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ZorbaTHut  2yr ago (text post)   35636 thread views

Culture War Roundup for the week of September 26, 2022

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I would venture that he's denying victim status to the two people Rittenhouse killed and the third he wounded - Rittenhouse being the victim. From the conservative perspective, they were aggressors who happened to aggress someone holding a loaded weapon.

From the conservative perspective, they were aggressors who happened to aggress someone holding a loaded weapon.

I find this a strange statement. What about this is particular to the conservative perspective? I wasn't under the impression that someone's perception of the physics of an altercation was all that defined by someone's political perspective. E.g. I'm not a conservative, and having watched a video of the encounter, from my perspective, they were aggressors who happened to aggress (upon) someone holding a loaded weapon.

In theory, it shouldn't be. But self-defense law contains some statements that are open-ended (really all laws contain such statements, because natural languages are ambiguous). And one's political view could influence how you read and interpret these phrases. Now, some people seem to go much further and just don't know what the law says at all, and seem to think that you can (and should) only use a gun in self-defense against someone who doesn't also have a gun if you already have been stabbed or beaten and are imminently going to die. AFAIK this is not the law in any US state. However, the actual principles behind self-defense will include phrases like "reasonable belief." What is reasonable? Different people could disagree. One person might say that if you are a minor, and an adult is running after you, yelling at you, and throwing things at you, that you reasonably believe they are trying to (and able to) harm you, while another might say that isn't a reasonable belief. Or the law will contain terms like "reasonable means to escape." Again, what is reasonable?

However, the actual principles behind self-defense will include phrases like "reasonable belief." What is reasonable? Different people could disagree. One person might say that if you are a minor, and an adult is running after you, yelling at you, and throwing things at you, that you reasonably believe they are trying to (and able to) harm you, while another might say that isn't a reasonable belief. Or the law will contain terms like "reasonable means to escape." Again, what is reasonable?

Indeed, but none of this seems conservative to me. Just knowing basic scientific facts about biology and physics, my conclusion is that the video I saw of Rittenhouse shooting and killing someone was an example of self-defense in the face of aggressors aggressing upon someone who was holding a loaded weapon. What about this is specifically conservative?

What about this is specifically conservative?

In my opinion, nothing (and it's not limited to conservatives either--I'm libertarian and it looks to me like Rittenhouse was fairly clearly acting in self-defense). Self-defense is a basic human right. But even basic human rights are politically charged these days. While I don't think I can steel-man the case that Rittenhouse was definitely guilty of murder, let me offer a few observations:

  1. From the liberal point of view, carrying a gun is itself an aggressive act. There was a lot of this at the time, people desperately trying to make legal (or debatably technically illegal, but not in a way that is relevant to self defense) open carry into a provocation. This is one of those things that is just invented and has no basis in law.

  2. 2 of the people Rittenhouse shot were not carrying guns. If you are not familiar with guns except from movies and think of a gun as a magical death machine that mows down all opposition no matter what, and don't realize the damage that a blow to the head with a skateboard (or being jumped on while on the ground) can do, then using a firearm in such a situation is a substantial escalation. I think this is mostly a factual mistake, supplemented by tribally targeted sympathy. Relatedly...

  3. There was probably a lot of tribalism. AFAIK, no one who thought Rittenhouse was guilty also thought that the McMichaels engaged in reasonable self-defense against Ahmaud Arbery, even though in my opinion Arbery and Rittenhouse were in fairly similar circumstances. Again, much was made of Rittenhouses's alleged connections to "militia groups" and his alleged political opinions were supposed to be evidence that he went looking for protesters to shoot. So they assumed, based on those things, that he was more likely to be the aggressor.

From the conservative perspective

Well, also from the jury's own unanimous perspective, and therefore from the perspective of the criminal justice system.

Let's not overstate what a jury verdict means. The jury was instructed that "The burden is on the state to prove beyond a reasonable doubt that the defendant did not act lawfully in self defense. And, you must be satisfied beyond a reasonable doubt from all the evidence in the case that the circumstances of the defendant's conduct showed utter disregard for human life."

It is standard that the state has the burden of proving that a defendant did NOT act in self-defense. So, any acquittal on self-defense grounds says little about what the jury thought of the defendant, and certainly is not an indication that they decided that he was the "real victim" nor that the decedent was the "real bad guy." And, it is certainly possible for both sides to be acting in reasonable self-defense; had Rittenhouse been killed by one of those whom he shot, his killer probably also would have been acquitted. But that would not mean that the jury decided that that killer was the "real victim" and that Rittenhouse was in the wrong.

We're splitting hairs at this point, but the fact remains that the US criminal justice system has an established process and standard to decide when people are victims, and the system concluded in this case that Rittenhouse was the victim and these other individuals were not, because that conclusion (to within the standard burden of proof) was required for the outcome that obtained.

No, the fact remains that the a finding that Rittenhouse was the victim and the others were not was NOT required for the outcome. That is literally what it means to say that the state had the burden of proving that he was not acting in self-defense.

