By Ronald Sullivan
An earlier version of this article incorrectly stated Jacob Blake was unarmed at the time he was shot. While that was the perception at the time, videos of the incident showed he had a knife.
In a two-week trial that reignited debate over self-defense laws across the nation, a Wisconsin jury acquitted Kyle Rittenhouse for shooting three people, two fatally, during a racial justice protest in Kenosha.
The Wisconsin jury believed Rittenhouse’s claims that he feared for his life and acted in self-defense after he drove about 20 miles from his home in Antioch, Illinois – picking up an AR-15-style semi-automatic rifle in Kenosha – in what he claimed was an effort to protect property during violent protests. The lakeside city of 100,000 was the scene of chaotic demonstrations after a white police officer shot Jacob Blake, a 29-year-old black man, leaving him paralyzed from the waist down.
In delivering its verdict, a Wisconsin jury decided that Rittenhouse’s conduct was justified, even though the prosecution argued that he provoked the violent encounter and, therefore, should not be able to find refuge in the self-defense doctrine.
As prosecutor Thomas Binger said in his closing argument : “When the defendant provokes this incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.”
The Wisconsin jury disagreed, and its decision may portend a similar outcome in another high-profile case in Georgia, where three white men are on trial for the shooting death of Ahmaud Arbery after they claimed the Black man was a suspect in a rash of robberies. Like Rittenhouse, the three men claimed they were acting in self-defense .
Self-defense arguments are often raised during trials involving loss of life. Juries are then asked to determine whether a defendant’s conduct is justified by principles of self-defense or whether the offender is criminally liable for homicide.
Complicating matters is that each state has its own distinct homicide and self-defense laws. Some states observe the controversial “ stand your ground ” doctrine, as in Georgia – or not, as in Wisconsin – further clouding the public’s understanding on what constitutes an appropriate use of deadly force.
Five elements of self-defense
As a professor of criminal law , I teach my students that the law of self-defense in America proceeds from an important concept: Human life is sacred, and the law will justify the taking of human life only in narrowly defined circumstances.
The law of self-defense holds that a person who is not the aggressor is justified in using deadly force against an adversary when he reasonably believes that he is in imminent danger of death or serious bodily injury. This is the standard that every state uses to define self-defense .
To determine whether this standard is met, the law looks at five central concepts.
First, the use of force must be proportionate to the force employed by the aggressor. If the aggressor lightly punches the victim in the arm, for example, the victim cannot use deadly force in response. It’s not proportional.
Second, the use of self-defense is limited to imminent harm. The threat by the aggressor must be immediate. For instance, a person who is assaulted cannot leave the scene, plan revenge later and conduct vigilante justice by killing the initial aggressor.
Third, the person’s assessment of whether he is in imminent danger of death or serious bodily injury must be reasonable, meaning that a supposed “reasonable person” would consider the threat to be sufficiently dangerous to put him in fear of death or serious bodily injury. A person’s own subjective view of this fear is not enough to satisfy the standard for self-defense.