On TV, politicians, celebrity lawyers and pundits bickered over the impulsive acts of a young man: Could this country afford to define itself as a place where any earnest, naive or troubled soul in any public place gets to decide in an instant to deploy fatal force against another — possibly without consequences?
But in America’s courts, law schools and state legislatures, a quieter yet still fitful struggle has waged over the past couple of decades, focused on the central dilemma raised anew by the Rittenhouse verdict: What does a right to self-defense really mean? When can Americans choose to use deadly force? Who gets to decide?
As often happens in the legal realm, these essentially moral questions can get lost in a Talmudic thicket of the criminal code.
“The problem here isn’t the law,” Billy Martin, a prominent D.C. defense attorney who formerly headed the homicide division of the U.S. attorney’s office in Washington, said Saturday. “It’s the state of mind right now, the acceptance in society of the ability to have weapons and use them to defend yourself. You’re seeing a more receptive attitude among jurors for people to arm and defend themselves if they reasonably believe their life is being threatened.”
One juror’s notion of what is reasonable might be very different from another’s, and those decisions can vary according to who a defendant is, said Christopher Zachar, a criminal defense lawyer and former assistant state public defender in Wisconsin.
“Had this been a defendant without the financial resources of Mr. Rittenhouse, or was a member of a marginalized population, was a person of color, I can easily see this case being perceived differently in terms of reasonableness,” Zachar said.
Whether the evolving law on self-defense is changing public attitudes, or public opinion is leading laws to become more friendly to the use of deadly force in self-defense may be a chicken-or-egg question.
But defense lawyers say it’s clear not only from the Rittenhouse case, but in trials in many states, that jurors are increasingly receptive toward the use of deadly force by ordinary citizens who claim they were protecting themselves.
“There’s little doubt that the political atmosphere, the Trump phenomenon and the strong emotions connected to it, is playing a substantial role in how juries look at cases like the Rittenhouse case,” said Barry Coburn, a veteran criminal defense attorney and former federal prosecutor in Washington. “One of the magical aspects of the jury system is the way jurors bring their life experience and attitudes into the jury room, and I think the Rittenhouse jury felt they had to strike a blow for his right to defend himself like that.”
Rittenhouse was acquitted Friday on all five charges stemming from the August 2020 shootings of Joseph Rosenbaum, 36, and Anthony Huber, 26, who were killed, and of Gaige Grosskreutz, then 26, who was injured.
To win their claim of self-defense, Rittenhouse’s lawyers had to convince jurors only that the teen had a reasonable fear that he might be killed or seriously injured, said Keith Findley, a law professor at the University of Wisconsin.
“They just have to submit enough evidence that that’s plausible,” he said.
Jurors, who deliberated for three and a half days, were told that under Wisconsin’s self-defense law, defendants may be justified in using force if they reasonably believed they faced “actual or imminent unlawful interference with their body.”
Under Wisconsin law, people who perceive a threat to their life don’t have a duty to run away. Such laws are designed to give armed citizens the flexibility to shoot first and ask questions — or be challenged on their decision in a courtroom — later.
Across the nation, there is no consensus: States are evenly divided over the core question of whether you have a duty to retreat from a confrontation in a public place that might endanger your life.
Jurors who end up determining what was reasonable behavior are instructed to stick to the letter of the law, but they are also told to use their life experience to judge what’s reasonable.
That often leads jurors, just like other Americans, to examine a shooter’s motives and character.
To Pat Buchanan, the former presidential candidate who envisioned an America in which righteous individuals pick up a pitchfork to further the populist cause, Rittenhouse was every bit the hero. “While Rittenhouse’s decision to go to Kenosha may have been unwise, it was also unselfish and, indeed, brave,” Buchanan wrote last week. “He was risking his life in a riot to defend another man’s property and do his civic duty in a situation of lawlessness.”
But to Josh Horwitz, executive director of the Educational Fund to Stop Gun Violence, the verdict was a sign that “extreme gun culture has rotted out our collective soul. Only in America can a 17-year-old grab an assault weapon . . . provoke a fight, kill two people and injure another and pay no consequences. Our fealty to firearms has managed to make sparing human life a sign of weakness.”
Protesters have also focused on the racial politics surrounding the Rittenhouse case. But to many on the right, this notion seems like a deflection, if not an outright deception. The shooter, his three victims, the trial lawyers and the judge were all White. What’s race got to do with it, many conservatives argue.
On the left, race seems an elemental force driving the case, on the theory that a Black shooter in identical circumstances would be unlikely to win the same forbearance and sympathy that the court and jurors afforded Rittenhouse. A system that promises equal justice for all seems to have different standards for different races, many liberals contend.
A study of FBI crime data found that over a six-year period, fatal shootings by White gunmen of Black victims were three times as likely to be ruled justifiable as shootings in which White gunmen killed a White person.
The Rittenhouse case hit a nerve in a frazzled nation’s ongoing debates about race, the justice system and gun rights, but it also came at a time when many states have been busy expanding protections for people who use firearms to defend themselves — a reaction to the country’s politics of anger, some legal analysts say.
