Lessons from the Case of Kyle Rittenhouse - Part 2

by Art Joslin, J.D., D.M.A.

By this time, you are well-aware that Kyle Rittenhouse was acquitted at trial of all charges levied against him. Before we get into the details of lessons learned, I want to clarify something from last month’s eJournal. I alluded to, in passing, that the Rittenhouse defense team would need to prove their case by a reasonable doubt. Because of publication deadlines and my rush to get information to the members, I hastily overlooked the need to explain this issue. Allow me to clarify.

The burden of proof is beyond a reasonable doubt; this burden falls on the prosecutor. He must prove his case by that standard. In a case of affirmative defense of self defense, however, the defense has the burden of production and should produce some type of evidence, at some level above zero, to show self defense. The old standard was the defense must prove self defense by a preponderance of the evidence. This is no longer the case as the last holdout state, Ohio, changed its statute. This went away March 19, 2019 and is now the standard in all 50 states. You may still see preponderance of the evidence used in a self-defense immunity hearing. If immunity is not granted, then the case can go to trial. If immunity is granted, case over.

This would be a good time to explain these burdens. Burden of proof is on the prosecution to prove the charges against the defendant at trial, beyond a reasonable doubt. Beyond a reasonable doubt is a high standard. Although most legal scholars are hesitant to place a threshold number on the standard, many agree it is somewhere north of 90%. However, the defendant, in any criminal case, may sit mute and not offer any evidence or testimony, relying solely on the lack of ability of the prosecution to prove the charges against them (at least they hope so). Although the defense does not have to offer anything, typically the burden of production falls on the defense. In other words, the defense has the burden to produce some minimal amount of evidence, to the trier of fact, to dispute the prosecution’s charges.

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President’s Message

Marty Hayes

by Marty Hayes, J.D.

Each month or so, we get word that one of our Armed Citizens’ Legal Defense Network members has passed away. Usually, word comes from the late member’s spouse, but sometimes from other family members. Well, this month we here at the Network are grieving that our Advisory Board member Jim Fleming passed away after being sick with COVID-19. This just happened a couple of days ago, so we have not had time to really process what his loss means, but we wanted to make sure our members got the sad news. We will have more to say next month. For now, we feel terribly sorry for what his wife, Lynne, is going through.

Last Word on Kyle Rittenhouse

I have followed the Rittenhouse case since its inception, with the intent of summarizing it like I did with the George Zimmerman case (https://armedcitizensnetwork.org/our-journal/archived-journals/292-august-2013). This time, though, I was relieved of this duty by the addition of Art Joslin to the staff of the Armed Citizens’ Legal Defense Network.

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Attorney Question of the Month

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In this column, our Network Affiliated Attorneys generously contribute commentary and information from their professional experience to help Network members better understand the myriad legal issues affecting armed citizens and self defense. With members pondering the concerns faced by a defendant in a use of force case through the lens of the Rittenhouse trial, we asked our Affiliated Attorneys whether they included appeals in the scope of their law practice. We asked–

Do you generally do appellate work and if so, what are some of the primary hurdles compared to an affirmative defense of self-defense trial?

How does the time commitment change with appeals work, compared with a jury trial, and how do the costs factor into the process?

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Book Review

Handgun Combatives

By Dave SpauldingHgCmbtvs

2nd Edition, 2020


Softcover, 6 x 9, 234 pages

$ 23.95 at Looseleaf Law Publications

Reviewed by Art Joslin, J.D., D.M.A.

Handgun Combatives is Dave Spaulding’s twenty-two-chapter text that serves as the basis of his Handgun Combatives courses in pistolcraft. I chose his book as my first book review for the Network since I recently attended Dave’s Kinetic Pistol course in Texas earlier this year.

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Editor’s Notebook

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by Gila Hayes

As gun folk pilloried Kenosha, WI prosecutor Thomas Binger for pointing Kyle Rittenhouse’s rifle around the courtroom, we were accorded an opportunity for personal evaluation, to ask what unsafe gun handling or procedures have we let slip in to our own habits.

Few will dispute that Binger, already held in poor regard, earned further contempt by putting his finger on the trigger and gratuitously pointing the evidence rifle around the courtroom. So much of the wild rhetoric spouted during the trial had little relationship to reality, making it impossible to guess what the prosecutor hoped to achieve when he picked up the rifle.

I’m a little less obsessed than most with his carelessness. In the final analysis why another person does something matters very little. You control only your own actions and reactions and your ability to provide good reasons for what you do ... which takes me back to the cries of outrage about Binger’s gun handling that almost drowned out more important questions.

