A tale of two shootings

The Kyle Rittenhouse and Ahmaud Arbery cases have similarities but are very different.

There are two big trials going on right now. The trials are across the country from each other, but there are common themes that echo in both cases. Despite the similarities, the cases are very different and may well have different outcomes.

The two cases are those of Kyle Rittenhouse, the then-17-year-old who shot three people during rioting in Kenosha, Wisconsin last August, and the three men who shot and killed Ahmaud Arbery in Glynn County, Georgia in February 2020. The cases don’t seem very similar on the surface, but there are some disturbing common threads that are woven through both cases.

I’m going to stop right here and note that I am not a lawyer. Nor do I play one on tv. I’m just a layman who can google relevant laws and apply them to the details of the cases as I understand them. I don’t claim to be an expert on the law or to have all the facts in the cases at hand.

I wrote about Arbery’s death last January after the details of the killing had emerged. Originally, the killers claimed that Arbery, who was black, attacked them after the three local men, who were all white, had chased him down in a pickup truck and tried to ask him questions about a string of local robberies per the Brunswick News.

No charges were originally filed against the men, one of whom, Greg McMichael, was a former Glynn County police officer. McMichael’s son, Travis, and their neighbor, William “Roddy” Bryan, were also involved in the incident. Travis was carrying a shotgun and struggled with Arbery before firing the fatal shots.

Arbery’s death would have been written off as a case of self-defense had a defense attorney not released a video that Bryan, driving a second vehicle, had made of the incident in May 2020. The video contradicted the account of the killing that had been self-defense because it showed that the McMichaels, with Greg riding in the pickup bed and carrying a pistol, had attempted to interdict Arbery, who was jogging. Travis gets out of the truck with a shotgun, struggles with Arbery, and gunshots are heard.

The subject of a citizen’s arrest has been raised in the case, but the responding officer’s testimony at the trial this week indicated that there was no mention of a citizen’s arrest at the time. Officer Ricky Minshew said that Bryan told him that they had "blocked," "cornered" and "cut off" Arbery. It isn’t clear what reason the men gave Minshew for their actions, but they were allowed to leave.

What is clear is that Waycross Judicial Circuit District Attorney George Barnhill made a recommendation on February 24, before he was assigned to the case, that no arrests be made since Arbery initiated the fight and that the McMichaels’ actions were justified under Georgia’s citizen’s arrest law (which has since been changed). Barnhill later recused himself since his son worked in the Glynn County prosecutor’s office, but the Georgia Attorney General is investigating his actions.

The First Coast News reports that Jackie Johnson, the Glynn County DA who reached out to Barnhill and who allegedly intervened to prevent the arrest of the McMichaels, has since lost re-election and been indicted on charges of violation of the oath of a public officer and obstruction of law enforcement officers. So far, no charges have been made against Barnhill.

The McMichaels ran into two problems in their defense. The first is that Georgia’s old citizens’ arrest law required “immediate knowledge” of an offense. The McMichaels did not meet this standard since they only saw a jogger that they considered suspicious.

Arbery had entered a home under construction and was caught on surveillance video, but the McMicheals did not know this at the time. Further, entering a building under construction is not a crime in Georgia. There is no evidence that Arbery took anything or damaged the house. Police reported that he did not even have identification when they examined his body. He was identified by his fingerprints.

The second problem is that self-defense does not apply if the person claiming self-defense was “the aggressor.” Self-defense also does not apply if a person provokes an attack or if the violence occurs in the commission of a crime… such as attempting to illegally detain an innocent man. In other words, you can’t create a dangerous or illegal situation and then claim self-defense.

And that brings us to Kyle Rittenhouse. Like the McMichaels, Rittenhouse is claiming self-defense in his triple shooting that left two people dead and a third wounded, but is that the case under the law?

For starters, Rittenhouse was 17 years old at the time of the shooting. That means that his possession of the rifle was probably not legal in the first place.

Rittenhouse was a resident of Illinois, where firearms purchases are contingent on the ability to obtain a Firearms Owner’s Identification Card (FOID). Illinois law stipulates that the minimum age for a FOID is 21 unless the applicant is sponsored by a parent or legal guardian.

Rittenhouse apparently did not have a FOID. In an interview last year, he told the Washington Post that he bought the gun with money from his COVID unemployment payments. Since he couldn’t buy the gun himself, he gave the money to a friend who purchased it for him. This is called a “straw purchase” and it is illegal, but in a twist, the friend was in Wisconsin and Illinois prosecutors could find no evidence that Rittenhouse possessed the gun in that state. (The then-19-year-old Wisconsin man that bought Rittenhouse’s gun is being charged in the straw purchase and has admitted that the pair knew they were breaking the law.)

So what about Wisconsin law? Wisconsin law follows federal law in prohibiting the possession of firearms by people under 18 with certain exceptions. These exceptions include target shooting under adult supervision, military service, and hunting. The hunting exception bears further scrutiny since Wisconsin law does allow 17-year-olds to hunt with a gun without being under adult supervision. However, the state requires a hunting license and hunter safety course. Rittenhouse seems to have not met these requirements and a defense that his gun was legal under hunting laws would beg the question of exactly what he was hunting that night.

