When Everything Is “Self-Defense” - And everyone gets a gun.
The jury in the Kyle Rittenhouse trial has begun its deliberations. As we wait, it is worth acknowledging that this trial has come to stand for what may well be the future of criminal defense law in America. Put aside the tactical errors of the prosecutors and the trial antics of a flamboyant judge and even the radicalization of the vigilante right—what is left is a snapshot of what will happen every time jurors contemplate how guns, protests, and hair-trigger self-defense combine in public spaces. And it looks very much like passing judgment over a shootout at the O.K. Corral.
Each of the three trials dominating the news this month features armed citizens taking up weapons to travel to public spaces where they believed themselves to be under threat. As the New York Times’ Shaila Dewan traced this past weekend, in the trial of the three killers of Ahmaud Arbery in Georgia and the Rittenhouse trial in Wisconsin, the defendants claim that they were justified in their use of violence when they killed unarmed people in self-defense. In both prosecutions, she writes, “the defendants claim they were entitled to start shooting because the victims were trying to take their guns.” White supremacists currently facing a civil trial in Charlottesville, Virginia, for harming others at a Nazi-style rally in 2017 are offering similar defenses, claiming that they too armed themselves and attacked peaceful counterprotesters out of a fear for their own safety. Dewan quotes Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that “the problem is that with a citizenry armed with guns, we have blurred every line.”
Indeed, once everyone in public spaces is armed and operating under a sprawling regime of “stand your ground” and citizen’s arrest statutes plus a mushrooming mistrust of law enforcement, how will courts ever sort out who instigated and who responded? As Ferzan put it in her law review article: “What is defense? What is reasonable? When may one stand one’s ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?” If you can arm yourself because you have declared yourself a substitute for law enforcement and then you claim people were grabbing for your weapon so you killed them with it, are you always justified? Must we always assume that the dead victim, who cannot testify, was the aggressor?
Some of the key testimony from the Rittenhouse trial to bear in mind, which helps paint the picture of just how armed everyone was and how those facts complicate things for the trial:
• Officer Pep Moretti of the Kenosha Police Department testified that he didn’t arrest Rittenhouse after he shot three people and approached Moretti with his hands up because he didn’t interpret Rittenhouse’s actions as a surrender. Why? Because so many people in the crowd were carrying guns and weapons—“there was probably more people armed with weapons than not throughout the entire course of the civil unrest”—that it was not unusual for someone to approach officers with their hands raised. “So seeing someone with an AR-15 wouldn’t necessarily mean much to you at that point?” asked James Kraus, a prosecutor. “At that point in time that night, no,” Moretti said.
• John Black, the defense’s use-of-force expert, testified last week that Rittenhouse shot all three men within 1 minute and 20 seconds.
• Gaige Grosskreutz, the one surviving victim of the shooting, testified that he was carrying a loaded Glock pistol, and that he had approached Rittenhouse from several feet away, pointing his gun. By that point he perceived Rittenhouse as an active shooter, as he had already shot two other people.
• Rittenhouse was carrying body armor in the trunk of his car—claiming that it had been “issued” to him by the local police department as part of a cadet mentorship program. (The Chicago Tribune fact-checked this claim and reported it as untrue.)
• Prosecutors showed video of Rittenhouse running toward the police after shooting Joseph Rosenbaum, as a bystander shouted, “Why you shoot him?” The prosecutor reminded Rittenhouse that his response at the time, as captured by the video, was “he had a gun.” When questioned about this (neither man that Rittenhouse killed had a gun), Rittenhouse said: “At the time, I was a little dazed.” He added that he was thinking of another protester with a gun, who had fired his pistol into the air as a warning seconds before. Prosecutors then asked: “So you shot Mr. Rosenbaum because Mr. Ziminski had a pistol?”
What happens in situations like the one described above is that a jury tasked with figuring out what happened is almost guaranteed to conclude that since everyone seemed to be armed, everyone was reasonably in fear for their life. Everyone with a gun could also reasonably be said to fear that his own weapon could be used to kill him, as Rittenhouse himself testified at trial about his AR-style weapon. As philosopher Renee Jorgensen told the New York Times of these competing claims in the Rittenhouse trial that everyone shot to defend their own lives, “The way that I would treat that case is that neither wrongs the other, and neither is wronged by the other—a kind of a Wild West situation where it’s not unlike armed combatants in war.” This transcends the question of whether Rittenhouse can claim self-defense with respect to each of the three shootings individually. It instead raises the question of whether more guns will always mean more self-defense and less culpability.
