Andrew Branca

Hello,

Today completed the third day of jury deliberations in the trial of Kyle Rittenhouse, with no verdict being achieved before the jury was sent home for the day.

There wasn’t much real action today, with the exception of a couple of notable events, and my own increasing belief that we’re dealing with a single hold-out juror for guilt, and that this juror is #54, the foreperson.

Posted By: Justin Collett

The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process. 

Rittenhouse Trial: What to Expect As Trial Starts Today

Today begins jury selection in the trial of Kyle Rittenhouse, who on August 25, 2020 shot three men in riot-ravaged Kenosha WI, killing two of them and grievously wounding the third.

Kyle is being tried on a variety of charges, including the felonies of intentional homicide, reckless homicide, attempted intentional homicide, two counts of reckless endangerment, as well as a misdemeanor charge of weapons possession by a minor.

The legal defense to the felony charges will be the legal justification of self-defense.  The legal defense to the misdemeanor weapons charge will be inapplicability on the facts, as well as unconstitutional vagueness.

Jury Selection Begins with 150 Prospective Jurors

With respect to jury selection, beginning today, Monday, November 2021, news media are reporting that the trial judge, Judge Bruce Schroeder, has ordered 150 prospective jurors to the courthouse tomorrow, to be subject to voir dire.

Judge Schroeder reportedly wants a total of 20 jurors seated, to consist of 12 who will deliberate a verdict plus 8 alternates.  The state and the defense will each have seven peremptory strikes to remove prospective jurors for reasons of preference.

Overview of the Events & Charges

On the night of August 25, 2020, 17-year-old Kyle Rittenhouse travelled from his home town of Antioch IL to the neighboring border town of Kenosha WI, where he had worked as a lifeguard and spent considerable time.

Kyle’s stated purpose was to help protect property from the riots, looting, and arson that had besieged the city since the lawful shooting of Jacob Blake by police two days earlier.  (Blake, a 29-year-old black man, non-compliant with lawful arrest, wielding a knife in his hand, and was climbing into a car full of children when police shot him.)

Kyle, trained in medical care, also intended to provide such care to anyone injured that he might come across.  For that purpose he carried with him a sizable first-aid kit.  In recognition of the violence rampaging through the city, Kyle also armed himself with an AR-15 pattern rifle (open carry of firearms is lawful in Wisconsin).

Count 1. First degree reckless homicide (Rosenbaum). At approximately 11:45pm amidst the chaos of August 25, 2020, Kyle would shoot and kill Joseph Rosenbaum, in claimed self-defense.  This would result in the first degree reckless homicide charge against Kyle, Count 1 in the criminal complaint, under § 940.02(1) First-degree reckless homicide..  If convicted of this charge Kyle is looking at up to 60 years in prison, plus an additional 5 years for having used a dangerous weapon.

Count 2. First degree reckless endangering (McGinnis).  Near to this scene was a reporter, Richard McGinnis, who had moments before been interviewing Kyle.  McGinnis would later tell police that he did not think that Kyle was handing his rifle safely.  This would result in the first degree reckless endangering charge against Kyle, Count 2 of the criminal complaint, under § 941.30(1). Recklessly endangering safety.  If convicted on this charge Kyle is looking at up to 12 years in prison, plus an additional 5 years for having used a dangerous weapon.

After shooting Rosenbaum, Kyle began to run towards a line of police officers who had created a vehicle barricade a short distance down the street.  During this flight to police Kyle was pursued by angry members of the mob, during which he would fall to the street.  Once fallen, Kyle was subject to violent attack by several men.

Count 3. First degree intentional homicide (Huber). One of the men who attacked Kyle was Anthony M. Huber.  While Kyle was struggling to get up from where he had fallen, Huber struck at Kyle’s head and neck with a heavy skateboard.  Kyle shot Huber, with fatal results.  This would result in the first degree intentional homicide charge against Kyle, Count 3 of the criminal complaint, under  § 940.01(1)(a). First degree intentional homicide.  If convicted on this charge Kyle is looking at life imprisonment—and, once again, an additional 5 years for having used a dangerous weapon.

Count 4. Attempted first degree intentional homicide (Grosskreutz). Another of the men who attacked Kyle was Gaige Grosskreutz.  While Kyle was fighting off the other attackers as he struggled to rise from the street, Grosskreutz approached Kyle initially with his hands up in a peaceful gesture, but then swiftly presented a pistol and rapidly closed on Kyle.  Kyle shot Grosskreutz, striking him in the right bicep, causing serious not but fatal injury.  This would result in the attempted first degree intentional homicide charge against Kyle, Count 4 of the criminal complaint, under 940.01(1)(a). First degree intentional homicide.  If convicted on this charge Kyle is looking 60 years in prison, plus an additional 5 years for having used a dangerous weapon.

