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NBC15 Investigates: Chaos in Kenosha, the questions that remain

NBC15 took a deep dive into the events of Aug. 25, 2020, to learn more about issues of self-defense, gun laws, and race pertaining to the case of Kyle Rittenhouse
Published: Sep. 28, 2020 at 10:30 PM CDT
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KENOSHA, Wis. (WMTV) - On Aug. 23, Jacob Blake was shot by a Kenosha police officer. Two days later, during a night of unrest in response to the shooting of Blake, two people died in Kenosha, and another was injured. The alleged shooter that night was 17-year-old Kyle Rittenhouse.

Rittenhouse, who is from Antioch, Illinois, is now facing six charges, including first degree intentional homicide, use of a dangerous weapon, as well as possession of a dangerous weapon by a person under 18.

According to the criminal complaint out of Kenosha County, Rittenhouse is facing a count of first degree reckless homicide, use of a dangerous weapon; first degree recklessly endangering safety, use of a dangerous weapon; first degree intentional homicide, use of a dangerous weapon; attempt first degree intentional homicide, use of a dangerous weapon; first degree recklessly endangering safety, use of a dangerous weapon; and possession of a dangerous weapon by a person under 18.

The complaint names Joseph D. Rosenbaum as the victim pertaining to the first degree reckless homicide, use of a dangerous weapon charge, and names Anthony M. Huber as the victim in the first degree intentional homicide, use of a dangerous weapon charge. Richard McGinnis is named under Count 2, first degree recklessly endangering safety, use of a dangerous weapon, and Gaige P. Grosskreutz is named in Count 4, attempt first degree intentional homicide, use of a dangerous weapon.

Rittenhouse’s legal representation says Rittenhouse acted in self-defense. A statement from the law firm Pierce Bainbridge reads that the “state and local government failed,” and that Rittenhouse was “defending himself from a relentless, vicious, and potentially deadly mob attack in Kenosha, Wisconsin.”

According to the statement from Pierce Bainbridge, Rittenhouse finished work as a community lifeguard in Kenosha on the 25th, then cleaned up graffiti at a local high school before he “stood guard” at a local business, armed with a rifle. According to the criminal complaint, the rifle was a Smith & Wesson AR-15 style .223 rifle. According to the statement from Pierce Bainbridge, the gun was in Wisconsin and “never crossed state lines.”

According to the statement, that night, Rittenhouse was “accosted by multiple rioters who recognized that he had been attempting to protect a business the mob wanted to destroy.” The statement says this “mob” was “determined to hurt Kyle,” and that they began chasing Rittenhouse. Rittenhouse “reacted instantaneously and justifiably with his weapon to protect himself, firing and striking the attacker,” said the statement. After, the statement said Rittenhouse “fled,” was attacked, and fired shots at his “immediate attackers.”

In the statement, Rittenhouse’s legal representation is alleging Rittenhouse acted in “self-defense” when confronted with “potentially deadly mob attack” and “immediate attackers.” NBC15 Investigates took this case to legal experts, to unpack how the 17-year-old was armed with the gun in the streets of Kenosha, what the self-defense argument entails, and how, if at all, race played a role.

According to Wisconsin state statute, under section 948.60 which addresses possession of a dangerous weapon by a person under 18, “any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.”

Here, “dangerous weapon” includes any firearm, loaded or unloaded. This section also makes exemptions for those under 18 with a dangerous weapon being used in target practice under adult supervision, or if they are a member of the armed forces or national guard who has the weapon in the line of duty.

NBC15 Investigates asked legal experts about the self-defense argument.

Tom Grieve, an attorney at law at Grieve Law LLC, said regardless of what the jury decides in regards to the legality of Rittenhouse possessing the firearm, the other charges could still stand.

“It’s important to point out that the claim does not defeat the self-defense issue, which a lot of people seem to think,” Grieve said. “The jury could find him guilty of possessing the firearm illegally, even if they find him not guilty of counts 1 through 5 of all the different issues of self-defense.”

In other words, “You could possess a firearm illegally, and still use it legally in self-defense. That may or may not exempt you from illegally having the firearm,” said Grieve.

That leads then, to the issue of self-defense.

Under Wisconsin State Statute, section 939.48 addresses “Self-defense and defense of others.” The exact text reads: “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.”

Cecelia Klingele, associate professor of law at University of Wisconsin Law School, breaks that down further.

“When you’re being unlawfully interfered with by another person, you have a right under the law to defend yourself against that unlawful interference,” Klingele said. “But we also require that when you do so, you’re using force reasonably. So you’re making a reasonable judgement about whether or not you’re in danger, how much danger you’re in, and how much force you need to use in order to protect yourself.”

