Self Defense, Kyle Rittenhouse, and Johnny Cash

“Don’t take your guns to town, son. Leave your guns at home, Bill: don’t take your guns to town.” – Johnny Cash

I can’t help but think about Johnny Cash’s song “Don’t Take Your Guns to Town” when thinking about the Kyle Rittenhouse situation and trial. Cash’s song is about Bill, a young, inexperienced, and overconfident cowboy that goes into town with his guns looking for manly adventures and to prove he has become a man. His wise mother warns him to leave his guns at home, but he does not. Bill ends up getting into a gunfight with an older man, gets shot, and dies. The moral of the story: don’t go looking for trouble, you just may find it and it may be more than you can handle or comprehend.

I would not wish Kyle Rittenhouse’s situation on anybody, and I certainly would not wish the the fate of the people he shot on anybody as well. Kyle shot and killed two people and shot another man in the arm during civil unrest related to the police shooting of Jacob Blake: Kyle was 17 years old at the time. There is video of Kyle prior to this tragedy where he states that the reason he went to Kenosha was to protect businesses and provide medical attention. Kyle also brought his rifle illegally across state lines since he was a minor. I am not licensed to practice law in Wisconsin. However, if this situation occurred in Indiana, Kyle would be looking at 45-65 years incarceration for a murder charge and a best case scenario of Level 5 Felony involuntary manslaughter or reckless homicide, which carries a possibility of 1-6 years incarceration. Kyle made some major life decisions at the age of 17, and, as many tragedies are, this was an avoidable tragedy.

The $64,000 question: is Kyle guilty of homicide and attempted homicide? The jury will be tasked with answering this question and deciding Kyle’s fate. Kyle is claiming he acted in self defense. Once again, I’m not licensed to practice law in Wisconsin. However, Indiana’s self defense law includes the following sections, and I’ll give my opinion based on Indiana law:

*I.C. 35-41-3-2(a): the general assembly finds and declares that it is the policy of this state that people have a right to defend themselves and third parties from physical harm and crime

*I.C. 35-41-3-2(c): A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person, employer, or estate of a person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

*I.C. 35-41-3-2(g): Notwithstanding subsections (c) through (e), a person is not justified in using force if:

(1) the person is committing or is escaping after the commission of a crime;

(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or

(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

Situation #1 involves Joseph Rosenbaum. From what I can see from video footage, Rosenbaum engaged and confronted Rittenhouse, threw a plastic bag at Rittenhouse, and was running at Rittenhouse right before Rittenhouse shot him. While a different person in the vicinity fired a shot from their handgun right before Rosenbaum was shot, Rittenhouse testified that he knew Rosenbaum was unarmed. Rittenhouse was running away from Rosenbaum. Rittenhouse shot Rosenbaum 4-5 times before Rosenbaum ever touched him. I don’t think Rittenhouse was the initial aggressor here. Was it reasonable for Rittenhouse to believe that Rosenbaum was going to inflict serious bodily injury upon him? In my opinion, no. Was it reasonable for Rittenhouse to believe that Rosenbaum was going to inflict imminent unlawful force upon him? In my opinion, yes. Rosenbaum was running after Rittenhouse and the aggressor. However, it is a pretty big leap that Rosenbaum was going to kill or seriously harm Rittenhouse rather than merely make contact with him or even make no contact at all. Rittenhouse knew Rosenbaum was unarmed, and there was no evidence at the time that Rosenbaum was a skilled fighter who could inflict serious bodily injury in a short period of time or that Rosenbaum was significantly bigger than Rittenhouse. I didn’t see Rosenbaum go for Rittenhouse’s gun in the video or that Rosenbaum ever had the opportunity to use Rittenhouse’s gun against him. Rittenhouse fired 4-5 shots too quickly, in my opinion.

Situation #2 involves Rittenhouse running away after shooting Rosenbaum and proceeding to shoot and kill Anthony Huber and shoot Gaige Grosskreutz in his bicep. From what I can see in video footage, there are a number of people running after Rittenhouse at this time. One person says Rittenhouse shot somebody, another says get his ass. Rittenhouse falls down and is on his back. One man jumps at Rittenhouse, and Rittenhouse shoots at the man and misses. Huber kind of trips over Rittenhouse, makes light contact, possibly unintentional, with his skateboard on Rittenhouse’s shoulder, grabs at Rittenhouse’s rifle, and is shot by Rittenhouse as his momentum carries him away from Rittenhouse. From what I can see, Huber is moving away from Rittenhouse when he is shot. Gaige stops about a foot away from Rittenhouse after Huber is shot and puts his hands up. Gaige then draws his own firearm, points it at Rittenhouse, and moves on Rittenhouse. Rittenhouse then shoots Gaige in his bicep.

