Today, Explained - Kyle Rittenhouse and the “self-defense” defense

Episode Date: November 23, 2021

After the Chicago Tribune’s Stacy St. Clair runs through the Rittenhouse trial and verdict, legal scholar Eric Ruben explains how “self-defense” can apply to shooting unarmed people in public. Today’s show was produced by Hady Mawajdeh and Miles Bryan with help from Will Reid, edited by Matt Collette, engineered by Efim Shapiro, fact-checked by Laura Bullard and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. The Rittenhouse verdict dropped on Friday, which meant the country had an entire weekend to kick back and theorize on the significance of not guilty on all counts. And it turns out the significance depends not insignificantly on your politics. Black Lives Matter activists said they feared the verdict would scare off future protesters. Arizona State Senator Wendy Rogers called for Kyle Rittenhouse statues to

be built across the country. The Rittenhouse verdict is a Rorschach test on what you think these United States are all about. It clearly became a referendum on gun rights, how you felt about self-defense laws, how you felt about racial inequities in the justice system, and who has access to storytelling, and who has access to money for solid defense representation. Stacey Sinclair has been covering Rittenhouse since 2020 for the Chicago Tribune. Legal experts went in with the expectation that this was going to be a very solid self-defense case for Kyle Rittenhouse under Wisconsin law, which you only have to answer two questions in a

self-defense case in Wisconsin. One, did the defendant believe his life was in danger when he pulled the trigger? And two, was that belief reasonable? And you have to put yourself in the mindset of a 17-year-old who made the decision to pull the trigger. And legal experts thought that was going to be a pretty low bar for the defense to clear in this case. He's a chaos tourist. He was there to see what was going on, act important, be a big deal. And then the moment a little bit of that chaos comes back at him, he cowardly shoots him instead of fighting back. The prosecution relied heavily on videos, and it relied on witness testimony,

but the witnesses sort of cut both ways for them. The witness that probably tilted the scales more toward Rittenhouse for the jury was actually one of the men he shot, and that was Gage Grosskreutz. The state calls Gage Grosskreutz. Can you please raise your right hand? Just tell us what a testimony about the givenness matter

be the truth, the whole truth, and that's for the truth to help you God. You may be seated. Grosskreutz was volunteering as a peddler-medic. He didn't work for Kenosha or anything like that. But he had spent the summer going to social justice protests around Wisconsin and providing medic services. He also carried a gun when he went to these protests.

He testified that he was a big believer in the Second Amendment. And whenever he went to protests, he took keys, wallet, his gun, and phone. And he testified that he heard the shots. And I had heard a series of gunshots, what I determined to be a few blocks south of where I was. That turned out being Kyle Rittenhouse shooting Joseph Rosenbaum. And he starts running toward the gunfire, and he crosses paths, actually, with Kyle Rittenhouse shooting Joseph Rosenbaum. And he starts running toward the gunfire.

And he crosses paths, actually, with Kyle Rittenhouse. And this is on video. And he says to Rittenhouse, Hey, what are you doing? You shot somebody? Who shot? And he sees Rittenhouse continue to run down the road. And he said he had a fear that either Rittenhouse continue to run down the road. And he said he had a fear that either Rittenhouse

or somebody else running down the road was going to get hurt. So he started following Rittenhouse himself. Rittenhouse trips, falls to the ground. A man jumps over him. Rittenhouse shoots at him and misses. And then Gage Grosskreutz, the paramedic, takes a step forward with a cell phone in one hand and a gun in the other. And Grosskreutz acknowledged that he had the barrel pointed toward Rittenhouse in his general direction.

When you were standing three to five feet from him with your arms up in the air, he never fired, right? Correct. It wasn't until you pointed your gun at him, advanced on him with your gun, now your hands down, pointed at him, that he fired, right? Correct. The defense just kept hammering that home. And I think he gave the jury sort of things

to think about in their deliberations. So the prosecution sort of ended up doing the defense's job. What did the defense do? Well, the defense put on Kyle Rittenhouse, who I thought was an extremely well-prepared witness. That's right, run. We're going to just take a time for our break anyway. You can just relax for a minute, sir. He got very emotional early on in the testimony. And then we never saw that kind of emotion again.

You know, there's been a lot of debate, like, was that emotion real? Did he fake it? You know, I was there. I thought it was real, but I don't know who he was crying for, right? The prosecution will tell you he was crying for himself. He was crying for the situation that he found himself in. It is true that he started crying when he said, I was cornered by Joseph Rosenbaum. He didn't cry when he said, and I had to shoot Joseph Rosenbaum. Mr. Huber runs up. He, as I'm getting up, he strikes me in the neck with his skateboard a second time.

