Across America we have expanded the law to permit the use of deadly and non-deadly force in self defense in far too many ways. We now are routinely confronted with situations where both parties have a lawful self-defense claim, since both parties were legally permitted to be there and to be armed, and both were reasonably afraid that the…
Across America we have expanded the law to permit the use of deadly and non-deadly force in self defense in far too many ways. We now are routinely confronted with situations where both parties have a lawful self-defense claim, since both parties were legally permitted to be there and to be armed, and both were reasonably afraid that the other would kill them, either can claim justification of the other. We have created a legal regime where you can choose to bring deadly force, to put yourself into a violent confrontation, and to kill someone, and still have the legal justification of self-defense.
One of the fundamental limits on self-defense as a legal justification to the use of deadly force is that the justification is not available to someone who provokes the confrontation. But because in many places we insist on allowing people to wander the streets with assault weapons, regardless of the social context, the definition and scope of “provocation” has become increasingly narrow.
It is clear that Rittenhouse provoked the violence not just by his armed presence, but also by his specific conduct. There is even evidence he intended to be a provocateur (evidence excluded at trial, arguably contrary to the law). Whether or not it was intentional, because his provocation was foreseeable, he bears moral culpability for the consequences of his actions. This is true even if the specific altercation was initiated by the decedent, and even where Rittenhouse reasonably feared he was in danger.
To translate his moral culpability into criminal culpability, we need a self-defense doctrine that can mitigate, rather than exonerate, people who intentionally put themselves in a situation where they know or should know they’re provoking violence, and then do in fact provoke it by their very presence. This revision would need to be complex and subtle, since there are infinite variations of these kinds of situations.
One aspect is to firm up the legal presumptions that apply where deadly force is intended or used in defense of property. It is not, in most cases, lawful to use deadly force in the defense of property (except under the castle doctrine, which covers the home). Even police are not authorized to use deadly force in defense of property. While it often occurs that criminal interference with a property interest rapidly escalates to where police fear a threat to life and are legally permitted to use deadly force, that represents a different justification than the property itself.
Therefore, it should as a matter of law be unreasonable to bring deadly force for the purpose of protecting property. By coming to Kenosha armed with a rifle with the professed intention to protect property, Rittenhouse had an unreasonable intention to use deadly force in an unlawful manner. That should form the basis of a draw back on the availability and force of the self-defense justification. A display of deadly force for the purpose of protecting property is a provocation to the use of deadly force. When the violence escalated perhaps he was justified in protecting his own life; but by bringing the gun for an improper purpose, he recklessly set the stage for its use without lawful justification or excuse. He should not have the benefit of full exoneration by self-defense. He should be held criminally accountable for his role in the unnecessary and tragic killing, even if in the very moment it occurred his decisions were understandable.
I regret that my analytical frame above bounces back and forth between law, justice and the facts of the case. It’s a bit muddled. What I am trying to get at is that the current contours of law are too permissive for deadly force, and also that the law of self-defense is too binary to capture the subtleties and varieties of human actions and the attendant moral culpability.
I think Rittenhouse’s moral culpability falls somewhere between first degree intentional homicide and reckless endangerment. I don’t know the facts well enough—neither do any of us, since media coverage and even law enforcement investigations rarely capture the true scope of the human incidents—so I can’t say where it falls in that range. But I feel confident he is not free of moral culpability.
But the permissive law for the use of deadly force, and the tragically binary outcome of it’s application in those facts, is likely to end with a dissonance between his moral and criminal culpability. He is not innocent, and should not be acquitted of those deaths. But if he was genuinely afraid for his life in that moment, he may not be morally guilty of murder either. And so the jury should have the opportunity to mitigate, rather than exonerate, based on the facts as they come out at trial.
*Correction: juries don’t “exonerate,” they acquit.
I am, of course, eliding the existence of “imperfect self defense” as a legal defense in some cases. Imperfect self-defense arises where a person believed they needed to use deadly force, but their belief was unreasonable or wrong. It typically arises in an intentional killing, where the defendant thought the victim was armed, but the victim was not.
I don’t recall whether Wisconsin has this defense, but typically it mitigates a some murders to manslaughter. Each State will have their own variants.
But the impairment on Rittenhouse’s moral self-defense claim in this case is not that he was wrong about the threat (though it appears he may have been). His moral self-defense claim is impaired by the fact that without a good justification he chose to provoke violence, and then when it was provoked he claims it as a justification to use deadly force.
So the extant “imperfect self-defense” claim is not a proper vehicle to allocate criminal culpability commensurate with his moral culpability based on any judgment that he provoked the violence by his presence. Something else is needed.
