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Kyle Rittenhouse and the Legal/Moral Limits of Self-Defense

photograph of protesters carrying automatic rifles

On August 25th, Kyle Rittenhouse carried a firearm into the protests in Kenosha, WI. He killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and seriously injured Gaige Grosskreutz, 26.

Rittenhouse is being charged with one count of first-degree intentional homicide; one count of first-degree reckless homicide; one count of attempted first-degree intentional homicide; and two counts of first-degree reckless endangerment. The Kenosha police chief called the shootings a senseless act of violence on protesters: “We’ve had two people lose their lives senselessly while peacefully protesting,” Chief Miskinis said.

His lawyers, on the other hand, claim that he was “protecting his community,” acting in self-defense: “before Rittenhouse fired his gun, he was ‘accosted,’ ‘verbally threatened and taunted’ by ‘rioters’ while he guarded a mechanic’s shop alongside a group of armed men.” By claiming that Rittenhouse was acting in self-defense the legal team invokes one of the most intuitive exceptions to the prohibition on inflicting harm on another person. But, there are limits, both morally and legally.

Morally speaking, the views on the appropriate use of self-defense are more varied than the range permitted by law. This is of necessity – to allow broad ranges of interpretation in matters that include inflicting harm on one another isn’t conducive to a well-functioning legal system. In ethical theories, the question of self-defense involves slightly different questions than in the realm of law. Legally, you have some right to defend your person — though the conditions differ by jurisdiction — and this presumption already diverges from one moral position: pacifists. Pacifists defend the position that harming another person is never justified. There are pacifists that emphasize that this lack of justification arises because of the alternatives to harm that are ever-present, and this concern does show up in many self-defense statutes. If someone can avoid using force in order to defend themselves, then this can undermine the justification for the use of force (though in WI, there isn’t a “duty to retreat” as there is in other states).

Other pacifists emphasize that the same principle that makes it inappropriate for your assailant to harm you also holds in the case of your harming them. And it gets more complicated because most theorists agree that not all cases of harming someone in order to avoid them harming you are justified. There are limits to when defensive force is permissible even for non-pacifists. Self-defense doesn’t always work as a defense, so to speak.

Imagine if I put myself in the position where I needed to defend myself in the first place. In such circumstances, the role of the “attacker” becomes more murky, and the sense in which I need to defend myself becomes harder to explain. This complicates matters for a number of ethicists. In such a case, if some action of mine could de-escalate the situation or prevent the threat to my safety, then I am not justified in using force to defend myself. Underlying these cases is the idea that we can avoid circumstances where inflicting harm, or at the very least inflicting lethal harm, on assailants. If generalizable, this would undermine the force of the self-defense arguments.

For example: Imagine that I am robbing a house with a firearm, and the homeowner pulls a gun on me, shouting “Make another move and I’ll shoot!” I believe the homeowner to be a little trigger-happy and fear for my life. I shoot the homeowner out of this fear, and thus in self-defense. Was I acting permissibly in shooting the homeowner? According to moral theorists, self-defense doesn’t clearly apply here because the home’s defenders were responding to my use of force. The important feature, arguably, is that I could avoid defending myself by ceasing my aggressive, law-breaking conduct that initiated the exchange. When I threatened the homeowner with lethal force, she was using appropriate force in response. Morally speaking, if I stepped down and ceased posing a threat, the homeowner loses her moral justification for threatening harm to me.

Here the law and these moral theories arrive at similar conclusions (with the Castle Doctrine complicating matters), but with important differences. Legally speaking, breaking a law at the time of defending your safety undermines a claim to self-defense, but not entirely. However, it isn’t purely the lawbreaking that changes the morality of the situation for all ethicists. In this idealized scenario, the threat to my life exists because of my threat to the homeowner. If I stop my threat, I do not need to harm anyone in self-defense.

According to Wisconsin’s self-defense law, people are permitted to “use force which is intended or likely to cause death or great bodily harm (if they) reasonably believe that such force is necessary to prevent imminent death or great bodily harm to (themselves).” The key here is what the defendant reasonably believes. If the defendant’s lawyers can establish that he had a reasonable belief that he needed to use the force he did to prevent imminent death, his self-defense claim may stand. In Wisconsin, there isn’t a duty to retreat before using force. As such, a great deal rests on whether the jury judges that Rittenhouse had a reasonable belief that his use of lethal force was necessary to preserve his life. The jury’s judgment will depend on a variety of interpretative aspects, as none of the defendant’s victims seem to, in fact, be directing lethal force at him according to witnesses and video, and only one was armed at all. But there is often a distance between what is true and what someone reasonably believes is true.