Count 5. First degree reckless endangerment (unknown male). Another of the men who attacked Kyle was an unidentified male who attempted a flying drop kick onto Kyle as he lay in the street.  Kyle shot at this attacker, but missed.  This would result in the first degree reckless endangerment charge against Kyle, Count 5 in the criminal complaint, under § 941.30(1). Recklessly endangering safety.  If convicted on this charge Kyle is looking at up to 12 years in prison, plus an additional 5 years for having used a dangerous weapon.

Count 6. Unlawful Weapon Possession by Minor. Finally, Kyle also would be charged with unlawful possession of a weapon by a minor, Count 6 in the criminal complaint, under § 948.60(2)(a). Possession of a dangerous weapon by a person under 18.  This the sole misdemeanor charge specified in the criminal complaint, and if convicted on this charge Kyle is looking at up to 9 months in prison.

Now I thought it might be useful to do a quick legal analysis of these various counts against Kyle.  Well, brief for counts 2 through 6. With respect to Count 1, the shooting death of Joseph Rosenbaum, I’ll spend more time, as this first event is to some degree a lynchpin for all the others.

If the shooting death of Rosenbaum looks sketchy, that would tend to flow downhill to all the other defenses.  On the other hand, to the extent that the shooting death of Rosenbaum appears legally justified, that justification also flows downhill to all the others.

The Shooting of Joseph Rosenbaum: Count 1

The first man shot by 17-year-old Kyle Rittenhouse was 36-year-old Joseph Rosenbaum, in a car sales parking lot.  The language of the criminal complaint—presumably written to justify the felony charge of first-degree reckless homicide—provides a telling description of the circumstances immediately preceding Kyle’s shooting of Rosenbaum, much of it based video of the events as well as on the eyewitness testimony of reporter McGinnis.

The defendant [Kyle] is running across the Car Source parking lot.  Following the defendant is Rosenbaum, and trailing behind the defendant and Rosenbaum is McGinnis.

The video shows that as they cross the parking lot, Rosenbaum appears to throw an object at the defendant.  … A review of the second video shows that the defendant and Rosenbaum continue to move across the parking lot and approach the front of a black car parked in the lot. A loud bang is heard on the video … then Rosenbaum appears to continue to approach the defendant and get in near proximity to the defendant when 4 more loud bangs are heard.  Rosenbaum then falls to the floor.

The interview of McGinnis by detectives is described in the criminal complaint as follows:

Before the shooting, McGinnis was interviewing the defendant.  … The defendant had moved from the middle of Sheridan Road to the sidewalk and that is when McGinnis saw the male (Rosenbaum) initially try to engage the defendant.  McGinnis stated that as the defendant was walking Rosenbaum was trying to get closer to the defendant.  When Rosenbaum advanced, the defendant did a “juke” move and started running.  McGinnis stated that there were other people that were moving very quickly. McGinnis stated that they were moving towards the defendant.  McGinnis said that according to what he saw the defendant was trying to evade these individuals.

McGinnis described the point where the defendant had reached the car. McGinnis described that the defendant had the gun in a low ready position. Meaning that he had the gun raised but pointed downward.  …

McGinnis stated that he did not hear the two exchange any words. McGinnis said that the unarmed guy (Rosenbaum) was trying to get the defendant’s gun. McGinnis demonstrated by extending both of his hands in a quick grabbing motion and that as a visual on how Rosenbaum tried to reach for the defendant’s gun.  … McGinnis said that [Rosenbaum] definitely made a motion that he was trying to grab the barrel of the gun.  McGinnis stated that the defendant pulled it away and then raised it.  McGinnis stated that right as they came together, the defendant fired. McGinnis said that when Rosenbaum was shot, he had leaned in (towards the defendant).

I’ll remind everyone that this narrative of events is not the defense explanation of what happened between Kyle and Rosenbaum—it’s the explanation of events provided by the state that is prosecuting Kyle on a charge of murder for shooting Rosenbaum under these circumstances.

What’s described here is a Kyle Rittenhouse desperately fleeing a relentlessly pursuing Joseph Rosenbaum, who was intent on fighting Kyle for control of the rifle.  Unmentioned in the criminal complaint, but in evidence as a result of FBI interviews of bystanders, is that earlier in the evening Rosenbaum had threatened to kill Rittenhouse.

Even when faced with the relentlessly pursuing and self-declared murderous Rosenbaum, Kyle did not fire until Rosenbaum had rushed him, arms outstretched for the rifle, and actually achieved contact with the 17-year-old.

Kyle is, of course, justifying the shooting death of Rosenbaum as lawful self-defense.  That means that Kyle must be acquitted of this charge of reckless homicide unless the state can meet its burden to disprove that claim of self-defense beyond a reasonable doubt.