Then what happened? He grabs my gun and I can feel it pulling away from me. And I can feel the strap starting to come off my body. And what do you do then? I fire one shot. I thought that was actually a strong point for the prosecution in their closings to sort of don't buy Kyle Rittenhouse's tears. He wasn't crying because lives were lost. He was crying because, you know, he could be in trouble for it.

I don't think he saved his case. I don't think he heard his case. I just think it was sort of neutral. So witnesses for the prosecution and Kyle Rittenhouse's testimony itself did a lot to underscore the defense's narrative that these shootings were an act of self-defense. And then the other charge here related to the fact that Rittenhouse was apparently too young to even be carrying such a firearm at all, got thrown out by the judge. What happened there? So it's a misdemeanor charge in Wisconsin for carrying a gun underage. And I think most people thought that was what Kyle Rittenhouse would be convicted of because the charge was pretty clear. He was charged with having a loaded firearm under the age of 18. And when you read the Wisconsin statute,

it says that you can't have a deadly weapon if you're under the age of 18. You can't publicly, openly carry one. And it lists what deadly weapons are and firearms, loaded or unloaded, are on that list. But then if you get down later in the statute, it has like an exemption if you're 16 or younger and hunting and you've passed like the hunting safety course, or that you could carry just as long as the gun or the firearm is not a short barrel rifle. And it's a very confusing statute. It's one that, you know, prosecutors pointed out to the judge. Judge, there have been many discussions about this count. I'm not going to rehash everything.

The state disagrees with the interpretation the court has established... column, so to speak. And that, you know, is sort of the legal standard. But at the same time, the judge waited until just minutes before closing arguments to toss it. If he had tossed it before trial, if the judge had tossed it then, prosecutors could have taken it to a higher court that court could have you know made the decision once and for all but the timing of the decision was such that the prosecution had no recourse they just had a sort of roll with the punches and the judge made a comment at when he was tossing it there always was access to the court of appeals all along here. Well, I guess that's not fair for me to say because I was sitting on it. But so shame on me. And I know this judge took a lot of heat. And this is really the only time that I thought, wow, like that was something that

would be hard to legally justify, sort of laughing about the idea that you sat on it. I mean, the judge took a lot of heat. Did he put his finger on the scale? Or do you think he remained neutral throughout? Yeah, he took a ton of heat. I saw Saturday Night Live had like a impersonation of him, even Saturday during their cold opening. But that did not give my client an unfair advantage in any way.

You said my client. Do you mean the defendant? Oh, yeah, sure. Hey, keep doing that. I think a lot of his decisions, legal experts told me, were legally justifiable decisions. People who know him have described him as the kind of judge who gives the defense a lot of leeway to present their case. The problem is, right, we want defendants to have the chance to make their cases, but that's not how it's working every day in courtrooms across the country, right? The defendants aren't always getting the benefit of the doubt that Judge Schrader was given to Kyle Rittenhouse. And though Judge Schrader may give

that to all defendants, and by all the accounts I heard he does, I think it was still jarring for the public because we know that in courthouses across the country, there are defendants, particularly defendants of color, who aren't getting that wide berth to defend themselves. And they're also not having a defense team like the one that Kyle Rittenhouse has that was funded by donations largely raised in conservative circles. I think if you turned on the news this weekend, you could hear all sorts of people tell you what to think of this verdict. But how was it actually received locally in Kenosha?

You were there. This is against our Second Amendment right as an American. That's what this trial is about. But he wasn't defending himself. Mostly it was people just sort of jawing at each other and pointing at each other and saying, you know, frankly, horrible things to each other. But, you know, I spoke to Bishop Tavis Grant, director for Rainbow Push, and he was out there. And he said, you know, this is actually how the First Amendment is supposed to work, with people being able to, like, shout at each other and get angry at each other and then, you know, share from the same snack pool, which is what they did. They had Pop-Tarts and Gatorade and they would like they share.

They had a communal sort of buffet on the courthouse steps. And at one point, someone did bring a bunch of pizzas to share. And there was like a pizza party on the steps and, and people, they prayed together before eating. And, you know, at the end of the day, you'd be leaving the courthouse and I would see, you know, a gun, you know, someone holding a free Kyle sign and somebody holding, you know, a BLM sign and they'd be sharing a cigarette. And then they'd be like, see you tomorrow. And, you know, then I'd see him in the morning yelling at each other. And then there's the national reaction.

Nationally, you know, within minutes of the verdict, I already had gun rights groups in my inbox bragging about the verdict. I had anti-gun violence groups decrying the verdict. So, I mean, I think people are going to use this verdict to sort of promote their own causes. And, you know, they'll either use what they see as a victory to to raise more money and awareness or they'll see the verdict as a loss that needs to be a breather here, then we'll come back and talk about how our increasingly armed in public nation might increasingly shoot unarmed people and then claim self-defense. It's Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month.

