6

Kyle Rittenhouse has been charged with murder.

I believe that the facts of the incident are not in dispute, because of ample video evidence: Rittenhouse was attacked, tried to escape, and when he couldn't escape, he used his rifle on the attackers. However, he is a minor and was therefore in possession of a firearm potentially illegally. Does this latter fact make it impossible for him to claim self-defense?

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    What makes you think minors can't be in legal possession of firearms? – Ron Beyer Aug 29 at 1:23
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    @MaxB There may be a broader question: Does the context (circumstances) nullify the Rittenhouse self-defense claim? Given suspect's statements indicating intent to defend property and not being a resident: When did it become OK for a minor to cross state lines to perform law enforcement, which would lead to the inevitable? – gatorback Aug 31 at 7:04
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    @gatorback Is crossing state lines illegal for minors? He didn't shoot people for doing property damage. He shot them when he couldn't escape after they attacked him. – MaxB Aug 31 at 7:39
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    @MaxB IANAL nor a judge, so I only have questions. I am biased: I believe in the right to self-defense. That being said, there are limits and precedence regarding self-defense. The "atmospherics" is that I would expect that a WI judge and jury would not take kindly to "FIBS" teenagers mall-copping and shooting anyone. I suspect that WI citizens are carefully watching this case for this reason. – gatorback Aug 31 at 7:56
  • @RonBeyer Apparently it's not, assuming it has a 16+" barrel. See edit. – MaxB Sep 1 at 0:49
6

Engaging in unlawful conduct does not completely preclude a claim of self-defense under Wisconsin law

...but it does raise the bar in some circumstances:

  • Criminal conduct by the defendant removes the presumption that "force was necessary to prevent imminent death or great bodily harm" when defending against unlawful forced entry to one's own property.
  • A much higher burden on use of force is imposed if engaging in unlawful conduct that is "of a type likely to provoke others to attack him or her and thereby does provoke an attack."
  • Anyone intentionally provoking an attack by any means, lawful or unlawful, "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 self-defense at all.

Section 939.48 of Wisconsin law governs the standards for self-defense.

939.48(1) sets out the general standard:

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.

939.48(1m)(ar) provides presumptions in favor of the defendant and no duty to retreat when defending against unlawful entry to one's own property (an implementation of the castle doctrine), but those presumptions are removed by 939.48(1m)(b)1. if (among other things), "[t]he actor was engaged in a criminal activity."

More relevant to a case that occurred outside is 939.48(2), which lays out how provocation affects a claim of self-defense:

(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.

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  • ergo: someone who loses self-defense by provocation commits murder? – Trish Aug 28 at 20:42
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    @Trish they at least couldn't claim self-defense as a defense to a murder charge. Whether the use of force resulting in death was murder would depend on whether it met the other requirements for that crime. Wisconsin has a few relevant crimes that could be generally referred to as "murder": docs.legis.wisconsin.gov/statutes/statutes/940 – Ryan M Aug 28 at 20:51
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    @DaveD I didn't intend to suggest that a general duty did not exist, only that criminal conduct created such a duty. Your link is the exact same link from my question, and I explicitly referenced 939.48(1m)(ar). That said, upon re-reading the statute, I think you bring up a good point...939.48(1m)(b)1. only removes the presumption, not the restriction on the court considering whether there was an opportunity to flee or retreat. I've updated my answer to be more accurate about that. Thanks! – Ryan M Aug 29 at 1:53
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    Does provocation create a duty to retreat or invalidate self-defense entirely? It's clear from the videos that Rittenhouse tried to retreat, in all cases. It's unclear to me why Rosenbaum (the first victim) chased him, although there are videos of Rosenbaum (who was not even allowed near minors) daring others to shoot him. – MaxB Aug 29 at 5:17
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    @MaxB Provocation per se definitely doesn't invalidate self-defense entirely, unless the provocation was done "with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant," in which case it does. – Ryan M Aug 31 at 9:09

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