The right to self-defense was the focal point of the prosecution of Kyle Rittenhouse and subsequent trial. The case brought to the forefront of discussion is under what conditions is it socially and legally justifiable to kill another person outside of a conflict zone. Most of the arguments and divisions are along ideological lines. These debates are even more heated and contentious when the incident involves parties from different racial or ethnic demographics, or one party is a police officer. Another significant point of dispute is whether lethal force, especially with a firearm, is justified when the assailant is unarmed or armed with a melee weapon.
Ignoring the lengthy criminal histories of Rittenhouse’s four assailants, which he could not and would not have known at the time, or their apparent propensity for violence, the trial sought to determine if he acted appropriately in response to the immediate threat posed to him. Rittenhouse’s reasoning for being present and armed in that situation is also irrelevant to his belief that his self-defense required the use of deadly force that night, despite what third-party commentators endlessly pontificated about throughout the case. The following article will examine the Rittenhouse trial relative to a few other similar high-profile cases involving self-defense and some of the critical elements necessary for that affirmative defense, such as proportional force, provocation, and ability/obligation to retreat. A fellow author for The Havok Journal, Michael “Bama” Katt, briefly touched on some of these topics in his post “The Attempted Crucifixion of Kyle Rittenhouse,” and this article seeks to expand on those for the readers’ better context and understanding of the case and subsequent verdict.
What Does the Law Say?
Exact terminology and verbiage in self-defense statutes will vary from state to state. Still, almost all have very similar conditions and requirements to satisfy the legal basis of the defense. For example, Colorado Revised Statute (CRS) 18-1-704 states that “a person may defend themselves or a third party from what they believe to be the use or imminent use of unlawful physical force by that other person.” CRS 18-1-704 also establishes that someone may use deadly force if they reasonably believe that they or a third party is in imminent danger of death or grievous bodily harm or that a lesser degree of force is inadequate to stop the attack. An individual negates their right to self-defense when they provoke the attack, are engaged in another crime against persons, or are actively resisting arrest by a sworn officer in the performance of their official duties. An individual may regain the affirmative plea of self-defense if they attempt to withdraw from the conflict, but the other party pursues them to continue the engagement. The relevant Wisconsin Legislation (939.48) in the Rittenhouse case sets the same standard for an individual to claim self-defense.
The prosecution’s entire case hinged on their assertion that Kyle Rittenhouse provoked the conflict with Joseph Rosenbaum, the first person he shot and that he was in the commission of another crime (illegal possession of a firearm). However, multiple video evidence materials and eye-witness testimony indicated that Rosenbaum instigated the conflict between him and Rittenhouse, with only one piece of drone footage that ambiguously countered that narrative. Yet, that piece of evidence seemingly was the focal point of the case and even the subject of a potential Brady Rule violation (prosecution withholding evidence) and defense motions to dismiss. Additionally, Wisconsin Legislation 948.60 – the firearms charge – was ambiguously vague.
Judge Schroeder later determined it did not apply to this case, nullifying this charge and again reaffirming Rittenhouse was not engaged in the commission of a crime at the time of the shootings. Regardless, the burden of proof rests solely in the prosecution’s hands, and they must convince a jury that beyond a reasonable doubt that the defendant committed the alleged crime. To clarify “reasonable doubt,” it means that any person who has viewed all the evidence presented by both parties would reasonably believe the defendant was guilty of the crime alleged. Thus, one confusing and unclear piece of evidence should not have been the basis for determining provocation when all of the evidence pointed towards Rittenhouse attempting to flee and being ambushed by rioters, Rosenbaum being the most confrontational and hostile.
Proportional Use of Force and Deadly Force
In the law enforcement, military, and security industries, the use of force, especially deadly force, is the cornerstone of most training and policy procedures. Much of that training focuses on the escalation of force (EOF), rules of engagement (ROE; although less so in law enforcement and security scenarios), and the proportionality of response to a dangerous encounter. A security or law enforcement officer and even military service member can find themselves in significant legal trouble and assume civil liabilities for failing to adhere to these strict policies. There have been dozens of cases in recent history where military personnel, police officers, and private security guards were charged and convicted and sued for failing to adhere to EOF, ROE adequately, and use of force policies and procedures. However, there are cases where a review board cleared one of these individuals of wrongdoing, but prosecutors still sought charges. Similarly, there are other instances where charges/convictions were dropped or overturned after later review or on appeal.
First is the escalation of force, which law enforcement, military, and security professionals commonly refer to as the use of force continuum. In law enforcement and security, EOF is as follows: physical presence, verbal commands, empty-hand control, less-lethal methods, then deadly force. A quick note on less-lethal methods. People commonly misidentify less-lethal methods as “less-than-lethal,” which is an incorrect characterization. All less-lethal systems – OC spray/Mace, tasers, kinetic impact projectiles (beanbags, rubber bullets, and pepper-balls), and batons – all have the potential for grievous injury or death. Again, history is chock-full of instances where a suspect or assailant suffered an adverse effect from a less-lethal implement but is generally not normative. EOF progresses in much the same way with minor differences in the military due to the operational environment.
The military’s EOF is typically Shout, Shove (physical contact to achieve distance), Show (point a firearm at the potential threat), Shoot (fire a warning shot, although the Department of Defense has generally phased out this step from current doctrine), and Shoot (deadly force). However, these methods are not one hundred percent set in stone, and the dynamics of the circumstances dictate if an individual can skip steps to mitigate the threat to themselves or others. For example, suppose an officer is interviewing a person of interest during an investigation and that individual pulls out a knife, lunging towards the officer. In that case, that officer can immediately transition from officer presence to deadly force. Similarly, a soldier in a combat zone can use lethal force to mitigate the threat posed by someone identified as wearing a suicide vest (an explosive device attached to their person).