Eric Zorn, news and politics correspondent for the Chicago Tribune, highlights elements of the scenario from both the legal and moral discussion above: “Did the teen willingly put himself in that fraught milieu and illegally, allegedly, risk a horrific escalation of that danger by carrying a gun on the scene? Yes.” Rittenhouse chose to put himself into a potentially lethal situation. In fact, that the situation was dangerous is his reason for being there. For some theorists, this makes a difference in how morally justified he is in using force against his assailants. He could have avoided the risk to his safety and avoided inflicting harm, similar to the armed burglar example.

Zorn also notes: “What about the context, though? The confrontational, high-adrenaline interactions that led up to the tragic deaths. The night air punctuated by gunshots. Danger all around.” From a legal perspective, and also according to some moral theorists, the relevant context is more narrow in scope. It is the setting in which Rittenhouse killed two people and injured another. Did he reasonably feel his life was threatened then? And was lethal force his reasonable route of defense?

Rittenhouse’s lawyers say yes: “In fear for his life and concerned the crowd would either continue to shoot at him or even use his own weapon against him,” the lawyer’s statement says, “Kyle had no choice but to fire multiple rounds towards his immediate attackers.”

But there are further moral and legal issues that the Rittenhouse case represents.

Aside from the question of whether there was a reasonable belief in a lethal threat to his life, Rittenhouse faces further legal scrutiny in his carrying of a firearm illegally. Further, his behavior exists in a context of a culture that is praising violent responses to protests of police violence, and in this case, inciting violence in response to them.

Rittenhouse allegedly did a lot of illegal things. The 17-year-old reports being motivated by a call to protect people and businesses in Kenosha, and arrived with a gun at an auto mechanic’s on August 25th. His lawyers claim that the 17-year-old’s “intent was not to incite violence, but simply to deter property damage and use his training to provide first aid to injured community members.” The lawyers also report: “Rittenhouse and others stood guard at a mechanic’s shop near the car depot, even after the curfew was in effect.” Unfortunately, Rittenhouse’s chosen method of “deterring property damage” was standing guard with an assault-style rifle he was not legally permitted to possess in Wisconsin, or conceal carry in his home state of Illinois.

Rittenhouse is facing misdemeanor charges for his illegal engagement with the assault-style rifle. Meanwhile, the calls for armed response against the protests in Kenosha have come under scrutiny. Facebook chief executive Mark Zuckerberg said the “Armed Citizens to Protect our Lives and Property” event, hosted by the Kenosha Guard on Tuesday night encouraging armed people to go to Kenosha, was in violation of policies and should have been removed. The direct calls for armed citizens to go to Kenosha were seen as inciting violence, and thus inappropriate on social media. We see their impact in Rittenhouse’s behavior, and the deaths that the calls result in.

In response to these protests, besides directing violence to the protestors themselves, there has been an outpouring of praise towards the people committing the acts of violence. For example, Rep. Thomas Massie (R-Ky.) praised Rittenhouse’s “incredible restraint” at not emptying his magazine into the crowd. And though he also admitted to not being as aware of the circumstance of the murder of Jacob Blake as the case against Rittenhouse, despite claiming: “As a 17-year-old, he was legally entitled to have that firearm in his possession. This is 100% self-defense.” Likewise, DeAnna Lorraine, a Republican congressional candidate, tweeted: “We need more young people like Kyle Rittenhouse and less like Greta Thunberg.” And even President Trump praised Rittenhouse in a tweet: “The only way you will stop the violence in the high crime Democrat run cities is through strength!”

While praise and comparisons to heroes might not rise to the level of incitement — it does not directly encourage another person to commit a crime — it is still dangerous. So, on the other side of the incitement that drove Rittenhouse, there is the encouragement and positive reinforcement that leads to think pieces about an oncoming Civil War.

When the praise heaped onto a vigilante who acted in response to incitement comes from so many sources, the positive reinforcement becomes dangerous in itself. It doesn’t constitute incitement, but continues to divide cultural battle lines where institutional systems that promote violence are paired individual citizens suppressing voices protesting those systems. This encouragement, the incitement, and the people who act on it are a unified voice against change and institutional reform.

This praise is not for someone acting in self-defense. It is for acts of aggression against people rising up against violence and murder. The mixed messaging regarding the case of Kyle Rittenhouse may complicate the case for self-defense. Is he a brave patriot, fighting on the side of law, justice, and the American way, or a scared innocent simply trying to protect himself?

The Vigilante “True Man” Is Not a Good Man

photograph of crime scene tape with police car in background

To be a vigilante is to take upon yourself at least the role of a police officer, assuming that your goal is simply to enforce existing laws. Vigilantism can, and often does, go further, effectively assuming both legislative and judicial power as well. If a vigilante or “vigilance committee” detains people for violating laws that don’t exist, but which they believe should exist, or enacts any form of pseudo-punishment on people for either existing or imaginary laws, then they further effectively usurp legislative and judicial power respectively. Vigilantism is undesirable in the extreme, and statutes or rules that encourage it a likewise undesirable. Generally, police power should be kept out of citizens’ hands.

