satan supporter; his mask depicted a Satanic pentagram known as the “Sigil of Baphomet.”
Rittenhouse was taken into custody on Wednesday, August 26, 2020 at Lake County Judicial System. He was charged with multiple counts, including first-degree murder, which almost certainly cannot stand. To make a case for that, the prosecutor would have to show premeditation, i.e. that Rittenhouse somehow lured the men into attacking him so that he could kill them. To the contrary, he was justified in the use of deadly force to defend himself. Wisconsin law 939.48(1)(1) reads:
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.
America’s Founding Fathers framed the Bill of Rights (the first ten amendments to the Constitution) to protect people’s natural and inalienable rights. Such rights are described in the Declaration of Independence as being those rights endowed by the Creator. As such, they cannot be taken away. The right to self defense is one of these inalienable rights. In Blackstone's 1768 Commentaries on the Laws of England, Henry St. George Tucker declared that “the use of arms for self defense and self-preservation was among the absolute rights of individuals.”
The Supreme Court in McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) held that the right to keep and bear arms for the purpose of self-defense is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present.
The Second Amendment to the U.S. Constitution was intended to protect the individual right of the American citizen to keep and carry arms in a peaceful manner, to protect himself, his family, and his freedoms, against infringement by either state, federal, or local government. The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court held in Dist. of Columbia v. Heller, 554 U.S. 570 (2008) that the Second Amendment protects an individual's right to possess a firearm and to use that weapon for traditionally lawful purposes, such as self-defense, and is not limited to militia members. Because the Second Amendment protects the inalienable right of Americans to bear arms from infringement by state, federal, or municipal governments, any law purporting to restrict this right is unconstitutional and void. See Marbury v. Madison, 5 U.S. 137 (1803).
Several U.S. Supreme Court cases dealt with issues that may be raised in the Rittenhouse case. For instance, in Gourko v. United States, 153 U.S. 183 (1894), “A person who has an angry altercation with another person such as to lead him to believe that he may require the means of self-defense in case of another encounter may be justified, in the eye of the law, in arming himself for self-defense, and if on meeting his adversary on a subsequent occasion he kills him, but not in necessary self-defense, his crime may be that of manslaughter or murder, as the circumstances on the occasion of the killing make it the one or the other.” What is relevant here is the fact that a person armed himself beforehand does not automatically bump the crime up from manslaughter to murder; i.e. “it is not converted into murder by reason of his having previously armed himself.” Allen v. United States, 157 U.S. 675 (1895).
In Allen v. United States, 157 U.S. 675 (1895), the accused and the deceased had a history of personal conflicts. The accused, knowing that he was to meet the deceased, had armed himself with a pistol. When they met, the deceased and his companions were armed with sticks. A fight ensued which resulted in the accused shooting the deceased. The evidence was conflicting as to who had made the first attack. The Court held that jury instructions were erroneous in withdrawing from the jury the question of self-defense, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to self-defense, would make a case of murder unless the actual affray developed a case of necessary self-defense. The instruction incorrectly forced the jury to find either manslaughter or murder. The claim of self-defense was excluded -- or rather self-defense was eliminated if the sticks were not “deadly weapons.” This was error. “[W]hen a fight is actually going on, sticks and clubs may become weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by balls from a pistol. Hence, we think that the jury ought not to have been told that there ‘could not be any self-defense in it,’ and ‘it could not be self-defense, because the injury received would not be of that deadly character or that dangerous nature that would give a man the right to slay another because of threatened deadly injury, or great bodily injury received.’ Such a question as that was one peculiarly for the jury, and we think that they should have been left free to say whether the accused had not a right, when defending himself from an attack made by several persons using sticks, to consider himself in danger of life or limb. The verdict found -- that of murder -- is, we think, convincing that the jury were misled by this instruction… Being, then, of opinion that the instruction was erroneous in withdrawing from the jury the question of self-defense, and likewise in telling them that the intentional arming of himself with a pistol by the defendant, even if with a view to self-defense, would make a case of murder unless the actual affray developed a case of necessary self-defense, we reverse the judgment of the court below, and remand the case, with directions to set aside the verdict and award a new trial.”
