Self defense vs prudence

Anyone paying attention to the Kyle Rittenhouse case should conclude that he was acting in self defense when he shot three people in Kenosha WI. He might be guilty of a gun charge and breaking curfew, but that is it.

People will often object that he had no business being in Kenosha during the riot, but that isn’t relevant to the law. Most of the time if you have to use violence to defend yourself it is because you had been doing something stupid. The law understands that. Being a dumbass doesn’t mean you have to lay down and die when someone attacks you.

But on a moral, not legal basis, did he really have no business in Kenosha on the night of the riot?

Lets imagine that the KKK is having a two night rally in your town. The first night of the rally somebody burned a cross in the yard of a Jewish family. The police are too busy to provide protection for every Jewish family so concerned citizens decide to arm themselves with baseball bats and shotguns and post guards on the lawns of the local Jewry to deter vandals.

Would you join the guards? I would if I knew some of the families or it was my town. If I didn’t know anyone involved I wouldn’t stick my neck out. If someone didn’t know the families or wasn’t from the town, but still wanted to go, I wouldn’t blame them.

Ultimately it comes down to 1) your moral proximity to the situation and 2) your own ability to safely preform the guard duties. It is a prudential decision. A couple of witnesses in the trial suggested that Rittenhouse looked very young, and seemed naïve about how dangerous the situation could become. I suspect that is why some of the rioters targeted him as soon as they saw him separated from his group. I’d say his youth and inexperience would dictate that he shouldn’t have gone and it was incumbent on older, wiser people to tell him not to.

Not to relitigate the Travon Martin killing, but while Zimmerman might have not have been guilty of murder according to Florida law he was certainly doing something stupid: under no circumstances should he ever have gotten out of his car to confront a sketchy looking kid. Martin for his part could have avoided getting killed had he just said, “hey, asshole, why are you following me?” while maintaining his distance.

Most states in the U.S. followed the Common Law tradition that a person has a duty to retreat from an aggressor and should only use force as a last resort. That is the morally correct position, but the doctrine has fallen out of favor now. Prosecutors would overzealously prosecute people who used lethal force to defend themselves in situations where retreat wasn’t practically feasible, with results that were odious to justice. “Castle doctrine” and “stand your ground” laws were a reaction to those cases. Again, it is a matter of prudence: does the person realize he has time or opportunity to retreat? In the Rittenhouse case, Wisconsin does not have a duty to retreat he but was attempting to do so anyway.

In Georgia there is the Ahmaud Arbery case, which is utterly bizarre. It seems that 3 men undertook to make a citizen’s arrest without immediate knowledge that Arbery was the perpetrator of a series of burglaries, just a suspicion based on him having been seen walking around a construction site. In the Martin case, Martin turned and attacked someone who was trailing him. Zimmerman wasn’t (to my knowledge) doing anything illegal by following the young man, even if it was stupid. In this case the three men chased Arbery with a truck, then cornered and confronted him, and shot him when he started fighting. The chasing with the truck and detaining of Arbery have to be illegal. Not being police there is was no reason for Arbery to obey their orders. Rittenhouse undertook to preform a quasi-police function in an unusual situation in which the legitimate authorities were overwhelmed, the three guys in Georgia were presuming to take over police functions when the police were operating normally.

9 comments

  1. I’m surprised you haven’t been inundated with comments, this is one of those topics that gets people going.
    I agree to a certain point. Along with self-defence we have to take into consideration another concept which is proportional force. The police have some leeway with this, but the public less. I’m not watching the trial, so I don’t know the details, but maybe you can tell me — what was his (alleged) intent when he went to where the shooting happened? Did he ask the police there how he could help? I suppose I’d like to know is this someone who’s genuinely interested in somehow “assisting” law enforcement, or is it a kid who thinks he’s in a video game so he might get a chance to shoot someone?

    1. Proportionality is essential to the morals of it. With the Arbery case, 3 bozos are not allowed to run down a guy with a car because they recognize him from a surveillance video from an unrelated case. As for people trying to defend property during a breakdown of public order, eh, it is very much a question of proportion.
      Rittenhouse was with a group of people that were defending a used car lot that had been torched the night before. The owners of the lot claim that the guards were uninvited but when the owners were on the stand they came across as unreliable. Another witness says they were not only invited but offered a tip.
      The prosecution is insinuating (not saying) he went with the desire to hurt someone but 1) all the video evidence his him shooting people who are already attacking him and 2) all witnesses say he was a naïve kid trying to be nice and helpful. It seems like there is a video from the previous day of him saying mean things about rioters but everyone’s prior character is not allowed as evidence, which is good for both prosecution and defense since the dead men were both scumbags.
      There is a little gap in the evidence where he went off by himself to put out a fire, the next time we see him he is running from Rosenbaum.
      If you watch the trial it is pretty clear the prosecution has no case. They might be good lawyers but they have nothing to work with.
      I’m watching the livestreams on a YouTube channel called Rekieta Law which is very pro-Rittenhouse. I like it because all the lawyers commenting are all day-drinking degenerates. Adds some dark comedy.

  2. Billy Jack · · Reply

    I think this is a well-reasoned piece. I don’t know what to make of the prosecution of Rittenhouse. There just isn’t a case to be made, why is the state trying to make it? All of the possible answers take one to a pretty dark place.

    One quibble: Wisconsin does have a duty to retreat except in the home, in a vehicle, or workplace. This is a relic of a bygone Upper Midwest with a much more robust dignity culture than one finds there today. We’ll see how long it lasts. Morally, I think a person does have a duty to retreat if possible rather than use deadly force. Legally, I tend to favor stand-your-ground. In any case, it seems pretty clear that Rittenhouse tried to retreat from both altercations and only used his gun when he was cornered and being attacked. So for this case it doesn’t matter.

    I’m pretty sure you’re right that stand your ground laws are not rooted in Common Law, although the principle came into American jurisprudence quite a long time ago. But if I’m not mistaken the Castle Doctrine does have roots in Common Law.

    1. I speculate the mayor and DA (and maybe the Governor) brought charges to blame an out-of-towner rather than accept blame for not doing more to control the riots.
      Fact is that if the civil authorities are not trying to control this kind of disorder then people will have recourse to private security or form militias. This is on the state.

  3. Saying Kyle is guilty and shouldn’t have been there is equivalent to telling a woman it was her fault for getting raped.

  4. It’s clearly self defense. But the reality is that, if you are a juror, the moral thing to do is disregard your instructions and vote to convict. It sucks and Kyle Rittenhouse does not deserve to go to jail but, when you need to consider the needs of the many versus the one, it’s the most moral choice. If he is exonerated, there will be riots and cities will burn and there will be injury and people will lose their lives. It’s horrible that this is what’s become of our justice system but when you have the media spinning the story such that a lot of people believe Rittenhouse went to Kenosha to massacre people of color, then that’s the inevitable outcome.

    1. 1) I don’t think rioters should be given a vote.
      2) If riots are a bad result, wouldn’t millions of Americans losing faith in the criminal justice system be a worse result?

      1. 1) No, they shouldn’t. But the reality is, they do.
        2) That’s all relative. Law abiding citizens may lose faith. But they’ll be no riots – because they’re law abiding.

        You either ruin one kid’s life or you cause the injury or death of financial ruin of the many.

  5. In going down there, legally, helping people in his father’s neighborhood, he did help. The weapon was for protection, and he only used it when “mob” people came after him, threatening his life. We all should understand that. We all deserve the right to protect ourselves, family, and neighbors against dangerous threats.

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