It's time to change the law of self-defense

By James P. Rooney
BridgeTower Media Newswires

Self-defense has featured prominently in two recent widely publicized trials in Wisconsin and Georgia. The Rittenhouse trial led me to question what I knew about the law of this defense.

I could understand the defense arguing that Kyle Rittenhouse acted in self-defense in connection with the first man he shot, but how could he plausibly make such a claim in the shooting of the other two men who apparently were each trying to stop Rittenhouse from shooting anyone else?  

When I explored this issue, I discovered that there is a gaping hole that needs to be fixed in Wisconsin’s self-defense law and in Massachusetts’ similar law.

I turned first to my old LaFave and Scott hornbook on criminal law. It begins its discussion of self-defense with the general statement that “[i]t is only just that one who is unlawfully attacked by another, and who has no opportunity to resort to the law for his defense, [who] should be able to take reasonable steps to defend himself from physical harm.”

The key phrase there is “unlawfully attacked.” The Model Penal Code §3.04(1) uses this phrase in its basic description of self-defense as “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” That is, a defendant’s claim of self-defense is justified only if the attack that is being defended against is unlawful.  

In the Rittenhouse case, when Anthony Huber attacked Rittenhouse with a skateboard, it would appear that Huber was lawfully acting in defense of all the others in the area who he reasonably perceived might be the next victims of this heavily armed youth who had just shot an unarmed man dead in the street with four shots from a semi-automatic rifle that he was still holding.  

After Rittenhouse then proceeded to shoot and kill Huber, Gaige Grosskreutz, arguably the proverbial good guy with a gun, had even more reason to believe Rittenhouse presented a danger to those nearby now that two were dead by his hand. If so, then surely Grosskreutz was acting lawfully when he pointed his pistol at Rittenhouse to try to relieve him of his weapon.

It is not as if Wisconsin law rejects the notion that a person may come to the defense of others. Indeed, its self-defense statute provides that a “person is privileged to defend a 3rd person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference.” Wis. Stat. §939.48(4).  

But that provision would apply only as a defense to a charge brought against a person who acted in defense of others. If, as here, it is the person charged with shooting those who sought to defend others who was on trial, this provision of Wisconsin law plays no role. This explains why the charge to the Rittenhouse jury included no mention that the actions of Huber or Grosskreutz might have been justified.

The Rittenhouse jury was charged as follows on self-defense:

“The law of self-defense allows the defendant to threaten or intentionally use force against another only if:

• the defendant believed that there was an actual or imminent unlawful interference with the defendant’s person; and
• the defendant believed that the amount of force used or threatened to use was necessary to prevent or terminate the interference; and
• the defendant’s beliefs were reasonable.”

A belief may be reasonable even though mistaken. In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.

This instruction told the jury to consider both Rittenhouse’s subjective belief that he was in danger and the objective question of whether that belief was reasonable. It does mention unlawful attack, but only in the context of Rittenhouse’s subjective belief that he was under unlawful attack, not whether that belief was objectively true.

That is, if Rittenhouse subjectively believed that Huber and Grosskreutz intended to cause him grave harm, even if he was utterly wrong, that would satisfy the subjective portion of the test.

That instruction is not all that different from the Massachusetts instruction on the use of deadly force in self-defense. The model Superior Court homicide instruction begins by stating that when a self-defense instruction is warranted, the prosecution must disprove that the defendant acted in self-defense. It offers a number of options for the prosecution to show this, including the “defendant did not actually believe that he was in immediate danger of death or serious bodily harm” or that a “reasonable person in the same circumstances as the defendant would not reasonably have believed that he was in immediate danger of death or serious bodily harm.”  

No mention is made in the instruction of whether the victim’s attack was lawful or unlawful. This means that in both Massachusetts and Wisconsin, the prosecution cannot negate a claim of self-defense simply by showing that the attack on the defendant was lawful. The prosecution has instead a more difficult path to prove: either that the defendant did not really believe he was in mortal danger or that, objectively, such a belief was unreasonable.  

While it is worth noting that there is a difference between the two states as to whether the defendant has an obligation to retreat first — Massachusetts requires retreat if the defendant was away from home; Wisconsin does not require retreat — that does not necessarily change the evaluation of whether the defendant acted objectively reasonably. That is because in Wisconsin a failure by the defendant to retreat can be considered in determining whether a reasonable person in the same situation would have retreated. State v. Wenger, 225 Wis.2d 495, 503, 593 N.W.2d 467 (1999).

What this means is that, in both Wisconsin and Massachusetts, when a defendant has shot a person who was attempting to defend others against a lethal attack by the defendant, the prosecution must do more than simply show that, in fact, the person injured or killed by the defendant was acting in defense of others. It must show, instead, that the defendant’s actions were objectively unreasonable.

The failure of the prosecution in the Rittenhouse case shows how difficult that can be. In essence, the prosecutor had to show that it was objectively unreasonable for Rittenhouse, after he had shot one person dead, to fail to recognize that some members of the public who witnessed this would think he was a dangerous killer and try to disarm him by force.   

Prosecutors should not have to make this sort of difficult showing when prosecuting a person like Rittenhouse. Self-defense is a justification, not an excuse, which means that a person who is acting in self-defense has committed no wrong. Killing or injuring a person who legitimately is trying to stop you from killing another can hardly be seen as fully justified.  

It is time to change the law of self-defense by eliminating it as a complete justification for killing or injuring a person who steps forward and tries to stop someone from killing or injuring others.