Edit: That is why an acquittal on self-defense grounds does not prevent a subsequent civil case against the defendant:

When the first suit is a criminal prosecution resulting in an acquittal, the courts almost unanimously hold that there should be no preclusive effect given the acquittal in a subsequent civil action. A recent case, which arose in Maryland, will serve to illustrate the application of this rule. In United States v. Burns, the government brought an interpleader action to determine the distribution of the proceeds of a National Service Life Insurance policy. The widow of the insured had been acquitted of the murder of her husband on the theory of self-defense. In the interpleader action it was held that the acquittal was not preclusive, and the theory of self-defense which was accepted in the first suit was rejected. Despite the acquittal, the court found that the wife murdered her husband and was not entitled to the insurance proceeds. [¶] Although this result seems unduly harsh and illogical at first glance, there is a valid explanation which justifies it. In criminal actions the burden of proof is "beyond a reasonable doubt," while in civil actions the burden is proof by "a preponderance of the evidence." Therefore, an acquittal in the former action serves to show only that the government did not prove beyond a reasonable doubt that the defendant committed the crime. This does not mean that the more lenient civil burden of preponderance of the evidence could not have been satisfied. Therefore, a party in a subsequent civil action should not be precluded from attempting to prove an issue by a preponderance of evidence merely because the government did not support the burden of proof beyond a reasonable doubt.

I believe this is a slight simplification. After all, claiming self-defense is relatively rare. Given an altercation without video or additional witnesses, how could you ever convict someone who just claimed self-defense? I think that there is some (relatively minor, but still existent) hurdle the defendant has to pass before being allowed to claim self-defense, and only then does "reasonable doubt" apply.

Yes, there has to be some evidence of self-defense in order to get the issue before the jury. That can be the defendant's own testimony, but the jury of course can decline to believe the defendant. If they don't believe him, then that is enough to convict. The People have proven their case by convincing the jury that the defendant is lying.

So, any acquittal on self-defense grounds says little about what the jury thought of the defendant, and certainly is not an indication that they decided that he was the "real victim" nor that the decedent was the "real bad guy."

The post to which you're replying was quoting a part that was referring to:

they were aggressors who happened to aggress someone holding a loaded weapon.

Which is different from any statement about who's a "real victim" or the "real bad guy." Given that the jury decided that the prosecutors were unable to prove beyond a reasonable doubt that Rittenhouse did not act in self defense, it seems reasonable to conclude that all the evidence they saw led them to conclude that, beyond a reasonable doubt, Rittenhouse's actions were a response against aggressors by someone holding a loaded weapon.

seems reasonable to conclude that all the evidence they saw led them to conclude that, beyond a reasonable doubt, Rittenhouse's actions were a response against aggressors by someone holding a loaded weapon

No, it is not reasonable to infer that, because that turns the burden of proof around and places it on the defendant. If, for the sake of argument, "beyond a reasonable doubt" means 95% sure, you are saying that the verdict implies that the jury was 95 pct sure that Rittenhouse's actions were a reasonable response to aggressors, when in fact all it means is that they were more than 6 pct sure.

That's a fair point, and I was erroneous when I wrote "beyond a reasonable doubt" there. Rather, what I should have written was that the evidence led the jury to conclude that, by the criminal justice system's standards, Rittenhouse's actions were a response against aggressors by someone holding a loaded weapon.

Well, again, all one can infer is that the jury was not convinced, beyond a reasonable doubt, that his actions were NOT reasonable. It is irrelevant whether they actually posed a threat; all that is relevant is whether Rittenhouse believed that they posed a threat and whether belief was reasonable, not whether it was true. As the jury was instructed, "The reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of the defendant's acts and not from the viewpoint of the jury now."

; had Rittenhouse been killed by one of those whom he shot, his killer probably also would have been acquitted.

Why? All those that were injured or killed by Mr. Rittenhouse started the altercation. Seems like a loophole to be allowed to legally kill people, if they decide to fight back.

Because 1) The exact roles of everyone involved was in dispute; and 2) the situation was chaotic in general; and 3) here is the instruction given to the jury on the issue of self defense by an initial aggressor:

You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack. However, if the attack which follows causes the person reasonably to believe that he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense. But the person may not use or threaten force intended or likely to cause death unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.

Notice that "starting the altercation" is not enough; the person must have been engaged in "unlawful conduct," and even if he does, if the other person uses what the initiator reasonably believes to a threat of imminent death or great bodily harm, all that means is that the initiator loses the right to "stand his ground."

Given all that, and given that the burden is on the government to prove,** beyond a reasonable doubt**, that the defendant was NOT acting in self-defense, the govt would have a hard time getting a conviction of anyone involved. Not impossible, certainly, but definitely an uphill battle, in this particular case. Again, I am not saying that they SHOULD be acquitted, but rather only that the probably WOULD be acquitted.

Wouldn't Rosenbaum's verbal threats, eg "if I catch any of you f**kers alone, I’ll f**king kill you," combined with his "starting the altercation" when he encountered Rittenhouse alone later in the night make it much easier in at least Rosenbaum's case? If not, that seems like a gaping hole in the law that desperately needs to be fixed.

Easier? Sure. But nevertheless, not easy. The point is that, as I noted, it is perfectly possible for both parties in an altercation to act legally in self-defense, because the jury (or, more likely, each jury, since there would probably either be separate trials or one trial with two juries) is asked to assess what happened from the point of view of each person. Who was objectively actually in danger is not the issue.

Everyone that Rittenhouse shot was chasing him. Maybe in Rosenbaum's case it could be argued that Rosenbaum had a reasonable belief that Rittenhouse was tactically retreating, but Rosenbaum still started the altercation and never attempted to break off.

For the others that were shot, Rittenhouse was running down the middle of a street, not toward any kind of cover, and with his gun aimed toward the ground. His pursuers had to run about a hundred yards to reach him and knock him down.

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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