The media is buzzing with Judge Bruce Schroeder's decision to allow the jury to consider provocation in the Kyle Rittenhouse case. This is a big decision and we think it is the right decision. The prosecution will argue that Rittenhouse provoked Joseph Rosenbaum and therefore should have been required to exhaust all other options before shooting him. However, our analysis supports the conclusion that Rittenhouse did in fact exhaust all other options, which leaves just one remaining argument that the prosecution might try to make which we don't think there is enough evidence to support.
WISCONSIN SELF DEFENSE LAW
Self defense claims are governed by Wisconsin statute 939.48 titled "Self-defense and defense of others." The part of the statute relevant to provocation reads as follows:
(2)Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
Under that statute provocation can impact a self-defense claim in three possible ways. First, a person who engages in unlawful conduct likely to provoke others (like showing up at a BLM protest supporting police while unlawfully possessing a gun) is not entitled to use deadly force in self-defense unless the attack places the person in reasonable fear of great bodily harm and has exhausted all possible means of escape. Second, if the provocateur withdraws from a fight and gives notice of such a withdraw they can defend themselves if attacked again. Third, if it can be proven beyond a reasonable doubt that the provocateur engaged in provocative conduct for the purpose of provoking an attack that would otherwise give him an excuse to use force in self-defense he forfeits his right to self defense. We think the first clause here is relevant to the Rittenhouse case. We don't think the other two apply because there was no fight for Rittenhouse to withdraw from and no evidence introduced suggests that Rittenhouse provoked Rosenbaum for the specific purpose of giving himself an excuse to defend himself.
We think that one could successfully argue that the act of showing up at a BLM/Antifa anti-police protest to show support for law enforcement is by itself an act likely to provoke other people. When a person shows up at such an event with a firearm they cannot legally possess they are engaged in unlawful conduct. For those reasons we believe that Rittenhouse had a legal obligation to flee before he could legally use force to defend himself. At the same time our analysis of the video evidence in this case from day one has shown that Rittenhouse fulfilled his duty to flee (https://copblaster.com/blast/25930/kenosha-protester-shot-in-self-defense-by-kyle-rittenhouse). In fact, it is hard to think of a better example of someone fulfilling their duty to flee than Kyle Rittenhouse. Rittenhouse ran away from Joseph Rosenbaum as fast as he could, Rosenbaum continued to chase him, and it wasn't until Rosenbaum closed within a couple feet of Rittenhouse that he opened fire.
Rittenhouse continued to fulfill his duty to flee by running down the street towards the police. He was then chased and attacked again. He was hit with a skateboard, fell to the ground, was kicked in the face, shot at the kicker, shot the guy with the skateboard when he attacked him again, and shot a third guy while holding a pistol in the arm he shot him in. This case is self-defense.
The only way that we could see a reasonable juror convict Kyle Rittenhouse would be if he had said something indicating that he was looking for an excuse to use his gun, but we are not aware of Rittenhouse making any such statements. They can't even find a witness claiming to have heard him say such things which is surprising in a high profile case like this. We are surprised nobody has come forward with a fabricated claim to have heard him confess to provoking Rosenbaum so that he could shoot him in self-defense. Absent such a statement it is not possible to prove that Rittenhouse provoked Rosenbaum for that purpose beyond a reasonable doubt.
There was a recording taken before Rittenhouse went to Kenosha in which he voiced a desire to shoot BLM protesters outside a CVS store, but that evidence was excluded. It was excluded because its prejudicial potential outweighed its evidentiary value. Your average idiot that is too stupid to get out of doing jury duty is far too likely to think that such evidence proves he went to Kenosha with the premediated intent to shoot people. An intelligent person would of course say something like, "wait a minute, he never says anything about going to Kenosha, planning to shoot people, or provoking people to give himself an excuse to defend himself." Had Rittenhouse said something like "I'm going to Kenosha and I'm going to shoot some of them," or "I'll just walk around with a rifle shouting my support for the cops until one of them attacks me so I can shoot him in self-defense," or something of identical meaning that would be different story. However, ranting on camera about some homicidal fantasy does not specifically prove that he went to Kenosha to make his fantasy reality.
WE ARE NOT WHITE SUPREMACISTS
We feel the need to disclaim the fact that we are not white supremacists due to the sentiment online that anyone who doesn't believe that Kyle Rittenhouse is guilty must be a white supremacist. This is being thrown around a lot by people on the far-left right now. We were not going to add this disclaimer, but yesterday we noticed a Tweet from someone with Antifa that we've worked with in the past saying something like "Kyle Rittenhouse is guilty, no one who isn't a white supremacist disagrees." We are going to leave the name of the author out of this article because we rather like him for the most part and don't want to sabotage our ability to work with him in the future. Still, we feel the need to say how frustrating it is to read such things. We feel that it is a form of manipulation employed by the far-left when they are afraid of losing an argument. A smokescreen intended to stop people from taking a closer look and make those that have afraid to speak out unless they are willing to risk being labeled a white supremacist.