In Beard v. United States, 158 U.S. 550 (1895), the Court held that “A man assailed on his own grounds, without provocation, by a person armed with a deadly weapon and apparently seeking his life is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control; and so long as there is no intent on his part to kill his antagonist, and no purpose of doing anything beyond what is necessary to save his own life, is not guilty of murder or manslaughter if death results to his antagonist from a blow given him under such circumstances.”
The Court held in Rowe v. United States, 164 U.S. 546 (1896): “On the trial of a person indicted for murder, the defense being that the act was done in self-defense, the evidence on both sides was to the effect that the deceased used language of a character offensive to the accused; that the accused thereupon kicked at or struck at the deceased, hitting him lightly, and then stepped back and leaned against a counter; that the deceased immediately attacked the accused with a knife, cutting his face, and that the accused then shot and killed his assailant… Held… that the law did not require that the accused should stand still and permit himself to be cut to pieces under the penalty that, if he met the unlawful attack upon him and saved his own life by taking that of his assailant, he would be guilty of manslaughter; that under the circumstances the jury might have found that the accused, although in the wrong when he kicked or kicked at the deceased, did not provoke the fierce attack made upon him by the latter with a knife in any sense that would deprive him of the right of self-defense against such attack, and that the accused was entitled, so far as his right to resist the attack was concerned, to remain where he was and to do whatever was necessary, or what he had grounds to believe at the time was necessary, to save his life, or to protect him from great bodily harm. If a person, under the provocation of offensive language, assaults the speaker personally, but in such a way as to show that there is no intention to do him serious bodily harm, and then retires under such circumstances as show that he does not intend to do anything more, but in good faith withdraws from further contest, his right of self-defense is restored when the person assaulted, in violation of law pursues him with a deadly weapon and seeks to take his life or do him great bodily harm.”
In Brown v. United States, 256 U.S. 335 (1921), the petitioner was convicted of second degree murder of Hermis. “There had been trouble between Hermis and the defendant for a long time. There was evidence that Hermis had twice assaulted the defendant with a knife and had made threats communicated to the defendant that the next time, one of them would go off in a black box. On the day in question, the defendant was superintending excavation work for a postoffice. In view of Hermis's threats, he had taken a pistol with him and had laid it in his coat upon a dump. Hermis was driven up by a witness, in a cart to be loaded, and the defendant said that certain earth was not to be removed, whereupon Hermis came toward him, the defendant says, with a knife. The defendant retreated some twenty or twenty-five feet to where his coat was and got his pistol. Hermis was striking at him and the defendant fired four shots and killed him. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. Beard v. United States, 158 U. S. 550, 559, 15 Sup. Ct. 962, 39 L. Ed. 1086. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546, 558, 17 Sup. Ct. 172, 41 L. Ed. 547. Not-withstanding the repeated threats of Hermis and intimations that one of the two would die at the next encounter, which seem hardly to be denied, of course it was possible for the jury to find that Brown had not sufficient reason to think that his life was in danger at that time, that he exceeded the limits of reasonable self defence or even that he was the attacking party.”
In this case, Rittenhouse carried a rifle for his own defense, knowing that there were dangerous people wreaking havoc in Kenosha. He did not use force to protect property, but rather to protect his own life when he was assaulted. Although he had a right to stand his ground, he in fact retreated until his pursuers were upon him. Had he not used deadly force, he would surely have been killed, or at least suffered grievous bodily injury. He is not guilty of murder or even manslaughter. Luckily for him, famed attorney Lin Wood, has come to his aid. (Wood is the lawyer who successfully represented Covington High School student, Nicolas Sandmann, in his defamation suit against CNN, Washington Post, and others). A #FightBack Foundation legal team led by John Pierce is also be part of Rittenhouse's defense. (They are accepting online donations for his defense).
