Not guilty by jury, but culpable for shootings

Prosecutor Thomas Binger said in his closing argument at Kyle Rittenhouse’s murder trial: “You can’t claim self-defense for a danger that you create.”

It turns out you can, at least in Wisconsin. But just because the 18-year-old was found not guilty on all five charges he faced does not mean he is morally innocent.

Given the facts of the case and the legal standards at play, the jury’s decision after four days of deliberations was neither surprising nor necessarily a travesty of justice. Self-defense doctrine has been stretched in many states over recent decades.

Wisconsin law allowed Rittenhouse to fire his gun to “prevent imminent death or great bodily harm” to himself. The burden of proof was on prosecutors to show, beyond a reasonable doubt, that Rittenhouse was not acting in self-defense.

The first man Rittenhouse shot was mentally ill and came after his gun. The second man he shot swung a skateboard at him. The third man he shot, who survived, pointed a gun at him.

Rittenhouse showed no contrition or remorse for taking the lives of two other human beings or seriously wounding a third. He broke down sobbing during his testimony, not because of what he did but because of the danger he said he felt. “I didn’t do anything wrong,” Rittenhouse testified.

But of course he did. Rittenhouse had no business owning or possessing his Smith & Wesson M&P 15 or being in Kenosha, Wis., that night. A friend bought the gun, which Rittenhouse paid for using a government stimulus check, because he was too young to purchase the assault rifle.

The rifle gave the boy — and that’s what he was last year — unearned swagger. Wisconsin is an “open carry” state, but his behavior was needlessly provocative. Rittenhouse crossed state lines from his home in Illinois and foolishly put himself in harm’s way. He was the only person to pull a trigger that night.

Don’t underestimate the power of Rittenhouse’s tears — or the audible sobbing from his mother in the courtroom — had on the jury of seven women and five men. Also don’t discount the significance of the limestone courthouse’s proximity to the scene of the shootings. The building was at the center of the demonstrations that summer after police shot a knife-wielding Jacob Blake. Prosecutors went out of their way to reassure the jury that it was reasonable for residents to be afraid amid the rioting and looting that followed.

That said, a series of decisions by Judge Bruce Schroeder may have tipped the scales in Rittenhouse’s favor. He forbade the prosecution from calling the three men Rittenhouse shot “victims.” The judge called it a “loaded term” and said they should be called “decedents” or “complaining witnesses.”

More significantly, Schroeder blocked prosecutors from introducing three pieces of evidence that illustrated the trigger-happy defendant’s propensity for violence. A video recorded 15 days before the bloodshed in Kenosha shows Rittenhouse lamenting that he didn’t have his gun as he watched what he believed were shoplifters exiting a CVS store. “Bro, I wish I had my [expletive] AR,” he says. “I’d start shooting rounds at them.”

Second, Rittenhouse appeared in January with members of the Proud Boys, a group that embraces political violence. Third, the judge wouldn’t allow the prosecution to introduce evidence showing that Rittenhouse attacked a woman in June 2020 as she was fighting his sister.

The judge ruled that none of this was relevant to what happened the night of the shootings. The jury should have gotten the chance to decide for themselves whether Rittenhouse’s state of mind meant he was looking for trouble.

It was disappointing that the judge dismissed, citing a technicality, the sixth charge against Rittenhouse: possession of a dangerous weapon by a person under 18. This misdemeanor would have carried up to nine months in jail. But there’s an exception for long-barreled weapons, ostensibly intended to allow teenagers to go hunting with their parents.

Since the start of the trial, I haven’t been able to stop thinking about Johnny Cash’s song “Don’t Take Your Guns to Town.” The haunting ballad, released in 1958 but apparently timeless, tells the story of a young cowboy named Billy Joe who grows restless on the farm. His mother pleads with him to leave his gun at home. He laughs, kisses her and says, “Your Billy Joe’s a man.”

He assures her he’d never shoot without a cause. Then Billy Joe gets in a bar fight when a dusty cowpoke laughs at him. Filled with rage, he reaches for his gun to draw. But the stranger fires first. As a crowd gathers, they wonder at the young man’s final words: “Don’t take your guns to town.”

Rittenhouse is lucky he didn’t share Billy Joe’s fate. After the first two men were wounded, Gaige Grosskreutz pointed a Glock pistol at Rittenhouse, perceiving him as an active shooter, but Grosskreutz said he couldn’t bring himself to pull the trigger. Rittenhouse had no such qualms.

Grosskreutz, now 27, testified that he was in Kenosha as a legal observer for the American Civil Liberties Union. The ACLU’s Wisconsin chapter put out a statement the day before Rittenhouse’s shooting spree saying the Democratic governor’s deployment of the National Guard to Kenosha, amid mass protests, was “unnecessary.”

This saga disproves the old saw that the only way to stop a bad guy with a gun is a good guy with a gun. For those who foolishly cry “defund the police,” this mess should serve as the latest proof point for why there’s an overwhelming public interest in trained, uniformed officers keeping the peace — instead of armed, out-of-town vigilantes.

Rittenhouse has already become a folk hero on the radical right, and the acquittal will fuel that false narrative. What’s scariest about Friday’s verdict is that it will embolden other Billy Joes and Gaiges and Kyles to take their guns to town. In doing so, they’ll put themselves — and all of us — at risk.

This column first appeared in the Washington Post.