We experienced a similar issue in Portland, Oregon last year when covering the Jeremy Christian case. In that case, this author spent three months locked up with Jeremy in the Multnomah County Detention Center (MCDC) in late 2018. During that time Jeremy was my neighbor and recreation partner, so I got to know him really well. The man I came to know is nothing like the person depicted by the press. During our time together he told me everything about his case and I told him that if the evidence supported what he told me that I would support him during his trial. When I went to the opening statements and watched the videos from the train I saw first hand that he was telling me the truth. To this day I have yet to catch him in a lie. It would have been much easier for me if I had caught him in a lie because when I started telling people what was really going on I was falsely accused of being a lying white supremacist. People that knew nothing about the case besides what they saw on the news were of the opinion that only a white supremacist would defend Jeremy Christian in any way. I kept getting pressured to stop defending him. If I wrote an article detailing false statements made by a witness people would accuse me of intimidating a victim, report my Facebook page for "hate speech," and call me a liar. To this day there are still people giving me a hard time just because I looked at the evidence and told people what I saw.
WHY DEFEND RIGHT WINGERS?
So, if I'm not a white supremacist why do I defend right wingers? I do it because I know that the most extreme cases are the ones most likely create bad precedent in the courts that the government will use to violate peoples rights down the road. When the public is crying for blood the government often doesn't care how they answer the cries. Often prosecutors will pursue meritless claims knowing that if the defense cannot keep those claims out of a jury's hands they are likely to win. Then appellate courts are reluctant to overturn the conviction and precedent is established to be used against others.
For instance, when I was in prison a fellow inmate asked me if I had read the BOP's announcement about a new law allowing sex offenders to be civilly committed as "sexually dangerous persons." I was like, "I'm not a sex offender, what do I care? WTF are you implying?" He said that he wasn't implying anything, but that he knew I was a legal beagle so I should look at the law closely because it could serve as a foundation for holding anyone after they've done their time for psychiatric reasons. I looked at the law and learned he was right. Under that law certain sex offenders could be civilly committed at the end of their prison sentence if deemed a "sexually dangerous person" by a BOP doctor. It occurred to me that if such legislation is upheld following what are sure to be legal challenges down the road that there wouldn't be much if anything to stop Congress from striking the word "sexually" and allowing anyone deemed a "dangerous person" for any reason to be committed to a mental institution at the end of their sentence. Ever since I have been against civilly committing "sexually dangerous persons."
Cases in which people are more likely to disregard the rights of the accused in pursuit of the outcome they want need to be watched the closest. For instance, one of Jeremy Christian's convictions was an Assault II charge for throwing a plastic bottle half full of booze at a woman the night before the stabbing. The bottle hit her in the eye and left her with a bruise. Christian was convicted of assault with a dangerous weapon. If that stands then it will create precedent for charging anyone that throws a plastic bottle full of liquid at someone's face with Assault II. Assault II carries a mandatory minimum of 5 years in state prison. Is nailing someone you think is a white supremacist worth exposing everyone to a 5 year sentence just for throwing a plastic bottle at someone? Of course its not.
The only people that think it is worth it are those that support a double standard in prosecutorial decisions. The standard of only enforcing certain laws under certain circumstances against certain people when those certain people are alleged white supremacists. There are many such people on the far-left. People that think having the right people in the right places will make sure that only far-right personalities will suffer the wrath of selective prosecution. To their credit they are often correct, but the problem with their position is that the same flaws in the system which permit this to happen can just as easily be used against them by the wrong people. In Portland, Oregon far-left demonstrators rarely face prosecution for property damaged during mostly peaceful protests, but if they did the same thing in a red state they would most certainly be sent to prison. They would be treated similarly to right-wingers prosecuted in liberal communities for conduct offensive to most in that area.
We would come to the defense of the far-left if we thought they were being treated like Kyle Rittenhouse. If there were a right wing rally in the deep south and BLM were to show up with rifles to protect black businesses we would support their right to do so. If one of their people were attacked, ran away, got chased, and fired when the pursuer finally caught up we would call that self-defense. If prosecutors were to throw the book at him hoping an all white jury would convict him out of hatred for BLM we would call that racist. The only difference between that scenario and this one is that the discrimination is coming from leftists instead of racists.
WE ARE NOT LIBTARDS
We find it ironic that some leftists have been calling us a right-wing outlet because usually right wingers are calling us libtards. They call us libtards because we advocate against police misconduct committed against people of color and racial justice protesters far more often than we defend right wingers. They think we must be far-left, but they are not right either. We support things like gun rights, free speech, freedom of religion, and other things conservatives cherish. We oppose censorship on social media because even though we don't agree with most of what the right has to say we also think they have a right to speak just like anyone else. We oppose left wing tyranny which can be just as bad as right wing tyranny. Joseph Stalin killed way more civilians than Adolf Hitler did. We supported the right wing militias that took up arms against the federal government in Bunkerville and Malheur because they were fighting for civil rights that the Constitution entitles them to. The liberties they were fighting for are a lot like the liberties BLM is fighting for. Both groups want the government to honor their oath to uphold the Bill of Rights.
The Rittenhouse jury should consider provocation as a factor in the case, but they should also conclude that Rittenhouse fulfilled his duty to flee. We are not saying this to support the far-right any more than our speech in defense of BLM is intended to support the far-left. We want to remain neutral in that regard so that anyone can rely on us to look at allegations of government overreach objectively.