Americans who support law enforcement have rallied around Rittenhouse, including conservative personality, Michelle Malkin. He is rapidly becoming a “cult hero” for those who are sick of endless left-wing riots, arson, and violence. It is past time for Democrat elected officials to stop allowing Antifa/BLM agitators to create chaos. If the Democratic "leaders" had not allowed the rioters to run amok, then Rittenhouse (and other patriots) would not have felt the need to step in. The Democratic leaders have failed the first duty of government, which is to protect life and property.
Rittenhouse is being made an example of. The political motivation for charging him seems to be to dissuade people from standing up to the revolutionaries, to discourage them from filling the void left by the police and taking it upon themselves to protect life and property. This appears to be an example of selective prosecution (perhaps even malicious prosecution, which is a "tort designed to afford redress for invasions of the right 'to be free of unjustifiable litigation.'” Maniaci v. Marquette Univ., 50 Wis. 2d 287, 297, 184 N.W.2d 168 (1971)). Rioters who commit arson and assault are given a free pass because the progressive district attorneys agree with their politics. For example, in Portland, Oregon, hundreds of rioters were arrested during violent protests in the past few months, but the district attorney, Mike Schmidt, is giving them a free pass. These agitators attacked federal, state, and local law enforcement officers with explosive devices, rocks, ball bearings, golf balls, and other projectiles, injuring many. They blocked traffic, destroyed historical landmarks, looted and burned businesses, and have repeatedly tried to burn down police precincts, the federal courthouse, and the Police Protective Association building. However, under Schmidt’s new policy, prosecutors will “presumptively decline to charge” all offenses of disorderly conduct, interference with a police officer, escape, harassment, criminal trespass, and rioting (with certain exceptions). Schmidt’s office will also be granting presumptive “conditional dismissals” in felony and misdemeanor cases which involved “financial but not physical harm to another person.” Such offenses include many criminal mischief, theft, and burglary offenses. It is frustrating for law-abiding citizens to witness such a permissive stance towards criminal conduct. In this case, Grosskreuz, the felon who shot at Rittenhouse first, is not being charged with assault or battery.
Rittenhouse deserves the support of patriotic Americans. If Governor Tony Evers (D-WI) had accepted President Trump’s offer of national guardsmen or given the police in Kenosha what they needed to stop the riots, this young man would not have felt the need to intervene. As it happened, the responsibility of securing and protecting life and property fell on the shoulders of a 17-year-old. This patriot stepped up to protect the community from riots. He was nearly killed in the process. Now, he is being prosecuted in a clear case of self-defense, while radicals who commit arson and assault are given a free pass. The law is being used as a political weapon. What is happening to Rittenhouse should put the fear of God into all American hearts. Lin Wood tweeted, “If Kyle cannot defend himself under the circumstances shown in videos, we are all at risk.” If he is convicted of murder, it will become much more difficult to defend one’s property, or even one’s own life without fear of prosecution. His attorney, John Pierce, warned, “If this is not self-defense under these circumstances, for Kyle Rittenhouse, then no one can defend themselves, and no one can defend this country.” Our right to defend ourselves is at stake. Sadly, individuals who dare to support Rittenhouse are being "canceled" by the "tolerant" Left.
Legal Disclaimer: The above does not constitute legal advice, but rather is the sole opinion of the author.
Watch discussion (starts at 14:00): Odd Squad Conspiracy Club - Kyle Rittenhouse, Portland riots, civil war/commie revolution, etc
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Cynthia F. Hodges, JD, LLM, MA
Juris Doctor: South Texas College of Law (Houston, TX)
LLM (Environmental Law): Lewis and Clark Law School (Portland, OR)
Masters of Arts (Germanic Studies): The University of Texas at Austin
Law License: Washington State