My View: The Troubling Implications of Rittenhouse’s Acquittal

By David M. Greenwald
Executive Editor

As the verdict was read in court on Friday, one by one the charges came back not guilty, Kyle Rittenhouse had been holding back the emotion and finally let it all out when the final not guilty came through.  Under other circumstances, we might have concluded – justice was served.

While this may have been a legally permissible verdict, to me it did not feel like justice.  Two men a dead, a kid who made a series of appallingly bad decisions is vindicated, Proud Boys and other right-wing fringe characters celebrated like they won the Super Bowl and the implications for the future of this nation run deep.

If you don’t believe there are racial implications – imagine this was a Black gunman running into a white crowd with a gun and understand how differently he would have been treated by our criminal legal system.

If you don’t believe there are racial implications, ask yourself why the defense struck 11 of the 12 potential Black juror – and the judge let them.

UC Davis Law Professor Jack Chin told me, “State legislatures all over created the right to carry fire arms loaded, loaded, concealed what ever in public.”

So decades ago he said Kyle Rittenhouse carrying a loaded weapon in Kenosha, Wisconsin, would like have been stopped and arrested – now it’s legal.

At the same time, the right to self-defense has been dramatically expanded.

“Both of those things come from the national rifle association,” he said.  It used to be that the defendant bore the burden of proving the defense.  “All states have changed the burden of proof to require the prosecution to disprove the defense beyond a reasonable doubt.”

That means that if the juror thinks by clear and convincing evidence that this is a cold blooded murder, but if there is a reasonable doubt that the person is acting in self-defense, that jury has to acquit, Chin argued.

“That’s the law in all 50 states now, it’s designed to let people use self-defense more freely, pull the trigger more freely,” he said.  “The Rittenhouse case went just the way the changes that have been pressed intended them to go.”

That’s the same thing that comes from the NY Times with their interview of Cecelia Klingele, a University of Wisconsin law professor

“When people look at this, and they’re feeling frustrated, they’re not recognizing just how high the prosecutors’ burden is here,” she said.  “It was a real uphill battle to get out from under self-defense.”

“The acquittal points to the wide berth the legal system gives to defendants who say they acted out of fear, even if others around them were also afraid,” the Times writes.

“Do you look at the choice to go to a heated, confrontational area with a weapon that would be scary to a lot of people?” said Samuel Buell, a former federal prosecutor who teaches at Duke University School of Law, speaking of Mr. Rittenhouse. “You can’t really say that he doesn’t have a right to do that because of the status of gun laws.”

“If we’re going to have a country in which guns are pervasive and the law has little or nothing to say about where and when one may carry a gun and display a gun,” Mr. Buell said, “then we are going to have a situation where self-defense law can’t really handle it.”

This is really the point that alarms me most.

In my view this isn’t or shouldn’t be self-defense.  As the Prosecutor argued and I think correctly, “You cannot claim self-defense against a danger you create.”

The problem that the prosecutor has here – other than as many people suggest, he just made a bad showing of the evidence – there is a subjective element here – does bringing the gun by itself show that Rittenhouse incited the situation that led to the need for self-defense.

For DA Binger, he argued, this was akin to an active shooter situation,  He argued, “It is entirely reasonable for that crowd to believe at that moment that he is a threat to kill again.”

This is where I see the true danger in this ruling.  There are two things happening kind of simultaneously.  One is that we continue to see the active shooter situations – the Parkland, Florida, the Virginia Tech, the Columbine situations.

What we know from those is that the police are not going to get there in time to prevent large loses of life, even when they get their they might not engage and it is really up to citizens to either hide, flee, or confront.

At the same time, the NRA and gun rights advocates have pushed to allow open carry of weapons in public.  And over the last year, increasingly we have seen people go to protests with guns.

So you are bringing a gun into an emotional and volatile situation.  And as Jack Chin pointed out in our interview, Rittenhouse is not a trained police officer, he’s a 17 year old kid.  He doesn’t have the experience or training on de-escalation or lesser lethal force, etc.  And he’s making life or death situations as 17 year old who is scared and clearly at some point under duress.

This is a recipe for disaster.

When people see Rittenhouse with his baby face and his weapon, are they thinking, no worries, he is here to protect property that he doesn’t own or are they thinking he is here to shoot a lot of people.

If they give him the benefit of the doubt – that could result in the lose of life to many people including the individuals making that call.  If they attempt to disarm him, what this ruling says, is he has the right to use deadly force.

We’ve been told that a good guy with a gun is the answer to crime and mass killings – but is the good guy with a gun a 17 year old kid or someone else with a strong ideological bent going in and throwing gas on an already smoldering fire?

None of that speaks to Rittenhouse’s actual motivation.  The prosecution was not able to introduce evidence of a video where Kyle Rittenhouse was threatening to shoot men he believed were shoplifting at a pharmacy.

“Bro, I wish I had my (expletive) AR, I’d start shooting rounds at them,” Rittenhouse says, according to the motion.

In my view, this acquittal sets a very dangerous precedent for future confrontations.  And while this one happened to be in Wisconsin, given the similarity of state laws elsewhere, we can see the potential for this kind of bloodshed anywhere that we have open carry laws.

“The message that this case sends is to shoot first, ask questions later,” said Kami Chavis, director of the criminal justice program at Wake Forest Law.

“What happened in Kenosha isn’t some fluke,” said Nick Suplina, senior vice president for Law & Policy at Everytown for Gun Safety. “It’s the logical consequence of state and federal laws being written by the N.R.A. and going unopposed for decades.”