Before examining the substance of Rittenhouse’s defense, it’s worth reviewing the case’s undisputed facts. Bystanders’ cell-phone videos establish that 36-year-old protester Joseph Rosenbaum chased Rittenhouse into a parking lot, shouted “Fuck you!,” and threw a plastic bag at his back; that a different protester fired a gun into the sky, and immediately following this shot, Rittenhouse ceased fleeing and turned around; that Rosenbaum then moved toward Rittenhouse, who proceeded to fire four times.
Those shots attracted the attention of nearby demonstrators. One ran up behind Rittenhouse and hit him in the head, another kicked the gunman to the ground. Then, 26-year-old Anthony Huber whacked Rittenhouse with a skateboard and appeared to reach for his rifle; Rittenhouse shot Huber through the heart, instantly killing him. Gaige Grosskreutz, 28, approached and pointed a handgun at Rittenhouse; Rittenhouse nearly blew Grosskreutz’s right arm off.
In Wisconsin, as in most U.S. states, the prosecution bears the burden of disproving self-defense claims beyond a reasonable doubt. Thus, at his trial, Rittenhouse did not need to prove that each shooting in Kenosha was an act of self-defense; the prosecution needed to prove that this was not the case.
Under Wisconsin law, you can kill people in self-defense if you reasonably believe that doing so is necessary to spare yourself or others from imminent bodily harm or death. This belief need not be accurate. Nor must it be reasonable from an objective perspective. It only needs to be reasonable from the subjective point of view of the shooter in the moment he or she pulls the trigger.
There is one caveat to this rule: If you engage “in unlawful conduct of a type likely to provoke others to attack,” then you can’t kill the attackers whom your unlawful actions provoked. (Though even here there is some ambiguity, as Wisconsin’s statute appears to directly contradict itself.)
It is legal in Wisconsin for an adult to openly carry an AR-15, as Rittenhouse did. Since Rittenhouse was 17 on the night of the shooting, however, it was unlawful for him personally to be carrying such a weapon. But there was no way for those around Rittenhouse to know his exact age. And as Harvard law professor Noah Feldman explains, “Provocation is in the eye of the beholder”: If you do not know that someone is engaged in unlawful conduct, then that conduct cannot constitute a legal provocation inviting attack. Further, it does not seem true that “carrying an assault weapon in an open-carry state while being 17” is a form of unlawful conduct that typically causes other people to attack a person.
To nullify his eligibility for self-defense, Rittenhouse likely would have had to provoke Rosenbaum through some concrete act. And yet, under Wisconsin law, the privilege of self-defense “lost by provocation” may be regained if one “withdraws from the fight.” Given that Rittenhouse was running away from Rosenbaum before their fatal encounter, any preceding provocation would seem immaterial.
The prosecution therefore needed to prove that Rittenhouse could not have reasonably believed that it was necessary to shoot Rosenbaum in order to spare himself from imminent bodily harm. Rittenhouse testified that Rosenbaum reached for his gun. Video evidence does not contradict this claim. And Richie McGinniss, a videographer for the Daily Caller and eyewitness to the shooting, corroborated Rittenhouse’s account, testifying that Rosenbaum lunged at the defendant and reached for the barrel of his gun. A medical examiner testified that Rosenbaum’s hand showed gunpowder residue.
If prosecutors failed to prove Rittenhouse legally culpable for the killing of Rosenbaum, the rest of their case gets significantly weaker. Killing in self-defense is a lawful act, and lawful acts cannot constitute “provocations” that strip an individual of the right to self-defense. Videos suggest that Huber hit Rittenhouse and reached for his weapon. Grosskreutz, meanwhile, testified that he pointed a handgun at Rittenhouse before he was shot. If these actions were not “provoked,” then Rittenhouse plausibly had a legal right to respond to them with lethal force.