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Please play responsibly. If you have any questions or concerns about your gambling or someone close to you please contact connex ontario at 1-866-531-2600 to speak to an advisor free of charge bet mgm operates pursuant to an operating agreement with i gaming ontario oh they always come in twos. Okay, we're back. So you got some people who look at the Rittenhouse verdict and see an abomination of justice. Others see a triumph.

But we wanted to know what people who study the law saw. So we reached out to Eric Rubin. He's a law professor at SMU in Dallas, Texas. So I think that this verdict is an example for many legal scholars and for many out there in the public of how self-defense interacts with the volatile combination of gun carrying and expanded gun rights, vigilantism, and civil unrest. And it raises questions about recent efforts in much of the country to make it easier to justify shooting deaths as lawful self-defense. What are the other cases where we've seen these kinds of self-defense arguments being used? Two other cases that come to mind for me are the trial of George Zimmerman after he killed Trayvon Martin and the ongoing trial of the three men who chased down and then killed Ahmaud Arbery. Well, let's talk about each of those, starting with Zimmerman. Can you remind us how self-defense factored into that trial? Zimmerman was operating as a neighborhood watchman,

and Trayvon Martin was walking through the neighborhood, and Zimmerman approached and went after Trayvon Martin was walking through the neighborhood and Zimmerman approached and went after Trayvon Martin. He's going to check me out. He's got something in his hands. I don't know what his deal is. Are you following him? Yeah. Okay, we don't need you to do that. And when a scuffle ensued, Zimmerman shot and killed Martin. And subsequently, he said that he was fearing for his life, and that's why he did it. He claimed self-defense. Members of the jury, have you reached a verdict? And it worked.

Yes. We, the jury, find George Zimmerman not guilty. Tell me what's going on in the Arbery case right now. How is self-defense being used in that trial? So the fact pattern in that trial is somewhat similar to the fact patterns that we see in Rittenhouse and also in the trial of Zimmerman. In the trial of the men who killed Arbery, three white men in Georgia chased down Arbery, who's a black man. He was out for a run. And they claimed that they thought he was a burglar who they wanted to arrest. Of course, they weren't police officers, so this would be a so-called citizen's arrest.

You could have just let him run, correct? I could have, but I also wanted to make sure that everything was okay down the road and see what was happening. I wanted to ask him, at least ask him what was happening. And when Arbery tried to run away, they cornered him and he ran at one of them who was holding a gun and that man shot him several times, killing him. He had my gun. He struck me.

It was obvious that he was attacking me, that if he would have got the shotgun from me, then it was a life or death situation. And I'm going to have to stop him from doing this. So I shot. And all three of those men are on trial. And as in the other cases, the Zimmerman trial and the Rittenhouse trial, they claimed that the killing was lawful self-defense. And in all three cases, you've got the people claiming self-defense having firearms and at least some of the people they shot being unarmed. That's right. It's important when you consider these cases of self-proclaimed protectors of the peace to take stock of the fact that they did this policing carrying guns. And that raises

another interesting thing that ties all these cases together. In the Rittenhouse and the ongoing Georgia prosecution, part of why the defendants say lethal force was necessary was that they were afraid of their own guns being taken from them. So there's some circular logic here. In both Rittenhouse and the case arriving out of Arbery's killing, men show up with guns to supposedly maintain law and order. And when a predictable confrontation ensues, they worry that their own guns will be used against them. And so they shoot. So their vigilantism and their decision to do it with guns becomes intertwined with, and arguably even gives rise to, their claim of self-defense.

And for Rittenhouse, at least, it worked during his trial. How is the self-defense defense supposed to work? Is there some sort of clear legal parameter here? Well, self-defense law traditionally has operated to steer conflicts away from unnecessary lethal violence. And the way that it does that is by requiring both necessity and proportionality. The necessity inquiry asks whether it was necessary to use force to stop a threat. The proportionality inquiry asks whether the force that was used was proportionate to whatever the perceived threat was. And those two concepts are viewed through a lens of reasonableness. So did the defendant reasonably believe that his defensive force

was necessary and proportionate? And the way that those two concepts of necessity and proportionality operate to steer conflicts away from lethal outcomes, or at least are supposed to operate that way, is by establishing that deadly defensive force is only proportional to a threat of death or serious bodily injury. In other words, you can't use lethal force if you just think someone's going to poke you with a feather. This limitation is intuitive and historically was rationalized by an interest in preserving life. But many jurisdictions are adjusting their law in other ways that make it easier to justify the use of deadly force, such as by passing