It might be useful to do a quick “5 Elements of Self Defense” analysis of this confrontation, to assess the viability of that self-defense claim.

5-elements

Innocence: Clearly it was Rosenbaum who was the physical aggressor here, and Kyle was the victim of that unlawful attack. This element is consistent with self-defense on these facts.

Imminence:  The attack Kyle was defending himself against was actually in progress, and so qualifies as an imminent attack. This element is consistent with self-defense on these facts.

Proportionality:  By seeking to seize control of Kyle’s rifle, Rosenbaum was apparently arming himself for the purpose of carrying out his earlier death threat against Kyle—and, simultaneously, attempting to disarm Kyle and leave him defenseless.  Rosenbaum’s attack is therefore deadly in nature, justifying a proportional deadly force defense by Kyle.  This element is consistent with self-defense on these facts.

Avoidance:  Wisconsin is a stand-your-ground state, so the element of Avoidance would not normally apply in an otherwise lawful act of self-defense. Even if it did apply, however, Kyle was in desperate flight from Rosenbaum, who sustained his relentless pursuit until the point of actual contact.  If Avoidance did impose a legal duty to retreat, Kyle would have met that duty.  This element is consistent with self-defense on these facts.

Reasonableness:  The circumstances facing Kyle would certainly justify a subjectively genuine fear of deadly bodily harm, and there is nothing about Kyle’s perceptions or reactions to those events which were those of an unreasonable person—this is readily assessable from the video and eyewitness accounts of what happened. This element is consistent with self-defense on these facts.

In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can disprove beyond a reasonable doubt Kyle’s claim of self-defense with respect to Rosenbaum.

Conclusion: The shooting of Rosenbaum by Kyle was lawful self-defense.

Reckless Conduct Towards Richard McGinnis: Count 2

The sole grounds for the claim of felony reckless conduct towards Richard McGinnis appears to be found in a single sentence from the criminal complaint:

McGinnis stated that he (McGinnis) has handled many ARs and that the defendant was not handling the weapon very well.

Even taken at face value, this is not a claim of recklessness—intentionally creating an unjustified risk of death or serious bodily injury, and intentionally disregarding that risk.

First, there is no indication of any particular intent on the part of Rittenhouse. Second, the phrase used in the criminal complaint, “very well,” falls vastly short of the threshold for a claim of criminal recklessness.  T

Further, to the extent any risk may have been created by Kyle merely having the gun in hand, the circumstances of the rioting, looting, and arson besieging the surrounding blocks and Kyle’s subsequent need to use that rifle to save his own life would suggest that the risk was not unjustified, and therefore would not be reckless. Indeed, a great many people—including Gaige Grosskreutz himself—were armed in the vicinity that evening.

In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can prove Kyle’s conduct with respect to Richard McGinnis to constitute reckless endangerment.

Conclusion:  Kyle’s conduct with respect to McGinnis does not constitute reckless endangerment.

Shooting of Anthony Huber:  Count 3

With respect to the shooting death of Anthony Huber, the evidence in support of self-defense is, if possible, even stronger than it was in the shooting of Joseph Rosenbaum.

At this point Kyle was in full flight towards the police line a block or so down the street, clearly fleeing for purposes of safety after having survived the attack by Rosenbaum.

He was being pursued by an angry and violent mob, during which he fell to the street—whether pushed or tripped, the fall was clearly the result of fleeing his pursuers.

Once fallen to the street, Kyle was immediately attacked by Huber, who swung a heavy skateboard at Kyle’s head, and Kyle shot him in response to this attack.

Innocence: Clearly Huber was the initial aggressor in this confrontation, as Kyle was not threatening Huber in any way until Huber struck with his skateboard.   This element is consistent with self-defense on these facts.

Imminence:  Huber’s attack was in progress, and therefore imminent. This element is consistent with self-defense on these facts.

Proportionality: Striking someone in the head with a skateboard is readily capable of inflicting death or serious bodily injury, and thus a deadly force attack justifying a deadly force defense. This element is consistent with self-defense on these facts.

Avoidance: Again, Wisconsin is a stand-your-ground state, but in any case safe retreat was not possible under the circumstances, and so Kyle would have satisfied any duty to retreat had it existed.  This element is consistent with self-defense on these facts.

Reasonableness: The circumstances warranted a subjective fear of imminent death or serious bodily injury, and there would have been nothing unreasonable about such a perception.  This element is consistent with self-defense on these facts.

In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can disprove beyond a reasonable doubt Kyle’s claim of self-defense with respect to Huber.

Conclusion: The shooting of Huber by Kyle was lawful self-defense.

