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ZorbaTHut  2yr ago (text post)   35659 thread views

Culture War Roundup for the week of September 26, 2022

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Because 1) The exact roles of everyone involved was in dispute; and 2) the situation was chaotic in general; and 3) here is the instruction given to the jury on the issue of self defense by an initial aggressor:

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.

Notice that "starting the altercation" is not enough; the person must have been engaged in "unlawful conduct," and even if he does, if the other person uses what the initiator reasonably believes to a threat of imminent death or great bodily harm, all that means is that the initiator loses the right to "stand his ground."

Given all that, and given that the burden is on the government to prove,** beyond a reasonable doubt**, that the defendant was NOT acting in self-defense, the govt would have a hard time getting a conviction of anyone involved. Not impossible, certainly, but definitely an uphill battle, in this particular case. Again, I am not saying that they SHOULD be acquitted, but rather only that the probably WOULD be acquitted.

Wouldn't Rosenbaum's verbal threats, eg "if I catch any of you f**kers alone, I’ll f**king kill you," combined with his "starting the altercation" when he encountered Rittenhouse alone later in the night make it much easier in at least Rosenbaum's case? If not, that seems like a gaping hole in the law that desperately needs to be fixed.

Easier? Sure. But nevertheless, not easy. The point is that, as I noted, it is perfectly possible for both parties in an altercation to act legally in self-defense, because the jury (or, more likely, each jury, since there would probably either be separate trials or one trial with two juries) is asked to assess what happened from the point of view of each person. Who was objectively actually in danger is not the issue.

Everyone that Rittenhouse shot was chasing him. Maybe in Rosenbaum's case it could be argued that Rosenbaum had a reasonable belief that Rittenhouse was tactically retreating, but Rosenbaum still started the altercation and never attempted to break off.

For the others that were shot, Rittenhouse was running down the middle of a street, not toward any kind of cover, and with his gun aimed toward the ground. His pursuers had to run about a hundred yards to reach him and knock him down.

Easier? Sure. But nevertheless, not easy.

Keeping in mind that I'm not a lawyer, I'm rather confused by this assertion as I would naively expect 939.48(2) to be saying that Rosenbaum would pretty clearly have not been entitled to self-defense had he killed Rittenhouse in the encounter. I'm not sure if my confusion stems from not understanding the legalities or from a different understanding of the hypothetical (or something else), so I'll try to explain my reasoning.

My assumptions about the hypothetical are that Rosenbaum threatened Rittenhouse and his party with "if I catch any of you f**kers alone, I’ll f**king kill you," earlier in the night and this can be easily shown with witness testimony; that Rosenbaum initiated the encounter by assaulting Rittenhouse as shown in the video footage; that Rittenhouse fled, then turned and shot at Rosenbaum when cornered, again as shown in the video footage; and that Rosenbaum somehow killed Rittenhouse "in self-defense" immediately after. My expectation is that 939.48(2)(c) applies and should be easy to prove given the evidence for this chain of events. 939.48(2)(b) clearly doesn't apply since there was no disengagement. It's hard for me to see how 939.48(2)(a) would apply given Rosenbaum could have escaped at any time. What am I missing?

EDIT: Fixed formatting of quote.

Well, 939.48(2)(c) probably does not apply; that applies to those who have the intent to kill or cause great bodily injury and attempt to start a fight in order to contrive a self-defense claim. Example from a case I worked on: The guy in the car here, starting at 1:15, who was found guilty of murder despite firing in response to the other guy firing first, because after having words with the other guy in the store, instead of driving off he got his gun out and put it on the seat next to him, then said something (likely a gang challenge) to the other guy. It seems unlikely that that was Rosenbaum's plan, since he was unarmed. Plus, again, it would be on the govt to prove, beyond a reasonable doubt, that he had that intent.

There is also this common rule; the quote is from CA law but it is a pretty normal rule, so if it does not apply in WI , then WI is an outlier (and note that not all law in this area is statutory; some is common law - note that the linked CA jury instruction does not cite the Penal Code re escalation to deadly force, but rather case law:

However, if the [initial aggressor] used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend(himself/herself) with deadly force and was not required to try to stop fighting(,/ or) communicate the desire to stop to the opponent[, or give the opponent a chance to stop fighting].]

But, again, the point is not so much what would have happened, but that, given the complexities of self-defense law, the nature of the burden of proof, and the fact that the law looks only at the perspective of the defendant rather than at what was objectively true, it is hard to make a claim that the jury made any determination about objective truth at all.

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