What law applies in Kenosha shooting?
Open-carry, self-defense called into question
Within hours of two fatal shootings of protesters by an armed counterprotester late Tuesday in Kenosha, the internet was flooded with videos of the incident that raise lots of questions.
Was it legal to carry a rifle at the protests?
If a person is not otherwise prohibited from possessing a firearm, it is legal to carry any legal firearm openly in Wisconsin. Before Wisconsin passed a concealed carry law in 2011, gun rights advocates organized open-carry group outings and won acquittals or dismissals for several people arrested during the events. More recently, gun owners have been carrying assault-style rifles at demonstrations at state capitols against stay-at-home orders during the early months of the pandemic this spring.
Could the suspect carry the rifle legally?
Kyle Rittenhouse, a 17-year-old militia member who has been arrested and is facing a homicide charge in the matter, was not old enough to legally carry the assault-style rifle he had, according to statutes, which say anyone under 18 who "goes armed" with any deadly weapon is guilty of a Class A misdemeanor. John Monroe, a lawyer who specializes in gun rights cases, believes an exception for rifles and shotguns, intended to allow people age 16 and 17 to hunt, could apply.
He could be in violation of having a gun within a gun-free zone, if there was a school nearby.
Can you use deadly force to protect property?
No. Videos from earlier Monday night showed Rittenhouse apparently guarding a used car lot, along with other men with guns. Comments on social media about some of the videos, from purported witnesses, indicated that Rittenhouse may have verbally confronted someone who was attempting to damage cars, and that the person then began chasing Rittenhouse. It's unclear exactly what prompted the initial confrontation.
Was Rittenhouse acting in self-defense when he fired his weapon?
Many gun-rights advocates believe he was, based only on watching the
videos, but that would ultimately be a question for a jury to answer.
Nik Clark, president and CEO of Wisconsin Carry, a gun rights advocacy group, who instructs classes for those obtaining concealed carry permits, thinks Rittenhouse followed the principles of such courses.
"We teach to retreat when possible," Clark said. "He's fleeing, but the threat follows him." He thought Rittenhouse showed restraint in not immediately shooting one of the people he later shot in the elbow after the man first halted his approach to Rittenhouse and then lunged at him.
Others will likely argue the people going after Rittenhouse in the street, after the first shooting, were attempting to detain him for police or get him to drop the gun and avoid further shootings.
What charges will Rittenhouse ultimately face?
Kenosha officials did not indicate that at a news conference Wednesday. Lake County, Illinois, records suggest that at least one death will be charged as first-degree intentional homicide, which carries a mandatory life sentence. The case could resovle in a lesser charge through plea bargaining. Rittenhouse could face a reckless homicide charge in the second death that, according to video, appears to be in reaction to an attack.
Does Wisconsin have a stand-your-ground law?
No. Such laws, like in Florida, say you can threaten or use deadly force in response to a perceived threat of great bodily harm without first having to try to retreat or escape the threat. Wisconsin does recognize the so-called Castle Doctrine, which presumes a person acted lawfully in self-defense when they use deadly force within their home, vehicle or business. But that presumption can be overcome with evidence that the use of force was unreasonable.
Does qualified immunity apply?
No. The doctrine has been discussed recently as the reason police officers are rarely held liable for shooting people in the line of duty. But the doctrine does not apply to a non-law enforcement person using deadly force.