Judge Bruce Schroeder dismissed the misdemeanor weapons charge against Kyle Rittenhouse today on the grounds that Rittenhouse's rifle was too long to qualify for prohibition under the statute. Without that charge it will be almost impossible for the state to argue that Rittenhouse was engaged in criminal activity at the time that Joseph Rosenbaum attacked him. We say almost impossible because the state is still permitted to pursue a provocation theory based on grainy FBI footage taken from a aerial drone which they claim shows Rittenhouse move towards Rosenbaum before Rosenbaum chased him.
All of our prior analysis of this case (https://copblaster.com/blast/45708/kyle-rittenhouse-allowing-jurors-to-consider-provocation-is-right) was based on two things we thought we knew for sure. First, that Rittenhouse had a duty to flee before he could legally defend himself because as a minor in possession of a firearm he was engaged in criminal activity. Second, that Rittenhouse was running away from Joseph Rosenbaum when he opened fire. Now we have to change our analysis because the first assumption is no longer valid. Unless the state can show that Rittenhouse provoked Rosenbaum, Rittenhouse had a legal right to stand his ground. Despite having a legal right to stand his ground he chose to flee before shooting Rosenbaum at the last minute. Those facts warrant acquittal unless provocation took place and that provocation was intended to provoke a response that would otherwise justify self-defense.
Under Wisconsin law someone waives their right to stand their ground if they provoke someone into attacking them for the purpose of giving them an excuse to defend themselves. Self-defense in Wisconsin is governed by statute 939.48 which reads in part, "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." There is zero evidence in the record suggesting that Rittenhouse provoked Rosenbaum for that purpose. We argued previously that one could consider showing up at a Black Lives Matter protest to support the police with an illegally possessed firearm to be a provocative act. That argument was based on a different part of the statute which creates a duty to flee when engaged in an unlawful act likely to provoke others. Without being unlawfully in possession of a firearm we cannot think of any unlawful provocative action that Rittenhouse engaged in.
The state's grainy drone surveillance footage is not convincing in this case because even if Rittenhouse moved towards Rosenbaum before being chased that is not enough by itself to constitute the type of provocative action which creates a duty to flee. The footage is too blurry to show anything beyond which circled figure moves which direction. It doesn't show if Rittenhouse raised his rifle at Rosenbaum and there is no audio so you can't tell if he provoked him with words. The footage is of a quality reminiscent of a UFO sighting in which one person claims to have seen a flying saucer, another claims it was a weather balloon, and for all we know it was neither.
Even when we thought Rittenhouse had a duty to flee we reached the conclusion that he fulfilled that duty admirably. In ever piece of footage we reviewed we could see him running away before shooting. First, he ran away from Rosenbaum and opened fire only after Rosenbaum got within feet of him. Second, he ran down the street while being chased by a mob, fell down, was attacked, and only then shot people who had either attacked him or was holding a gun. It is hard to find a better example of someone attempting to flee than Kyle Rittenhouse.