Across America we have expanded the law to permit the use of deadly and non-deadly force in self defense in far too many ways. We now are routinely confronted with situations where both parties have a lawful self-defense claim, since both parties were legally permitted to be there and to be armed, and both were reasonably afraid that the other would kill them, either can claim justification of the other. We have created a legal regime where you can choose to bring deadly force, to put yourself into a violent confrontation, and to kill someone, and still have the legal justification of self-defense.
One of the fundamental limits on self-defense as a legal justification to the use of deadly force is that the justification is not available to someone who provokes the confrontation. But because in many places we insist on allowing people to wander the streets with assault weapons, regardless of the social context, the definition and scope of “provocation” has become increasingly narrow.
It is clear that Rittenhouse provoked the violence not just by his armed presence, but also by his specific conduct. There is even evidence he intended to be a provocateur (evidence excluded at trial, arguably contrary to the law). Whether or not it was intentional, because his provocation was foreseeable, he bears moral culpability for the consequences of his actions. This is true even if the specific altercation was initiated by the decedent, and even where Rittenhouse reasonably feared he was in danger.
To translate his moral culpability into criminal culpability, we need a self-defense doctrine that can mitigate, rather than exonerate, people who intentionally put themselves in a situation where they know or should know they’re provoking violence, and then do in fact provoke it by their very presence. This revision would need to be complex and subtle, since there are infinite variations of these kinds of situations.
One aspect is to firm up the legal presumptions that apply where deadly force is intended or used in defense of property. It is not, in most cases, lawful to use deadly force in the defense of property (except under the castle doctrine, which covers the home). Even police are not authorized to use deadly force in defense of property. While it often occurs that criminal interference with a property interest rapidly escalates to where police fear a threat to life and are legally permitted to use deadly force, that represents a different justification than the property itself.
Therefore, it should as a matter of law be unreasonable to bring deadly force for the purpose of protecting property. By coming to Kenosha armed with a rifle with the professed intention to protect property, Rittenhouse had an unreasonable intention to use deadly force in an unlawful manner. That should form the basis of a draw back on the availability and force of the self-defense justification. A display of deadly force for the purpose of protecting property is a provocation to the use of deadly force. When the violence escalated perhaps he was justified in protecting his own life; but by bringing the gun for an improper purpose, he recklessly set the stage for its use without lawful justification or excuse. He should not have the benefit of full exoneration by self-defense. He should be held criminally accountable for his role in the unnecessary and tragic killing, even if in the very moment it occurred his decisions were understandable.
Well said! Thank you
I regret that my analytical frame above bounces back and forth between law, justice and the facts of the case. It’s a bit muddled. What I am trying to get at is that the current contours of law are too permissive for deadly force, and also that the law of self-defense is too binary to capture the subtleties and varieties of human actions and the attendant moral culpability.
I think Rittenhouse’s moral culpability falls somewhere between first degree intentional homicide and reckless endangerment. I don’t know the facts well enough—neither do any of us, since media coverage and even law enforcement investigations rarely capture the true scope of the human incidents—so I can’t say where it falls in that range. But I feel confident he is not free of moral culpability.
But the permissive law for the use of deadly force, and the tragically binary outcome of it’s application in those facts, is likely to end with a dissonance between his moral and criminal culpability. He is not innocent, and should not be acquitted of those deaths. But if he was genuinely afraid for his life in that moment, he may not be morally guilty of murder either. And so the jury should have the opportunity to mitigate, rather than exonerate, based on the facts as they come out at trial.
*Correction: juries don’t “exonerate,” they acquit.
I am, of course, eliding the existence of “imperfect self defense” as a legal defense in some cases. Imperfect self-defense arises where a person believed they needed to use deadly force, but their belief was unreasonable or wrong. It typically arises in an intentional killing, where the defendant thought the victim was armed, but the victim was not.
I don’t recall whether Wisconsin has this defense, but typically it mitigates a some murders to manslaughter. Each State will have their own variants.
But the impairment on Rittenhouse’s moral self-defense claim in this case is not that he was wrong about the threat (though it appears he may have been). His moral self-defense claim is impaired by the fact that without a good justification he chose to provoke violence, and then when it was provoked he claims it as a justification to use deadly force.
So the extant “imperfect self-defense” claim is not a proper vehicle to allocate criminal culpability commensurate with his moral culpability based on any judgment that he provoked the violence by his presence. Something else is needed.
Thanks!
Thank you Dylan. Quite well done and very likely more thoughtfully presented than anything the jury will hear.