Next is the rules of engagement which establish the criteria that use of force is authorized. In the military, the standards are relatively cut and dry; someone poses a threat to themselves or others. Law enforcement and security scenarios are far more complicated and generally relate to probable cause and a perceived threat to the public. [Disclaimer: the author does not have a law enforcement background; however, he does have extensive security experience and has worked alongside law enforcement in numerous matters]. For example, suppose police officers respond to an “active shooter” call – someone actively shooting at others. In that case, those officers can legally engage that assailant with whatever means available to them within the force continuum to mitigate the threat the suspect poses to the public. Another example more relevant to the Rittenhouse trial that applies to the military, law enforcement, and security is if an individual attempted to take possession of that service member/officer’s weapon, regardless if it is a firearm or less-lethal system. The justification for using deadly force, even in the case of some less-lethal system, is that the assailant could use the weapon against the officer or service member to kill or incapacitate them.
Finally, is the proportionality of response. In almost all jurisdictions, the proportionality of response, whether a private citizen or someone acting in an official capacity, uses the minimal amount of force necessary to stop the threat within the force continuum. The law generally regards proportion as equal to, or one level above, their assailant is using. Thus, if someone is attacking an individual with their fists, they can use an impact weapon (baton, bat, or stick) to stop the attack. However, numerous exceptions and variables can change the perceived threat of grievous bodily harm and relative proportionality.
Two recent high-profile examples of this were the assault of neighborhood-watch commander George Zimmerman by Trayvon Martin and Michael Brown’s attack on Ferguson police officer Darren Wilson. In the former example, Martin was beating Zimmerman to near-unconsciousness with his fists. Fearing for his life, Zimmerman shot and killed Martin, and a jury of his peers found him not guilty because of self-defense. In the latter case, there was a significant size differential between Brown and Officer Wilson, making mutual hand-to-hand combat an unequal matchup during their scuffle. The official report on the incident also indicated that Brown attempted to grab Officer Wilson’s firearm during the melee, which, as stated above, is a justifiable criterion for the use of deadly force. These cases established stare decisis, or legal precedent, for future affirmative defenses of self-defense under similar circumstances.
Here is how EOF, ROE, and proportionality of response apply to the Rittenhouse case. For Kyle Rittenhouse, there was not adequate time to go through the full force continuum with his engagements with either Jacob Rosenbaum or Anthony Huber. Rosenbaum presented a clear threat when he lunged for Rittenhouse’s rifle (explained more below), and Huber both struck him in the head with his skateboard – a potentially lethal impact weapon – and also attempted to grab the rifle. Conversely, Rittenhouse was able to “show” his firearm at Gaige Grosskreutz, who summarily raised his hands, and only fired a disabling shot once Grosskreutz admittedly pointed his handgun at Rittenhouse while closing the distance between them. Regarding ROE, all three of the individuals he shot attempted to gain control of his weapon and gave other indicators of threatening him with grievous bodily harm or death.
Thus, despite whatever threat Jacob Rosenbaum presented earlier in the interaction, the instant he tried to grab Rittenhouse’s rifle, the use of deadly force became legally justified. Finally, Rittenhouse found himself vulnerable or otherwise in fear for his life and responded accordingly. Rosenbaum’s extremely aggressive and threatening demeanor -verbally threatening to kill the teen – and tossing an unknown object at him in an environment rife with improvised explosive devices was perceived as a deadly threat. Huber struck Rittenhouse in the head, a potentially lethal or incapacitating blow, justifying deadly force. Grosskreutz was armed with a pistol and pointed it in a threatening manner, and Rittenhouse responded to it with equal use of force.
In closing, the verdict rendered in the Kyle Rittenhouse trial was the right one based on the evidence presented. All four of Rittenhouse’s assailants demonstrated a clear, perceived threat of grievous bodily harm or death to him. He responded accordingly and legally with reasonable use of deadly force to migrate those threats under the criteria discussed above. Rittenhouse’s motivations for being in Kenosha that night and the criminal histories of his attackers are irrelevant to his affirmative defense of self-defense.
The case should have never made it past the grand jury, much less gone to trial. Unfortunately, the Kenosha District Attorney felt intense political and public pressure, fueled by many fallacies and dishonest narratives, and charged Rittenhouse with several counts of murder and attempted murder. There will likely be more self-defense cases like this in the future. Still, hopefully, this trial will also help establish stare decisis and prevent innocent people from going to prison for lengthy terms for protecting themselves and others with deadly force from grievous bodily harm or death.
Ben Varlese is a former U.S. Army Mountain Infantry Platoon Sergeant and served in domestic and overseas roles from 2001-2018, including, from 2003-2005, as a sniper section leader. Besides his military service, Ben worked on the U.S. Ambassador to Iraq’s protective security detail in various roles, and since 2018, he has also provided security consulting services for public and private sectors, including tactical training, physical and information security, executive protection, protective intelligence, risk management, insider threat mitigation, and anti-terrorism. He earned a B.A. and an M.A. in Intelligence Studies from American Military University, a graduate certificate in Cyber Security from Colorado State University and is currently in his second year of AMU’s Doctorate of Global Security program.