So Rittenhouse apparently broke the law simply by possessing his gun and carrying it on the streets of Kenosha, but the shootings are a different matter. Like Georgia, Wisconsin does allow for the use of deadly force in self-defense, but there are restrictions on the claim.

You can read Wisconsin’s full statute here, but there are some exceptions that might be relevant. First, self-defense does not apply if “the actor [person claiming self-defense] was engaged in a criminal activity.” The fact that Rittenhouse was carrying his gun illegally means that he was engaged in criminal activity. This alone may be enough to sink his self-defense claims.

A second exception states, “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.” So, Rittenhouse is not entitled to claim self-defense unless he reasonably believed that he was in imminent danger. This is a very subjective qualifier.

Third, “A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.” Again, this is subjective, but Rittenhouse does not seem to have been out for blood. The teen appeared in videos before the shooting that would probably rule out this exception without further evidence.

The self-defense tests have to be applied to all three shootings, however. The case may hinge on the first killing, that of Joseph Rosenbaum, which was captured on drone camera footage and a cell phone video. The videos show Rosenbaum running after Rittenhouse and throwing what appears to be a plastic bag before Rittenhouse turns and fires four times. ABC News has put together the best timeline that I can find of the events that night, but there are still large gaps and it is unclear what started the initial confrontation or why Rosenbaum was chasing Rittenhouse.

Richie McGinniss, a reporter from the conservative Daily Caller, testified that Rosenbaum tried to grab Rittenhouse’s gun per the News Observer, and Ryan Balch, a former army soldier patrolling with Rittenhouse, said that Rosenbaum was “hyperaggressive and acting out in a violent manner” as well as starting fires and throwing rocks. The defense has also suggested that a shot fired by someone else, just before Rosenbaum was shot, made Rittenhouse believe he was being attacked.

This matters because if the shooting of Rosenbaum was justified, then Rittenhouse can claim self-defense in the other two shootings. However, if Rittenhouse did not legally shoot Rosenbaum then self-defense would not apply in the killing of Anthony Huber and the wounding of Gaige Grosskreutz under the exception for criminal activity. The pair, along with others chasing Rittenhouse, may well have been operating under the belief that they were attempting to stop an active shooting or prevent a murderer from escaping.

The entire matter is confused and encompasses quite a few gray areas. Both sides could have reasonably believed that they were acting within the law (except for the fact that Rittenhouse knew that his gun was illegal) and the outcome of the trial will almost certainly depend on which point of view the jurors give more weight.

Taken together, the cases show how dangerous it can be to try to take the law into your own hands. Both Arbery’s killers and the self-appointed defenders of Kenosha were attempting to take the law into their own hands and ended up breaking laws themselves in the process. Defending yourself and your property is one thing, but what these people were doing is more akin to vigilantism than self-defense.

My personal opinion is that Kyle Rittenhouse should never have been on the street that night. Going to a neighboring state with an illegally purchased gun to patrol businesses to which he had no connection is a long string of bad judgments. (If a business owner really hired Rittenhouse, a minor with an illegal gun, to help protect his property, that was a bad decision as well and one for which the business might have legal liability.) I don’t believe that it would serve the best interests of anyone to let Rittenhouse get away scot-free, a verdict that would undoubtedly encourage future vigilante activity.

This isn’t to say that Rittenhouse is the only one to blame, however. The protesters who became violent and drew the armed militias into the area are also responsible. So are the police, who touched off the riot by killing Jacob Blake in a questionable shooting and encouraged the presence of Rittenhouse and his fellow paramilitaries. For that matter, the lax rules governing officer-involved shootings and qualified immunity for police also contributed to the environment that became explosive.

It is notoriously difficult to predict the outcome of jury trials in complicated cases. Even in cases that aren’t complicated, juries can go their own way and hand down surprising verdicts. Having said that, the case against Arbery’s killers seems tighter than the murder case against Rittenhouse. Prosecutors may have overreached with the charge of first-degree homicide Jurors might find a middle ground between acquittal and first-degree murder by finding Rittenhouse guilty of a lesser crime such as second-degree intentional homicide, which does not carry a mandatory life sentence per the Journal-Sentinel. At the very least, Rittenhouse should be convicted on the weapons charges.

The case against the McMichaels seems more cut and dried. Again, however, there can be surprises in jury trials, especially those that involve racially-charged cases.

The bottom line here is that if you are using a gun to defend yourself or your property in the course of normal events, you are probably within your rights. However, if you take it upon yourself to do the job of the police, you can quickly find yourself in legal trouble in the midst of a life-altering tragedy.

If you are going to carry a gun, it is your responsibility to know the laws of your state (or other states that you might visit) to ensure that you don’t inadvertently become the criminal. In any case, if lives aren’t in danger, it’s best to let the police do the jobs that they are trained and deputized to do.

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