Why we must consider more than ‘not guilty’ in the Rittenhouse verdict

By Emily Havener

Based on the evidence presented in the trial of Kyle Rittenhouse, it seems undeniable that the verdicts of not guilty are correct as the laws in our country stand. Rittenhouse did what he could in the moment to avoid firing his weapon, and he did have valid cause to fear for his safety.

What responsibility he had in creating the scenario in which he feared for his safety, our laws do not address: how his actions leading up to these shootings, and the laws in place in this country, create a conflict of perceived threat, as well as the ability to avoid responsibility for reckless decisions and actions that caused unnecessary loss of life.

None of this can be discussed outside the courtroom without bringing in open carry laws and the fact that both of the armed men in this conflict were, or at least should have been, in violation of gun laws in this country.

In this age of mass shooters and nationwide protests, the idea of vigilante justice has become quite popular. With this mindset, current open (and, I would argue, concealed) carry laws fail to address a new risk to society. Julie Bosman of The New York Times pointed out in a Nov. 22 “The Daily” podcast that open carry laws may create a conflict with self-defense laws. “In dozens of states, it is legal to openly carry a gun in public, and I think that the self-defense laws that are on the books tended to spring from a different era where people kept guns at home. Now open carry allows people to bring guns … to the grocery store or to a crowded demonstration.”

The point being: What about the threat communicated to others simply by carrying a gun? Can that ever, and should it be, considered legal provocation that negates a self-defense position? What happens after someone carrying a gun has justifiably shot someone in self-defense in a public place? How far can the claim go of an armed person that they feel threatened by someone unarmed, or armed with something other than a gun? Is the use of a gun in self-defense ever excessive given the nature of a specific situation? What responsibility does someone open carrying have to communicate they are not a threat or an active shooter? What responsibility do they have to mitigate their own level of fear in a situation of heightened emotion and potential unrest, such as a protest, where others may or may not be armed?

The prosecution made the argument that the people chasing Kyle Rittenhouse seemed to think he might be an active shooter intent on terrorizing protestors. It made the point that Gaige Grosskreutz was also in fear of his life. He stated to the court that he thought he was going to die. Yet he did not fire his weapon. He did not kill anyone.

These are the things some of us who feel disquieted by the Rittenhouse verdict are thinking about. With gun ownership and open as well as concealed carry come a great responsibility, one I see being ignored and minimized by unconflicted celebration. Just as we must acknowledge that the law has been upheld even if we do not like the circumstances, we must also acknowledge that these laws, and this legal outcome, have the potential for abuse to which any of us could be vulnerable.

One of the factors that contributes to this is the dismissal by the Wisconsin judge of the misdemeanor possession of a firearm by a minor. There is an exception to the law for hunting with barrels longer than 16 inches. The fact that Rittenhouse was clearly not hunting or intending to hunt, and that a weapon with a 17-inch barrel was used to kill two people and injure a third, implies that the right of minors to go hunting overrides others’ safety, and possibly even their right to life. The fact that the circumstances of Rittenhouse’s use of his 17-inch-barrel weapon were not considered, nor evidently that a friend provided Rittenhouse with a weapon he otherwise would not have been able to buy and use for purposes other than hunting, indicates that this law is likely a bad one. And the fact that Gaige Grosskreutz, who survived as the third person Rittenhouse shot, was carrying a gun despite allowing his permit to lapse, is further evidence that gun laws as they stand and are enforced are not enough to prevent avoidable violence.

Rittenhouse was also in violation of the curfew, no matter his intentions. In this regard, he is no or more less guilty than if he were cleaning graffiti or spraying it, putting out fires or starting them, and his background and the background of the people he shot has no bearing on this. A nation that permits a 17-year-old, and even communicates that he has a duty, to go armed into a scene of unrest in violation of curfew, above and beyond his original intention to simply stand and protect property, is a nation that does its youth and all its citizens a worrying disservice.