Opinion | How a Vaguely Worded Wisconsin Law Could Let Rittenhouse Walk

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If Kyle Rittenhouse is acquitted, it’s going to shock a lot of people. But if you’ve been following the case closely, it will be less of a surprise. This trial — and particularly the judge’s instruction to the jury on the concept of “provocation” — has highlighted a key flaw in the way legislatures have written their laws to describe when a person may kill lawfully in self-defense.

In an era in which more and more Americans are carrying guns and invoking their right to self-defense, these flawed laws are going to continue to lead to controversial verdicts. But lawmakers have the ability to clarify them. Here’s how.

Most states, including Wisconsin, place a limit on the right to self-defense. Assistant District Attorney Thomas Binger explained this when he told the jury in his closing argument that Rittenhouse brought an AR-15-style rifle, loaded with 30 rounds of armor-piercing ammunition, to a volatile situation and provoked the violence that ensued. “You cannot hide behind self-defense if you provoked the incident,” Binger said. “If you created the danger, you forfeit the right to self-defense.”

In contrast, Mark Richards, one of Rittenhouse’s criminal defense attorneys, portrayed his client not as a provocateur but as a scared teenager just trying to defend himself against an angry mob. He reminded the jury that “[e]very person who was shot was attacking Kyle. One with a skateboard. One with his hands. One with his feet. One with a gun. Hands and feet can cause great bodily harm.”

The verdict in this case may come down to which of those two narratives makes the most sense to the jury—whether they consider Rittenhouse’s actions a provocation or an act of self-defense. The judge also zeroed in on this issue, providing the jury with an instruction on how to evaluate the question of provocation. That instruction, however, was far from clear, and the lack of clarity may work against the prosecution.

This type of instruction is commonly known as an “initial aggressor” instruction. It allows the jury to reject a defendant’s claim of self-defense if they find that the defendant provoked the conflict or was the initial aggressor. As a general matter, an initial aggressor loses the right to act in self-defense unless he first withdraws from the conflict or retreats and communicates his withdrawal to the other party.

While initial aggressor rules exist in some form in every state and the District of Columbia, they are an understudied limitation on the defense of self-defense. There is no uniform definition of “initial aggressor” and states vary in terms of what is required in order to qualify as an aggressor who loses the right to act in self-defense.

The judge in the Rittenhouse trial first instructed the jury that Rittenhouse had no “duty to retreat.” But then he read them Wisconsin’s standard jury instruction on provocation, which says:

You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack. However, if the attack which follows causes the person reasonably to believe that he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense. But the person may not use or threaten force intended or likely to cause death unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.

The judge giving the jury this provocation instruction at first seemed to be a win for the prosecution. However, Wisconsin’s provocation instruction, unlike the initial aggressor instructions in other states, doesn’t foreclose a provocateur from arguing self-defense.

This is where the confusion comes in.

The first problem is that while initially suggesting that a person who provokes an attack forfeits the right to argue self-defense, the instruction immediately follows by saying that a person may act lawfully in self-defense if the attack he provokes causes him to reasonably believe that he is in imminent danger of death or great bodily harm. In other words, if the provocation is really effective at provoking the other side, causing the provocateur to fear for his life, he can claim self-defense again. This effectively annuls the provocation exception to the law of self-defense.

The most Wisconsin’s provocation instruction does is impose a duty to retreat on one who provokes an attack. But that duty to retreat is conditioned on the defendant’s belief that he has exhausted every reasonable means to escape. The person “may not use or threaten force intended or likely to cause death unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.” And the way the general jury instructions on self-defense read, the jury is likely to think “reasonably believes” means that if the defendant thought his belief was reasonable, he reasonably believed.

A second problem with Wisconsin’s provocation instruction is that the limitation on self-defense comes into play only if the defendant engaged in “unlawful conduct of a type likely to provoke others to attack.” Lawful but provocative behavior is apparently within bounds.

Rittenhouse’s supporters could argue that merely bringing a firearm to a racial protest in a state where it is lawful to open carry is not “unlawful conduct of a type likely to provoke others to attack.” This is why it matters that a few days earlier, the judge dismissed a weapons charge against Rittenhouse. Before that ruling, the prosecution might have countered that Rittenhouse was engaged in unlawful conduct by being in possession of a rifle when he was 17 years old—Wisconsin law makes the possession of a dangerous weapon by a person under the age of 18 a misdemeanor offense — and that bringing an AR-15-style rifle to a tense racial justice protest was conduct likely to provoke others to attack. The judge also threw out a violation of curfew charge, which would also have made Rittenhouse’s conduct prior to the shootings unlawful.

Regardless of which way the jury comes out, this case reflects the need for legislators and judges to pay more attention to the initial aggressor limitation on the law of self-defense. Wisconsin’s law of self-defense and its jury instruction on provocation should more clearly indicate that an individual who provokes or instigates the conflict forfeits the right of self-defense. Additionally, an individual who shoots and kills another person should not have to commit “unlawful” provocative conduct to qualify as a provocateur or initial aggressor.

Instead, I propose that a person whose words or acts create a reasonable apprehension of imminent physical harm should qualify as an initial aggressor. If Wisconsin law was clearer on these issues, the jury’s deliberations in the Rittenhouse case might be much different. And perhaps more important, we could avoid more Rittenhouse-style cases in other states in the future.

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