“States are making it easier to use lethal force and have it be justified under the law,” said Eric Ruben, a law professor at Southern Methodist University’s Dedman School of Law who has written extensively on Second Amendment rights and the evolving law on self-defense.
In Rittenhouse’s case, Ruben said, “classic principles of self-defense may have justified his use of deadly force. But if this had happened in Florida, for example, there would have been a question whether it was even legal to prosecute Rittenhouse.”
That’s because Florida is among several states that grant immunity from prosecution for self-defense and have expanded the list of threats against which people are permitted to use deadly force. Most states allow citizens to use force to defend themselves against rape or other serious felonies, but now some Republican-controlled states are pushing to expand that right to other crimes, such as threats against property.
In Florida, for example, Gov. Ron DeSantis (R) proposed earlier this year to broaden the state’s “stand your ground” law to allow people to shoot looters or anyone whose “criminal mischief” threatens a business. The legislature did not approve the measure.
“America has tolerated violence more than other places throughout its history,” said Ruben, “but some of these recent changes are hard to find in the American legal tradition.”
Stand-your-ground laws, derided by opponents as “shoot first” laws, were promoted in the early 2000s by the National Rifle Association and the conservative American Legislative Exchange Council as a way to ease the legal burden on gun-carrying Americans who feel threatened in public settings.
But opponents of the laws cite research showing that in most cases where defendants claimed they were just standing their ground against a threat, they could have safely retreated. That conclusion led an American Bar Association report to recommend that states revert to laws that require people to avoid confrontation if they can do so safely.
As the right to carry firearms openly expands in many states, and as people bring guns into politically fraught confrontations such as the unrest that erupted in Kenosha after the police shooting of a Black man, Jacob Blake, who was wanted for alleged sexual assault, the prospect of more cases like Rittenhouse’s will blossom, said Findley, the law professor.
“When everybody’s armed, everybody can reasonably fear great death or great bodily harm when they get angry with each other,” he said. “It’s going to be hard to prove that people didn’t reasonably fear for their lives, right? We’re creating a powder keg with these laws.”
The recent expansions of self-defense rights stem in part from the 2008 U.S. Supreme Court ruling that self-defense is at the core of the Constitution’s Second Amendment. In District of Columbia v. Heller, the court referred 83 times to self-defense as the reason Americans are guaranteed the right to keep and bear arms.
This term, the court is considering a New York case that the justices could use to expand their interpretation of the Second Amendment from a right to defend one’s home to a right to self-defense in public places.
“If they rule that people have the right to carry firearms virtually everywhere, that will put pressure on lawmakers to define more specifically when self-defense is allowed,” Ruben said.
The Rittenhouse case also raised anew the question of who gets to decide when use of deadly force for self-defense is justified. Traditionally, American law has left that decision to a judge or jury, not to the shooter, Ruben said.
Increasingly, cases like Rittenhouse’s, asking whether a use of force was necessary or criminal, are exacerbating already fractious debates about personal responsibility, racial prejudice and the role of guns in society.
Rittenhouse himself has been portrayed as an immature, thrill-seeking menace and as a classic American hero.
Menace: “Rittenhouse intentionally travelled . . . to a fraught demonstration over the police shooting of Jacob Blake, a Black man,” David Atkins wrote in the liberal Washington Monthly. “He came armed with an AR-15 style rifle—one guaranteed to increase the likelihood of deadly violence.... It takes quite a leap to argue that he wasn’t there as an act of provocation to the protesters that night, if not in the hopes of shooting someone.”
Hero: “He is America,” Bruce Bawer wrote of Rittenhouse in the pro-Trump online journal American Greatness. “Or he’s what America — or at least Middle America — was, back in the days before David Letterman-like irony soiled everything, before morality was relativized away, before the movies began celebrating cop-killers like Bonnie and Clyde as folk heroes. Rittenhouse is corny America, apple-pies-cooling-on-window sills America, 4-H Club America. . . .”
In Atkins’s view, it should be illegal to carry an assault weapon in public, illegal for ordinary citizens to appoint themselves armed guardians of other people’s property, and perverse for the law to condone violent acts of self-defense in an era of rapid-firing, high-powered weaponry.
Bawer, in contrast, argues that “if teenaged Marines can be sent to restore order in Mogadishu, then a 17-year-old citizen, in a city whose people have pretty much been left by their governor to fend for themselves, has every right to try to keep the order in his own backyard.”
In the legal profession and beyond, the legacy of the Rittenhouse case will boil down to one more footnote in the nation’s voluminous casebook of violent confrontations:
One side will believe that if Rittenhouse hadn’t come to Kenosha armed with a deadly weapon and ready to defend himself, he might have been hurt or killed. The other side will believe that had he come armed with only a medic kit and no firearm, no one would have been hurt.
How those two perspectives find common ground is a question that has bedeviled the United States for more than two centuries, with no answer in sight.