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ZorbaTHut  2yr ago (text post)   35661 thread views

Culture War Roundup for the week of September 26, 2022

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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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