The Shooting of Gabe Grosskreutz: Count 4

Near simultaneously with Huber’s attack upon Kyle, Gabe Grosskreutz also closed on the fallen Kyle.  Initially Grosskreutz displayed his hands, palm forward, in an inoffensive manner.

This, however, was merely a ruse to close proximity, as Grosskreutz quickly produced a pistol in his right hand as he reached Kyle.  Kyle responded by shooting at Grosskreutz, striking him in the bicep and causing the injured Grosskreutz to drop his pistol to the street.

Innocence: Clearly Grosskreutz was the initial aggressor in this confrontation, closing rapidly on the fallen Kyle with pistol in hand, as Kyle was not threatening Grosskreutz in any way until Grosskreutz approached him with pistol in hand.  This element is consistent with self-defense on these facts.

Imminence. The attack by Grosskreutz was in progress, and therefore imminent. This element is consistent with self-defense on these facts.

Proportionality: Grosskreutz attacked Kyle with a pistol in hand, clearly a deadly force attack justifying a deadly force defense. This element is consistent with self-defense on these facts.

Avoidance: Again, Wisconsin is a stand-your-ground state, but in any case safe retreat was not possible under the circumstances, and so Kyle would have satisfied any duty to retreat had it existed.  This element is consistent with self-defense on these facts.

Reasonableness:  The circumstances warranted a subjective fear of imminent death or serious bodily injury, and there would have been nothing unreasonable about such a perception.  This element is consistent with self-defense on these facts.

In short, there would appear to be no reason to believe, to a reasonable degree of legal certainty, that the state can disprove beyond a reasonable doubt Kyle’s claim of self-defense with respect to Grosskreutz.

Conclusion: The shooting of Grosskreutz by Kyle was lawful self-defense.

Reckless Conduct Towards Unknown Male: Count 5

Among the first attacks upon Kyle when he initially fell to the street while running to the safety of the police line was a flying stomping attack by an unknown male.  Kyle fired at this individual, but apparently missed.

Innocence:  Again, clearly the unknown male was the initial aggressor in this confrontation, jumping on a fallen Kyle who was no threat to him prior to his attack.  This element is consistent with self-defense on these facts.

Imminence: The attack by the unknown male was in progress, and therefore imminent.  This element is consistent with self-defense on these facts.

Proportionality:  A full-body falling drop kick of this type is readily capable of causing serious bodily injury, making it a deadly a deadly force attack, justifying a deadly force defense.  This element is consistent with self-defense on these facts.

Avoidance: Again, Wisconsin is a stand-your-ground state, but in any case safe retreat was not possible under the circumstances, and so Kyle would have satisfied any duty to retreat had it existed.  This element is consistent with self-defense.  This element is consistent with self-defense on these facts.

Reasonableness:  The circumstances warranted a subjective fear of imminent death or serious bodily injury, and there would have been nothing unreasonable about such a perception.  This element is consistent with self-defense.  This element is consistent with self-defense on these facts.

Criminal recklessness is based upon the unjustified creation of a risk of death, and intentionally ignoring that risk.  In this case the risk of death created by Kyle towards the unknown male was, to a reasonable degree of legal certainty, lawful self-defense, therefore legally justified, and therefore by definition not criminally reckless.

Conclusion:  Kyle’s conduct with respect to the unknown male attacker does not constitute reckless endangerment.

The Unlawful Possession of a Gun Charge: Count 6

Given that this charge is a mere misdemeanor, and that I have previously done a comprehensive legal analysis of this charge elsewhere, I’ll simply direct you all to that analysis at lawofselfdefense.com/Rittenhouse, where you can find all our aggregated coverage of the Rittenhouse case.

Further, a conviction on this charge would in no way diminish the self-defense justification and lack of criminal recklessness we’ve already discussed with respect to the other charges.

I will note in passing that at a recent pre-trial hearing even Judge Schroeder himself expressed confusion at how the relevant gun law statute was to be applied, suggesting that the statute in question is unconstitutionally vague on its face. If so, the charge should be dismissed before trial, or alternatively the jury not instructed on the charge before  its deliberations.

Bottom Line

The bottom line is that if the verdict in this case is based on actual merit, and on the actual evidence on applicable law, the outcome ought to be not guilty on every felony count.

As for the gun charge, nobody seems agreed on how that law is to apply, but my own analysis suggests it’s simply inapplicable on the facts of the case, or unconstitutionally vague.

OK, folks, don’t forget to join us all starting today for our daily coverage of the Rittenhouse trial, starting from jury selection and continuing through the verdict (and, heaven forbid it should come to this, sentencing).

OK, folks, that’s all I have for you on this topic.

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

Law of Self Defense © 2021

All rights reserved.

ANDREW BRANCA Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert.  Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media.  Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online. Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.  Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.

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