Did any of us ask ourselves, how is my gun safety when no one is watching? A pistol carried daily, a shotgun or rifle kept at hand for nighttime home defense, or an air rifle or a .22 plinker kept ready to dispatch small, destructive pests on the farm all provide opportunities for us to demonstrate that deadly weapons can be kept emergency-ready but secure without injuring or killing our family members, visitors to our homes and people on neighboring properties.

Perhaps more than any other common tool or implement, in order for the firearm to be useful, it must be capable of being employed as a tool of destruction, injury or death. Failing to acknowledge that reality leads to carelessness. Carelessness contributes to irresponsibly unsecured guns being stolen, children or incompetent adults being hurt or killed or inflicting the same fate on others when they get their hands on a gun unsupervised or gun owners themselves suffering injury or death, or inflicting it on others, while unsafely handling their firearms.

Gun folk were fast to cite the Four Universal Rules of Gun Safety when calling out Binger for his demonstration. It is a good start but experience suggests that safe behavior with any tool is much more than adhering to a list of rules. Personal responsibility is a lifestyle and for gun owners that lifestyle starts with acknowledging that firearms are potentially deadly. If not, guns would be useless to stop attacks against innocent people.

As we saw in Rittenhouse’s trial, when one person shoots another, defending him- or herself from a violent attacker, many questions, including whether carrying a highly-effective firearm was appropriate, will be asked. Have you noticed that, conversely, when a marauding warlord attacks villagers in a third-world country or Taliban insurgents rape and kill women and young children, the pundits never agonize over whether the guns carried by the soldiers sent to the rescue are of an excessively large caliber, are loaded with too many cartridges, or can be fired too quickly or effectively? I find that strange.

The news media, politicians and much of the public foolishly ascribe power to inanimate objects as did a Canadian news “analysis” headlined, “I’m scared of the kind of gun Kyle Rittenhouse used. Americans should be, too.” In reality, only the person in possession of the gun can cause the result for which the gun is blamed. A human picks up a gun and points it at other people; a human fails to secure a firearm before it is stolen or misused; a human has a finger on the trigger before stumbling or being startled then unintentionally firing a shot, or shooting themselves. Firearms are inanimate and “cause” nothing.

No one is exempt from responsibility to behave safely. If a person doesn’t understand the safe use of a power saw or a drip torch, for example, he or she has no business picking one up. The same applies to firearms. There are no “big boy rules” whereby one may suspend responsibility. Just as we condemn Binger for waving a rifle around inside the courtroom, we never, ever get to say, “high-speed operators are allowed to point guns at others because they’re so well-trained to keep their finger off the trigger” or whatever is the current variation on that old excuse. There are no gun handling “big boy rules” only safely, responsibly identifying and pointing in a safe direction.

Consciously identify a safe direction before you pick up or draw a gun. First, ask what is on the other side of walls or floors? Use safe backstops during necessary gun handling and don’t unnecessarily, casually handle guns – even guns you believe are unloaded. When you do administratively handle your firearms, is your trigger finger indexed up on the frame, well away from the trigger? Indexing your finger up on the frame, far away from the trigger establishes habits on which you base your actions when you are frightened, sick or exhausted. Make absolutely certain that you’re not habituating dangerous, careless gun handling.

Stick with me. I’m almost done. The last point I’d like to raise is absent from the Four Universal Rules of Gun Safety, but integral to the responsible lifestyle. When you are not in immediate control of your firearm(s), lock them up. Guns do not belong in your sock drawer, hidden under the couch cushions or stashed under your mattress. If you own guns, you are responsible for keeping them secure when they are out of your immediate control. Take your responsibilities seriously.

It is easy and somehow it is internally rewarding to criticize the foolishness of a despised enemy. We probably won’t manage to switch off that aspect of the human condition, so let’s add something of value to the distaste we feel for the assistant district attorney Binger’s unsafe gun handling.

How does your safety and responsibility as a gun owner measure up?

To read more of this month's journal, please click here.

About this Journal


The eJournal of the Armed Citizens’ Legal Defense Network, Inc. is published monthly on the Network’s website at http://armedcitizensnetwork.org/our-journal. Content is copyrighted by the Armed Citizens’ Legal Defense Network, Inc.

Do not mistake information presented in this online publication for legal advice; it is not. The Network strives to assure that information published in this journal is both accurate and useful. Reader, it is your responsibility to consult your own attorney to receive professional assurance that this information and your interpretation or understanding of it is accurate, complete and appropriate with respect to your particular situation.

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