How far can a claim of self-defense extend?

Bob Buckley
Legal perspectives
Bob Buckley

As if the country needs any further division, the verdict in Kenosha, Wisconsin acquitting young Kyle Rittenhouse of murder charges has caused more conflict. His attorney, Mark Richards, was interviewed by CNN after the verdict and explained calmly and eloquently that he used the self-defense law of Wisconsin to defend his client and he thought that the proper verdict had been rendered.

After reviewing the jury instructions in that case and researching the law of self-defense I understood how the jury reached its decision. I question the wisdom of a 17-year-old leaving his home in Illinois to go to Kenosha armed with a semi-automatic assault rifle, but once there, when confronted with the three men he shot, the verdict made more sense under the self-defense law of Wisconsin. Having researched Missouri’s self-defense laws and jury instructions, I am not sure a similar verdict would have been rendered in Missouri. I have never handled a criminal case in my 41-year career, and thus I am writing from the perspective of a civil trial lawyer.

Self-defense is a “special negative” defense in both states in which the defendant has the burden of injecting into evidence the issue of self-defense and if permitted by the trial judge, but the prosecutor continues to have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. In Missouri, the judge must determine as a threshold to use of self-defense; there must be substantial evidence to support its submission, and the trial judge makes that decision.

In Missouri, to submit a self-defense instruction to the jury, the court must first find substantial evidence of four things:

1. The defendant did not provoke or was not the initial aggressor.

2. The defendant had reasonable grounds for believing he was faced with immediate danger of serious bodily harm.

3. The defendant did not use more force than necessary.

4. The defendant did everything in his power and consistent with his own safety to avoid the danger.

The use of deadly force is justified only when the defendant reasonably believes deadly force is necessary to protect himself or another from immediate danger of death or serious bodily harm. The jury instruction defines initial aggressor as one who first attacks or threatens to attack another. If there is disputed evidence as to who is the initial aggressor, the jury decides that fact. Furthermore, if you are the initial aggressor you must withdraw from the original encounter and clearly indicate to the other person a desire to end the encounter to then use physical force in lawful self-defense.

The fourth element is based on a “duty to retreat." That duty was modified by the legislature in 2016 when it amended the “castle section” of the self-defense law. The castle law was established in 2010 and provided that a person does not have a duty to retreat from a dwelling or vehicle where the person is not unlawfully entering or remaining unlawfully, or from private property that is owned or leased by such individual. The 2016 amendment provided that a person does not have to retreat if the defendant is in any other location that such person has the right to be. Does a 17-year-old have a right to be at the scene of a chaotic protest with a semi-automatic assault style weapon

You be the jury in the Rittenhouse case and decide if Kyle provoked or was the initial aggressor and withdrew as required by Missouri law.

After reviewing the jury instructions in Wisconsin, I understand how the jury reached its decision on the three charges against Rittenhouse. First, Wisconsin specifically provides in its instructions that there is no duty to retreat. There is a heading in the instructions that states “No Duty to Retreat." The instruction merely states that there is no such duty, but in “determining whether the defendant reasonably believed the amount of force used was necessary to prevent or terminate the influence, you may consider whether the defendant had the opportunity to retreat with safety, whether such retreat was feasible, and whether the defendant knew of the opportunity to retreat.”

There is another section entitled “Provocation.” which provides that 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 the attack.” Yet, the next paragraph says, “if the attack, which follows causes the person reasonably to believe he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense.”

Unlawful conduct is not defined, and it appears to provide that even if engaged in unlawful conduct he can still utilize self-defense. The distinction between Missouri and Wisconsin is the duty to retreat and the requirement in Missouri that you can’t be the one who first attacks or threatens to attack unless you withdraw from the original encounter and clearly indicate to the other person your desire to end the encounter. If he does withdraw, he is no longer the initial aggressor. The duty to retreat is built into the initial aggressor requirement in Missouri.

Kyle Rittenhouse had an excellent lawyer, but he would probably agree that the defense would be more challenging in Missouri. Those who are considering use of force in same or similar circumstances in Missouri should consider the consequences. Vigilantism is not protected conduct in Missouri. Nor does the Rittenhouse case give you a license to kill.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.