All of this is terrific news if one thinks every public gathering, indeed every public space, is enhanced by the presence of more guns. As the majority of the Supreme Court seems to have confirmed in this month’s oral arguments for New York State Rifle & Pistol Association v. Bruen, such a world is A-OK by them. Justice Samuel Alito, for example, demonstrated his boundless concern for, as he put it, “law-abiding citizens” in New York City who are forced to “commute home by subway, maybe by bus,” and are unable to carry guns to protect themselves in a shootout, which would presumably occur on a crowded train or platform. Yes, this is the world the current court seems likely to create, and it will leave the details of who intended to kill and who was just defending himself and who merely killed someone out of fear his gun would be wrested from him to any number of future juries. (In case you were looking for predictions, I’m betting the data will hold and that white people will claim self-defense and their Black victims will be dead and thus unable to testify.)
This possible future is one of the reasons we should pay particular attention to the Rittenhouse trial and consider it a preview for things to come. Just as the Charlottesville Nazis have attempted to blame their own acts of violence on police failures, so too is the gravamen of the Rittenhouse defense becoming that if the police had better managed the crowds at the Jacob Blake protests, nobody would have been shot. But in a world in which everyone is carrying a weapon, it becomes increasingly impossible for the police to sort aggressors from self-defenders. Indeed, as vigilantism becomes the norm, policing becomes ever more difficult. When police have mere seconds to determine, in the dark, in a crowd, who the active shooter is and who’s the good guy with a gun, they may decide that everyone is the latter: precisely what they thought of Kyle Rittenhouse, and precisely what his jurors may affirm.
Meanwhile, it should not escape us that at oral arguments in the 2008 Heller case, the court’s “bad guys” were home intruders. But listening to argument in Bruen this fall, the implication was that the bad guys more than 10 years later are state licensing agents, the ones who, according to Alito, grant gun licenses to “celebrities and state judges and retired police officers,” but not to “the kind of ordinary people who have a real felt need to carry a gun to protect themselves.” In other words, the bad guys now are the state, as it attempts to determine who needs a gun and who doesn’t. Only by allowing equal and unfettered access to weapons of war can we all be free to protect ourselves. If the plan after Bruen is to level the playing field—or, better, killing field—such that everyone can assert a right to defend themselves in public with lethal force, the presence and actions of police aren’t just immaterial; they are a part of the problem. The cops won’t have much to do except keep getting in the way of all the self-defending.
It is worth it to remember here that Florida’s first-in-the-nation “stand your ground” law, passed in 2005, didn’t explicitly lead to George Zimmerman’s acquittal after he killed an unarmed teenager, Trayvon Martin, in 2012. Zimmerman didn’t invoke it. But as Ta-Nehisi Coates wrote at the time, the law was in the ether; it was intended partly to stop police from harassing lawful gun owners going about their business in public, and at least one juror understood herself to be bound by “stand your ground.” Twenty-seven states have now passed similar laws. We have moved from castle doctrine protections that allow you to defend yourself in your home to laws that allow you to shoot in self-defense anywhere you feel unsafe. Once we are there—or, rather, here—your gun both protects and endangers you, because you need lethal force to protect against those who would use your own lethal force against you. The “good guy with a gun” can reasonably assume everyone else is bad, or at least could be trying to kill them. The analytical circle is complete, and that circle is closing in on us all.
This week, jurors in Wisconsin will be tasked with applying Wisconsin’s self-defense law to Rittenhouse. That law allows the use of deadly force if a defendant “reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.” As Barbara McQuade has argued, partly because of a quirk of Wisconsin law, “in this case, Rittenhouse can argue that even if he provoked others to attack him by openly carrying his semi-automatic rifle at a mob scene, he was still able to use deadly force under Wisconsin law because he reasonably believed he had no other alternatives at those moments to avoid death or great bodily harm.” That means the jury is tasked with trying to imagine what they would do at a mobbed public protest in which so many people were brandishing weapons that the cops, trying to maintain order, stopped taking weapons to mean anything.
The Rittenhouse jury should not be held responsible for the ways in which gun owners may be emboldened to vigilantism by the outcome of this trial. You can provoke violence and reasonably be afraid of violence at the same time. The jury should not be held responsible for the potential proliferation of armed citizens taking it upon themselves to enforce the law, or the defenses those citizens will increasingly feel entitled to use to explain their actions once things go wrong. The jury must confine itself to the facts of this case. The Supreme Court, on the other hand, is poised to ensure that in the future, juries will be asked, again and again and again, to decide how things should go when everyone had a gun, everyone else wanted to use it, everyone knew their intentions were good, but suspected everyone else was a danger. How do we act as a society when absolutely everyone is always in fear of their life? Welcome to the future. It’s already here.
[Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.]