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Kyle Rittenhouse shot Joseph Rosenbaum four times, killing him. He was charged with murder for this, and also reckless endangerment because Richie McGuinness was some distance behind Rosenbaum. If he is acquitted of murder due to a self-defense justification, can he still be convicted of reckless endangerment? I mean any shot that endangered McGuinness must have gone through Rosenbaum. I guess the question is can there be a self-defense justification for reckless endangerment?

I'm interested both in this case and in the general case.

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  • I know little in this part of law, but it would seem bizarre to say that self-defense was valid enough to be acquitted for murder but not for reckless endangerment. One possibility is that there were multiple actions that he did and some could be justifiable self-defense (shooting) while others could be considered reckless endangerment (openly carrying a large gun as an adversary in a charged atmosphere).
    – BobtheMagicMoose
    Nov 2, 2021 at 18:51
  • Not that bizarre. If you had two ways to defend yourself, one killing the offender in self-defence, and another killing the offender in self-defence while putting innocent third parties in danger, then you should use the one that doesn't endanger anyone. Say you have a knife, a gun, and an automatic machine gun. If it's you and the attacker on their own, nobody else around, it doesn't matter what weapon you use. If this happens in a crowd of people, using a machine gun would likely kill others while using a knife wouldn't, and using a gun would kill others with very bad luck only.
    – gnasher729
    Nov 3, 2021 at 11:35
  • And nice to hear he's going to court. He took his gun, travelled to another state looking for trouble, and killed someone.
    – gnasher729
    Nov 3, 2021 at 13:39
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    @gnasher729 It wasn't his gun, he didn't bring it across state lines (which isn't illegal anyways). The gun was always in Wisconsin. He worked in Kenosha too, he was a lifeguard there. It's not like it was a long trek, he commuted to Kenosha often. He had just as much right to be there, and only shot people actively attacking him.
    – Ryan_L
    Nov 3, 2021 at 15:49
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    @gnasher729 There's no requirement in deadly self-defense to switch to a more appropriate weapon if it's available, which is good because that's an impossible standard (there is a requirement to use appropriate force but every option you listed is deadly force). And also every fact you stated in regards to the case is false, but that's not relevant to the question.
    – IllusiveBrian
    Nov 3, 2021 at 20:35

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Each individual shot leading to death has to be justified for an affirmative defense to murder to hold. If each individual shot is justified, that is also an affirmative defense to any other charge related to firing the shots, like reckless endangerment. It is impossible to murder a person who is already dead, so in theory a shot could not be justified, but was fired after Rosenbaum was already dead and so only proves guilt of reckless endangerment, not murder. I doubt that that line of reasoning will be used in this case but it is theoretically possible.

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I guess the question is can there be a self-defense justification for reckless endangerment?

If Kyle Rittenhouse established that his shooting of Joseph Rosenbaum was justified by self-defense, this would not necessarily mean that the reckless endangerment charge involving Richie McGuinness would automatically be dismissed. Each would be assessed individually.

It could be that a jury inclined to acquit Rittenhouse of self-defense would find that Rittenhouse did not recklessly endanger McGuinness, but that is a fact specific determination.

It wouldn't take many questions to establish the reckless endangerment charge without the murder conviction.

Q to Rittenhouse (assuming he testifies): "When you took aim at Rosenbaum did you look to see if anyone else in Rosenbaum's vicinity who did not pose a threat to you or others present was nearby?"

A from Rittenhouse (assuming he testifies): "No."

Q: "So you didn't perceive that McGuinness was a threat to you or anyone else, did you?"

A: "No."

Q: "Do you agree that if you waited two seconds before firing upon Mr. Rosenbaum that Mr. McGuinness, who testified earlier that he was running at a right angle to your line of fire, would have been out of your line of fire?"

A: "Yes."

Q: "Did you believe that Mr. Rosenbaum was armed with a firearm?"

A: "No."

Q: "Was the threat that you perceived was presented by Mr. Rosenbaum to your life or the life of others so imminent that you couldn't have waited two more seconds before firing to protect other people's lives?"

A: "No."

Who knows what the testimony will be at trial. But, if those questions were answered in this way, the reckless endangerment charge would be established, even if Rittenhouse were acquitted of murder on the grounds of self-defense or defense or others.

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    Pretty sure that the answer to that last one would be "yes". If the situation was calm enough for him to wait, he wouldn't have been justified to shoot in the first place - especially if the guy he shot was actively trying to pull the gun out of his hands.
    – nick012000
    Nov 3, 2021 at 23:58
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    Also the second to last could be a "yes" since Ziminski discharged a handgun into the air just 2.x seconds prior to Kyle's shots. Rittenhouse may have heard that and concluded that Rosenbaum had a gun. Kyle simply heard a gunshot behind him as he fled and at that moment didn't know it was Rosenbaum's new buddy and not Rosenbaum himself.
    – acpilot
    Nov 4, 2021 at 2:18
  • @nick012000 The facts will be determined by a jury after hearing the evidence. I have no personal knowledge of what happened. The point of the example is simply to demonstrate the manner in which the charges are analytically distinct by using a concrete example that is easier to understand than an abstract description of a rule of law. Feel free to devise other fact patterns in which a jury could convict on one charge but not the other.
    – ohwilleke
    Nov 4, 2021 at 18:39
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can there be a self-defense justification for reckless endangerment?

The answer to that question is yes. Wisconsin statute 939.48(3) says:

The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.

It would not be a defense to reckless homicide or reckless injury, but reckless endangerment is not on the list, so it would be a defense.

Also, even though it wouldn't be a defense to reckless homicide or reckless injury, recklessness has an unreasonableness standard, and what the jury decides is unreasonable will be in the context of the defendant's life-or-death situation.

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