There are a whole bunch of issues with this situation. Was Rittenhouse escaping or fleeing after the commission of a crime, which would be unjustifiably killing Rosenbaum? As I stated above, I don’t believe Rittenhouse’s killing of Rosenbaum was justified, and he ran away from Rosenbaum after shooting him. This would negate Rittenhouse’s self defense claim regarding Huber and Gaige and end the debate. If the jury believes Rittenhouse was justified in killing Rosenbaum, was it reasonable for Rittenhouse to believe that Huber was going to inflict serious bodily injury upon him? In my opinion, no. Was it reasonable for Rittenhouse to believe that Huber was going to inflict imminent unlawful force upon him? In my opinion, maybe. I understand Rittenhouse was on his back and a bunch of people were running after him. But, a reasonable person would consider the fact that other people believed he was a fleeing, unjustified, and active shooter and were trying to stop him rather than inflict unlawful bodily injury or serious bodily injury upon him. Rittenhouse could have disarmed himself after shooting Rosenbaum and not fled the scene, and the police were actually on the way to this scene. Huber was moving away from Rittenhouse when he was shot, and there is no evidence that Huber was trying to use Rittenhouse’s gun against him. Huber did approach Rittenhouse, make contact with his skateboard to Rittenhouse’s person, and grab Rittenhouse’s gun. I don’t think it would have taken much, if anything, to get Huber away from Rittenhouse’s person. Since I don’t think Rittenhouse was justified in killing Rosenbaum or that Huber was going to inflict serious bodily injury upon Rittenhouse, I also do not think Rittenhouse was justified in shooting and killing Huber.

If the jury believes Rittenhouse was justified in killing Rosenbaum and Huber, was it reasonable for Rittenhouse to believe that Gaige was going to inflict serious bodily injury upon him? In my opinion, arguably yes. Was it reasonable for Rittenhouse to believe that Gaige was going to inflict imminent unlawful force upon him? In my opinion, arguably yes. Gaige did draw down on Rittenhouse, and the possibility of Gaige shooting and harming Rittenhouse was immediate. Gaige was the aggressor by drawing down on Rittenhouse. However, since I don’t think Rittenhouse was justified in killing Rosenbaum or Huber, I do not think Rittenhouse was justified in shooting Gaige. Gaige testified that he believed Rittenhouse was an active shooter and that he did not intend to shoot Rittenhouse. Under the circumstances, Gaige had every right to try to stop an unjustified active shooter, and I believe Rittenhouse should have reasonably believed that others present thought he was an active shooter and were not violent people trying to inflict serious bodily injury on him.

I believe Rittenhouse will have to argue that the protestors as a whole and the protest were inherently dangerous and violent and it was ok to shoot first and ask questions later in order to successfully argue self defense. I believe that Rittenhouse believed this to some degree, and he took his gun to town for a reason. However, I don’t agree with this because I believe it takes reason out of the analysis of this situation, does not take into account each person and their specific encounter with Rittenhouse, and is an unfair stereotype of protests in general. I think a young, inexperienced minor took his illegal gun to town and escalated a high conflict situation into a violent situation that fit his incorrect, preconceived beliefs of what protests and civil unrest are. Protesting and free speech are important parts of US democracy, and, while they can be upsetting and high conflict, they are not inherently violent and do not have to be violent. After shooting Rosenbaum, Rittenhouse actually had the time to call a friend for help and stuck around the Rosenbaum scene for a significant amount of time, which, to me, shows Rittenhouse did not believe the protesters or protest as a whole were immediately dangerous. Why not wait for the police at the scene after shooting Rosenbaum? There was a hospital across the street from the Rosenbaum scene: why not go there for help? I don’t believe that the people Rittenhouse shot were trying to cause him serious bodily harm, and I believe Rittenhouse could have gotten himself out of the situation without shooting people. I believe that the protesters were justified in trying to stop Rittenhouse, an active shooter, after he killed Rosenbaum. Rittenhouse comes off like Bill in Johnny Cash’s song: a youngster looking for trouble, and Rittenhouse found trouble where it didn’t have to exist.

The jury will determine Rittenhouse’s fate this week. If I were on the jury, I would have a difficult time determining what Rittenhouse’s level of intent was. I certainly think reckless is an appropriate term to describe Rittenhouse. However, I do think Rittenhouse had the right to defend himself regarding Rosenbaum, just not with deadly force. There were many things Rittenhouse should have done that he did not do. I think involuntary manslaughter or reckless homicide would be appropriate regarding Rosenbaum. I’m less sympathetic regarding Huber and Gauge because I think Rittenhouse shouldn’t have fled the Rosenbaum scene and that he should have waited for law enforcement: these additional incidents shouldn’t have occurred, and people had the right to stop Rittenhouse at this point. I think at least involuntary manslaughter or reckless homicide applies to Huber and at least attempted reckless homicide or endangerment applies to Gaige.


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