While Klingele said there are “no absolute rules about any of the specific facts that might lead someone to defend his or her self,” making a reasonable judgement is an important component of self-defense.

“The defendant’s perspective is going to matter here when it comes to whether or not he was reasonably understanding himself to be in danger of death or great bodily harm, and reasonably believing that his only option was to resort to potentially lethal force and that there was no other way for him to escape or avoid that kind of situation,” Klingele said.

“Escape or avoid” may come into play when considering self-defense. According to the criminal complaint, law enforcement reviewed multiple videos from cell phones in investigating the incident.

The complaint identifies Rittenhouse, referred to as “the defendant,” holding a long gun in a video. The complaint references another video, where “Rosenbaum appears to continue to approach the defendant and gets in near proximity” before shots are heard. According to the complaint, “as the defendant is running away, he can be heard saying on the phone, ‘I just killed somebody.’”

In a detective interview with McGinnis referenced in the complaint, McGinnis said Rittenhouse “was not handling the weapon very well.” McGinnis told the detective people were moving towards Rittenhouse, and Rittenhouse “was trying to evade these individuals.” McGinnis also said Rosenbaum “was trying to get the defendant’s gun.”

According to the complaint, additional video shows Rittenhouse running on a road when people can be seen running behind him, some yelling at or about him. The complaint says a man swings at Rittenhouse, and ultimately Rittenhouse trips and falls.

That is when the complaint says video shows a man jumping at Rittenhouse, and it appears Rittenhouse fires two shots at that person, who runs away. The complaint says Huber then approaches Rittenhouse and hits him with his skateboard, and “Huber appears to be trying to pull the gun away from the defendant.” According to the complaint, Rittenhouse shoots Huber. Then, the complaint says Grosskreutz, who “appears to be holding a handgun,” approaches Rittenhouse, and Rittenhouse shoots him.

Grieve said he anticipates the defense will be arguing that Rittenhouse was trying to retreat, rather than initiate.

“This is what you’re going to be hearing from the defense side, you’re going to be hearing about the fact that when you try to chase someone down and take their firearm, that in itself may be characterized as a deadly attack, and if you’re facing a deadly threat, in many circumstances, you can use deadly force,” Grieve said.

Klingele said the law is designed to protect human life.

“Importantly, you don’t have to be right, you just have to be reasonable,” she said. “But we also don’t excuse unreasonable assessments of situations, because of course the law is designed to protect human life, and in protecting human life we don’t want people hurting each other unless there’s really no other way to ensure their own personal safety.”

There’s also the issue of provocation, and the question of whether or not walking the streets with an AR-15 style rifle - illegally, according to the state - is enough to provoke an attack.

“If a person engages in unlawful contact of a kind that is likely to provoke a person to attack him or her, then the rules of the game change a little bit. And in general, the person who provoked the attack has to be in much greater danger before he or she is allowed to use, especially lethal force against another person, and has an obligation to escape or retreat from the situation if at all possible before resorting to lethal force,” said Klingele. “That said, even if you’re the person who provokes an attack unlawfully, you still do have a right to defend yourself if you reasonably believe you’re in danger of death or great bodily harm and there’s no other way to protect yourself other than to resort to lethal force.”

There are also questions surrounding this case that state statutes may not explicitly address - the issue of race, and whether race had a role to play the night of Aug. 25. Just two days before Rittenhouse was accused of killing two people, Jacob Blake was shot by Kenosha police officer Rusten Sheskey. Both of these situations were caught on camera.

“I don’t think we can watch those both, those two videos, innocently anymore, we have to juxtapose them,” said Ralph Grunewald, assistant professor in the English department and in the Center for Law, Society & Justice at UW-Madison.

Grunewald said while there is no way to know exactly what happened in both situations from segments of video, comparisons, and contrasts can be drawn based on what can be seen.

“He allegedly was armed or had a knife, which we still don’t know yet, and he was walking to his car and before he could even enter his car, he was shot seven times in the back,” Grunewald said, referring to the video of Jacob Blake. “This is the one image we have. Days later, we see how a White male young man armed with an AR-15 assault rifle walks the streets of Kenosha.”

Grunewald said if race played a role in the Rittenhouse case, it would likely be on a structural and institutional level, where certain power inequalities are upheld.

“On the one hand it’s normal to see a White male illegally - he’s underage, he wasn’t allowed to carry a gun - carrying a gun, this is normal,” Grunewald said. “On the other hand, if a young Black man goes out to buy a bag of Skittles, then in that we see a threat.”

Grunewald is referring to the 2012 shooting of Trayvon Martin.

Grunewald said in watching these videos, it’s just as important to note what we don’t see as it is to note what we do see - what could have been different.

NBC15 will continue following this case as it moves forward.

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