How Far Should the Right to Self-Defense Go in the US?

Many wonder how the young man who killed two people in Wisconsin could avoid life in prison, but in the U.S., a large number of lawyers had expected it from the moment they learned that the legal strategy was self-defense.

There are not that many countries where a 17-year-old kid can legally carry a rifle, and probably even fewer countries where he can go out armed, kill two people in the street and then be acquitted. Half the world is wondering how Kyle Rittenhouse — the young man who killed two people during the protests for racial justice in Wisconsin — was able to avoid life in prison, but in the U.S., a large number of lawyers had spent weeks warning about how this would end. They claim they knew it from the moment it became apparent that the legal strategy was self-defense.

The task of the jury was not to wonder what a minor was doing “defending private property” in a city that was not even his own. According to Wisconsin law, anyone can openly carry a weapon in public, even though that does not seem very advisable in the midst of a massive protest after a young African American man was shot seven times in the back by a white police officer. The jury had to decide something else: was Rittenhouse in “reasonable fear” of being killed by his victims? Had he “exhausted all reasonable means to avoid killing someone”?

Well, that depends. According to the witnesses, the first of Rittenhouse’s casualties threw a plastic bag at him and the second tried to hit him with a skateboard. Are those reasons enough to justify the “reasonable fear” of death? Well, apparently, in the U.S. they are, because the defense argued that those people intended to take his weapon away from him and use it against him. In other words, it is easier for the person carrying a weapon to justify shooting someone when faced with the danger of their own weapon in the event that someone takes it away from them.

If Rittenhouse were in Spain, the jury would have likely concluded that what he did was not self-defense, because there is no “rational need for the means employed” in order to avoid an aggression. In short, it was not necessary for him to shoot a person four times — one of those shots to the head — in order to repel the attack. Jurors would have also possibly reminded him that another condition is for there to be no prior provocation, and that is hard to assess in the case of his next victims: They had all seen him shoot the previous person and they all felt threatened.

The Survivor’s ‘Advantage’

This way of understanding self-defense introduces a perverse logic: It is in one’s interest to shoot first and to kill. Rittenhouse has avoided incarceration by arguing that he feared for his life, but if someone had killed him in that same incident, they would have been able to avoid prison by claiming that same thing. In a hazardous situation where several people are openly carrying weapons and everyone can claim they were afraid those weapons could be taken away and used against them … the survivor always has the winning argument.

In self-defense cases in the U.S., it is the prosecution that must prove that the accused does not meet the requirements to benefit from that exception, not the other way around. Furthermore, it is enough for one juror to have doubts: In order to refute the self-defense argument, all members of the jury must agree unanimously. Jurors are not required to decide if the accused was actually in mortal peril, only if “he reasonably believes” so. There is an unbelievable number of people who quickly sense a mortal threat in the presence of a person of color.

Moreover, as in Rittenhouse’s case, jurors analyze what happened during the altercation, but not the events leading to that situation. They assess whether the person’s attitude made the situation more dangerous. The fact that the young man traveled with an illegally purchased weapon to a city that was not his own in the company of other militia members he had met on Facebook in order to “help out” the already deployed military and the police when nobody had asked him to do that — none of that counts.

The Fear Excuse

And in any case, Wisconsin is not the worst of places for this. In more than half of U.S. states, “stand your ground” laws apply, allowing you to end someone’s life if you feel threatened, even if you can easily escape the situation. That is to say, if you fear for your life, even if you could step on the gas and easily drive away from danger, you can choose to kill a person and no one will hold you accountable.

On the grounds of “reasonable fear,” this kind of legislation has freed perpetrators of many homicides of African American people. The most obvious case is that of George Zimmerman, who, as part of the neighborhood watch in a residential area, shot and killed Trayvon Martin, a young, unarmed African American man who was visiting some relatives in Florida. Zimmerman invoked a supposed fear for his life and his right not to run away as recognized by the “stand your ground” law. He was acquitted; Martin became a symbol for racial inequality in the implementation of self-defense. He was 17, just like Rittenhouse when he went out patrolling.

However, last Wednesday, a Georgia jury rejected the self-defense argument and ruled a guilty verdict on the three men accused of murdering Ahmaud Arbery, also African American, killed last year while he was exercising. Georgia is one of those states where the “stand your ground” law applies, but this regulation does not apply if the one claiming self-defense instigated the encounter. In this case, the accused pursued Arbery because they suspected him of being involved in a string of burglaries.

According to historian Caroline Light in an interview on Politico, applying the law also depends on who the accused is. “When we look at the case of Cyntoia Brown, a 16-year-old Black girl who had been hired for sex by a middle-aged white man. In 2004, she used his firearm to shoot and kill him. Her attorneys argued that it was self-defense. And the courtroom saw her as guilty of murder and she was sentenced to prison. She spent 15 years in prison. So if we look at cases where if you look at the gender and the race, not only of the defendant but also of the person targeted, we see a pattern.”