stand-your-ground laws that have been in the news frequently over the past decade or so. I mean, these self-defense laws seem like they apply most soundly to situations where you're trying to protect your home or your property. But a lot of these cases are taking place in public. Do we have a clear set of parameters about how self-defense laws or stand-your-ground laws work when you're not on your property,

when you're in the middle of a city like Kenosha? Sure. Well, under English law, and this is the law that we inherited in the United States, if you kill someone in public and you raise the defense of self-defense, your self-defense claim fails if you reasonably could have safely retreated to avoid whatever the danger was. And that's still the law in various states that maintain that common law tradition. So in other words, traditionally, the law of self-defense scrutinizes lethal defensive violence more closely in public places.

But in many places across the country, either through a court decision or more recently through stand-your-ground laws, the law shifted so that defendants don't have to retreat if they're lawfully wherever they are and they did not unlawfully provoke the conflict. So these stand-your-ground laws broaden the range of circumstances when it's permissible to kill another person in public and receive theguns in public for self-defense and for the protection of the community. And this is something that is actually getting litigated at the Supreme Court right now. So that case, the case that's pending before the Supreme Court right now, is called New York State Rifle and Pistol Association versus Bruin. Mr. Clement. Mr. Chief Justice, and may it please the court, the text of the Second Amendment enshrines a right not just to keep arms, but to bear them. And it was just argued, actually, a couple weeks ago. It involves a Second Amendment challenge to New York's strict permitting law for the public carry of concealed handguns.

In New York, for over a century now, in order to get a permit to carry a concealed handguns. In New York, for over a century now, in order to get a permit to carry a concealed handgun in public, you need to show heightened need for self-defense, something that separates your security needs from the general public. And certainly, wanting to carry a handgun to police fellow citizens, like what we saw in Kenosha, would not count. About 80 million Americans live in places that have a similar law to New York. And in these places right now, it's fairly difficult to get a permit to carry a concealed handgun in public.

But during oral arguments, it seemed that the conservative justices, and right now the conservative justices make up a majority of the Supreme Court, viewed the constitutionality of the New York law with skepticism. There are a lot of armed people on the streets of New York and in the subways late at night right now, aren't there? I don't know that there are a lot of armed people. No? How many people with illegal guns?

Yeah, that's what I'm talking about. And if it turns out that they strike it down, that would mean that it would be much easier to lawfully carry a handgun in New York and other states with similar policies. And you might expect to see the dynamics of somebody carrying a handgun and fearful that the handgun will be taken from them and turned against them. You might expect to see that circumstance happen more frequently. And where do you think it leaves us? Should we just expect to see more cases like the Kyle Rittenhouse case or even the Ahmaud Arbery case as more people are

armed and carrying weapons in public becomes even more normalized in the United States? Well, one thing I wouldn't be surprised to say is that if the trend continues, that more and more people are carrying guns in public, and if the Supreme Court strikes down New York's law and makes it easier to carry a handgun in public, I think that that's going to put pressure on policymakers to take a really close look at the law of self-defense and to see whether or not the law of self-defense is calibrated for that environment. And if not, to see what sorts of changes to the law of self-defense might be made that could make it clear to the public when self-defense is permissible and maybe make it harder to succeed with a claim of self-defense. It feels increasingly like we are being encouraged in this country

to be afraid of the other, whether we should be packing heat because we're scared that some guy might open fire in public or because we're leery of protesters and we think they're all looters who are going to light our businesses on fire, or we're unarmed people

who don't want to own guns, who are afraid that when we go out and ask someone to turn down their music or accidentally cut someone off on the highway, they're going to come and shoot us. Do you get that sense? I do. I think that fear plays into this on all sides. There's data out there that shows that when gun carriers carry their guns, they feel safer by doing it. And this might not actually bear any relationship to reality. So, for instance, fewer than 1% of self-defense confrontations

actually involve a firearm. And the vast majority of defensive confrontations involve no weapon whatsoever. But there still is this fear that is driving the carrying of firearms in public. And on the other side is driving the desire to restrict firearms from the public square. Fear is definitely a central component in the ongoing dialogue about guns in America.

Eric Rubin, he's a fellow at the Brennan Center for Justice at NYU Law, as well as an assistant professor of law at SMU Dedman School of Law out in Dallas, Texas. Earlier in the show, you heard from Stacey St. Clair. She's a reporter at the Chicago Tribune. Our show today was produced by Hadi Mawagdi and Miles Bryan, with help from Will Reed. It was edited by Matthew Collette, fact-checked by Laura Bullard, and engineered by Afim Shapiro. I'm Sean Ramos for him. It is Today Explained. Thank you.