Self-defense

Iwent to law school. I am not a lawyer. So don’t mistake the following for legal advice. Nevertheless, I have before me the Wisconsin statute covering “self-defense and the defense of others.” I have read it and can say in general terms what it means. Follow along, if you’d like.

It states: “A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”

The first thing we should understand is that by invoking the privilege of self-defense, you’re technically admitting to a crime. A defense is a legal reason you should be held blameless even if the charges against you are true. Yes, you shot those people, but you had a rationale the law recognizes as valid. You committed the crime of battery or assault or homicide in order to prevent something just as bad or worse from happening. Still, something regrettable happened.

What the statute says is that if you think someone is trying to mug you or beat you up or kill you or threatening to do those things, you can protect yourself. Your suspicion has to be reasonable, which is something a judge or jury (or prosecutor) might decide, and about which reasonable people might disagree. There’s a lot of room for interpretation here — a toy gun is not as lethal as a real gun but, depending on the circumstances, it might be just as threatening.

Generally, if someone points a gun at you, you probably can shoot them. But if someone throws a bottle of water at you and you shoot them, you might not be able to avail yourself of the defense.

There’s a lot of stuff that needs to be figured out, and some things are simply unknowable. We can’t get inside people’s heads; that’s why we have trials, to try to find some credible version of the truth.

That’s only the first section of the statute. It goes on to state that you can’t claim the privilege of self-defense if you are “engaged in a criminal activity.” This would seem to exclude Kyle Rittenhouse, the 17-year-old accused of shooting two people to death during a civil disturbance in Kenosha last week, from exercising the privilege. He wasn’t legally allowed to open carry the rifle he brought with him across state lines from his home in Illinois.

That might seem a little tickytacky, but it is the law. Not my opinion.

Let’s forget for a second how and why Rittenhouse came to be in the middle of the fracas in Kenosha and allow that he might have had good reason to be scared. He might have felt threatened. But there’s another problem with him invoking the privilege of self-defense under Wisconsin law.

Other things being equal, you can meet deadly force with deadly force. A guy threatens you with a knife, OK, you can shoot that guy, if he’s close enough to you to follow through on his threat. A guy shoots at you, then you can use your awesome sniper skills to kill him even if he’s 1,100 yards away.

What you cannot do is shoot someone because you’re afraid they’re going to rough you up a bit. What you cannot do is shoot someone who is tagging property with graffiti. What you cannot do is shoot some guy who throws a bag of trash at you.

And you really cannot chase after that guy after he’s run away, or retreated as they tend to say in court. Even if someone has threatened you with a knife, you can’t chase after them and shoot them. Once the threat ceases to be a threat, you no longer have that privilege.

Furthermore, the statute says “[a] person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm.

“In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.”

That is a mouthful. But basically what it says is that if you act like a jackass and make people want to beat you up, you can’t shoot them. If, as is alleged and as the digital evidence seems to show, Rittenhouse rushed at protesters with his rifle, he’s forfeited his right to claim self-defense. He was being provocative, and presenting himself as a threat.

And when he allegedly fired into a crowd that not only included people who might throw trash at him (and people who might have shot at him) but protesters legitimately concerned about police brutality and systemic racism who had every right to assemble, he became an aggressor, a threat to the innocent.

I imagine he was scared when the protesters started chasing him, but you could argue that they were acting in defense of themselves and others. Of course, they might be disqualified from invoking the privilege of self-defense for some of the same reasons Rittenhouse might be disqualified, but that’s another thread to pull.

The upshot of all this is that Rittenhouse might have a tough time of it if, as a lot of Facebook lawyers are suggesting, he relies on the privilege of self-defense.

That said, a lot of my fellow Americans don’t really care much about the rule of law, and it is also possible that a jury will decide to do what they believe is equitable and fair rather than what the law says they should do. And philosophically, I have no problem with that.

I do think our justice system tends to treat the Kyle Ritten houses of the world more leniently than they do the Jacob Blakes, who I suppose might have posed some kind of threat to the nervous officer who shot him seven times in the back, or the Breonna Taylors, who probably once knew somebody involved in the drug trade, or George Floyd, who simply wouldn’t comply with an officer’s instructions.

That aside, I tend to think Rittenhouse is a frightened child who fell under the influence of irresponsible authority figures, some of whom are even now proclaiming him a hero. I wouldn’t send him to prison for the rest of his life for what he did on the streets of Kenosha; I’d be willing to entertain the possibility that his capacity for making reasonable judgments had been seriously compromised by living in a nuthouse nation where “law and order” is so much clampdown code and Blue Lives Matter most of all.

I’m not a lawyer, but I’ll give you this advice: Somebody might be able to shoot someone in the middle of Fifth Avenue with impunity, but it probably isn’t you.