The dangers of laws that facilitate and encourage vigilantism can be seen clearly in the cases of both Ahmaud Arbery and Trayvon Martin. Both were killed while doing nothing wrong because they were suspected of wrongdoing by overzealous citizens who took matters into their own hands. On top of the laws themselves, racially-based inequality in the execution and adjudication of the laws further emboldens vigilantes to pursue their own “justice” against Black Americans and other vulnerable populations. 

George Zimmerman was tried for killing Trayvon Martin, but was acquitted of the charges of second-degree murder and manslaughter. The DoJ stated that Zimmerman’s actions did not rise to the level of a hate crime as defined by federal statute. Gregory McMichael, Travis McMichael, and William Bryan were all arrested on charges of felony, murder, and false imprisonment pursuant to the killing of Ahmaud Arbery. However, these arrests did not occur until more than two months after the incident. Arbery was killed on February 23, 2020 and the McMichaels weren’t arrested until May 7, 2020. William Bryan was arrested on May 21, 2020. The men charged for Arbery’s death will likely use the same affirmative defense that Zimmerman did. That is they will admit that they committed the action of killing, but assert that the action was legally excused or justified because they were defending themselves from bodily injury and death. 

Laws and rules allowing people to claim self-defense against charges of homicide are desirable. A person may not have the time or opportunity to depend on police or fellow citizens to help them. Reasonable self-defense laws allow a person to prevent death or serious bodily harm to themselves or others due to the wrongful actions of another person by use of necessary and proportional force. For example, if a person forcibly enters a home and corners you and an acquaintance in a room, both of you should be immune to both civil and criminal liability for any harm inflicted upon the assailant necessary to prevent them from harming you, necessary to cause them to flee, or necessary to subdue them until police arrive. 

The right for a person to defend their life and property, sometimes with deadly force, is deeply engrained in U.S. society. However, the free rein given to use of legal force differs from one state to another. For altercations in public spaces, as in the killings of Trayvon Martin and Ahmaud Arbery, the operative question is whether there exists a duty to retreat. If a state, either by statute or case law, imposes a duty to retreat on people, that means that they cannot claim self-defense against charges of homicide unless they were not plausibly able to flee from their assailant. Every state recognizes some form of exception to the duty to retreat when a person is in their own home or property—the so-called “Castle doctrine.” If a state does not impose a duty to retreat from altercations in public spaces, then it has some form of “Stand Your Ground” law or rule. 

Both the Castle doctrine and Stand Your Ground laws emanate from another doctrine, the so-called “true man” doctrine. This is meant to serve as a principled reason in favor of rule concerning self-defense. The idea is that a person who is doing nothing wrong, who is acting wholly within their rights, should not be obliged to give any ground to someone engaged in wrongdoing. Florida has a Stand Your Ground statute under which George Zimmerman was able to assert that he was defending himself from the aggression of Martin, even if that aggression was caused by Zimmerman’s nighttime pursuit of Martin. It is also likely that the killers of Ahmaud Arbery will also claim self-defense as Georgia also has a Stand Your Ground statute

The idea that a morally faultless person shouldn’t, or at least shouldn’t be required to flee is not obvious. This smacks of a sort of recklessness that is expressly disavowed by at least one central moral theory, namely Aristotelean virtue ethics. One of the central tenets of this ethical system is the doctrine of the mean, which states that every virtue—that is, every morally positive character trait—lies at a midpoint between two extremes, which are vices. On one side there is an extreme of deficiency—of doing too little. On the other side there is an extreme of excess—of doing too much. Courage is one of the central virtues that Aristotle discusses, and it is, like any other virtue, in between two extremes. Cowardice is the vice of deficiency and recklessness is the vice of excess between which lies the virtue of courage. However, the true man doctrine appears to endorse recklessness. Whereas Aristotle’s ethical sage will fear and flee from some dangers, the true man of common law will not.  

Both the Ahmaud Arbery and Trayvon Martin killings also involved citizens engaged in attempts to detain people they suspected of criminal activity. Comments from Georgia District Attorney George Barnhill suggested that Gregory and Travis McMichael were acting within their rights under Georgia’s laws concerning citizen’s arrest. However, the need for citizen’s arrest originally stemmed from the lack of professional police forces—a need that has long since disappeared. Moreover, as the standards of evidence for criminal conviction have become more complex and the protections for people being placed under arrest have become more extensive, the plausibility of a citizen making a legitimate arrest has become more ludicrous. As a matter of bare law, most state statutes require that an arresting citizen have direct or immediate knowledge that the person they are arresting has committed a crime. Whether a given arrest meets such a standard is a legal question most citizens are not equipped to determine. 

Just Stand Your Ground laws abet and endorse a kind of physical recklessness, as do citizen’s arrest laws that abet and endorse a kind of epistemic recklessness. Even the sporadic acts of vigilantism they spawn swamp any civic value they might create. People’s right to defend themselves, their property, and others can be upheld by better means.