It defeats the purpose of defending your friends and family with lethal force if you are locked away from them for life. (source)
The Curious Case of Kyle: Legal Self-Defence Written by Jonathan Fader; Audio by Jonathan Fader

This is the third part in a series using the recent Kyle Rittenhouse case as a case study for examining self-defence and its various aspects (Part 1, Part 2).

In this particular article I will be looking at the legal aspects of self-defence and how or when it might have been different. For a more in-depth breakdown of the actual events and timeline see Part 2.

I think a good place to start is to give a basic definition of what is “law.” However, the term “law” in the English definition, as it turns out, is actually rather complicated. Here are the first few definitions relevant to this post. For a full list please click here (1):

  • noun A rule of conduct or procedure established by custom, agreement, or authority.
  • noun The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system.
  • noun The condition of social order and justice created by adherence to such a system.
  • noun A set of rules or principles dealing with a specific area of a legal system.
  • noun A statute, ordinance, or other rule enacted by a legislature.
  • noun A judicially established legal requirement; a precedent.
  • noun The system of judicial administration giving effect to the laws of a community.
  • noun Legal action or proceedings; litigation.
  • noun An impromptu or extralegal system of justice substituted for established judicial procedure.

In layman’s terms, “law” or “the law” is a set of rules decided by judges, parliamentary process, or the government to determine what is and is not appropriate behavior in a given society, town, country, or region. Law does not always mean moral, just, or right, and though laws are meant to keep order sometimes good intentions have the wrong effects. Other times laws are very clearly there for good reason. Some laws are easy to understand and universal like “thou shalt not murder.” And others are specific to a region or country, in line with the beliefs and standards of that particular area.

Laws are not the same in all or most places and it is my opinion that part of self-defence is having a basic understanding of not only the basic laws in your country and region, but also how the legal system works. This particularly applies to the self-defence laws, as they are not all the same and have wildly different acceptable standards.

Like many cases in the past year or so in the USA, this case received international attention all over the Internet. Which means often people comment in countries or states where the self-defence laws are quite different and thus their understanding of the law is either skewed or misinformed. Fundamentally it doesn’t matter what you believe the law is based on where you are, what matters is what was the law in the place where the offense took place.

For example, had this event taken place in Canada, Kyle would have been arrested, as it would be illegal to walk around the streets with an AR-15, which was a restricted (now prohibited) firearm. Meaning you cannot be walking around like that legally. In Canada you could walk around with a non-restricted firearm for a legitimate purpose, such as hunting in the woods, assuming you have the licenses but if you were to do the same in the city you would certainly be arrested and charged with one of many possible charges. Additionally in Canada, there are no provisions or laws that allow you to purposely use a firearm for self-defence. Though there are court cases where people have used guns in self-defence, under current law if you took a gun out to a riot for self-defence it would result in you being charged and you likely would not be allowed to use the “self-defence defence” even if the situation was identical to Kyle’s.

However as this took place in Kenosha, Wisconsin, the laws of the state must be looked at. According to state law minors may walk around with firearms, therefore in that place Kyle was legally allowed to posses the firearm at that time. Though likely originally intended for hunting (2) nothing in this law, as written, prevented him from carrying the firearm in the way he did. The judge ended up throwing out the charge (3) associated with possession of a firearm, as for him to be charged the rifle would have had to have been considered a short barrel rifle, which this particular model was not. Claims that this was an incorrect discretion of the judge seem to be mostly based in opinion rather than the state law. The often repeated claim by many media outlets stating Kyle “illegally crossed state lines from his home state of Illinois to Wisconsin” were FALSE (3). Had he done so he could have potentially been charged in both states, however, he did not. Instead the gun was legally purchased by his friend Dominic Black and then illegally given to Kyle in what is known as a “straw purchase”(4). Dominic was appropriately charged and took a plea deal where he had to pay around $2000, however, he was not charged criminally. Just to further clarify, in Wisconsin anyone 18 or over can legally open carry a gun, without a license, so long as they have not been prohibited from doing so (4). Though Kyle himself was not 18, he was legally armed on the basis that the hunting laws allow for youth to carry long guns. This proved an issue for the state, as various laws were countering each other. Had Kyle been using a concealed weapon then he would have been charged, as this requires a permit and he would not have legally been old enough to acquire such a permit (4).

So what are Wisconsin’s self-defence laws? According to this (5) legal website they are loosely:

  • You use only the force necessary to prevent or terminate interference with your person or someone else’s person.
  • You must reasonably believe that such force is necessary to prevent imminent death or great bodily harm to yourself.

This is actually fairly standard in many Western countries. The term “reasonable” comes up and often must be comparable to what force is being used against you. If you wanted to compare that to Canadian law you can so here (6).

In Kyles case, he was legally in possession of the firearm. Using firearms for self-defence is allowed in Wisconsin and he tried his best to not use it up until the point his life was imminently threatened. Which is why he was found not guilty under the self-defence law. Had the jury found differently then there is a serious case that it was politically motivated and not based in the facts of the case or the law. Though it would have been likely Kyle would have won an appeal based on the case facts and the actual law.

As I write from Canada I think it is always important to discuss the comparison. In Canada, even if all the facts of the case were identical, he would not be able to claim self-defence, because he would not have been legally allowed to bring that rifle in the first place. And even if he was, it is likely the crown would argue he had intent to kill or cause seriously bodily harm, as walking around with firearms under such circumstances is not normal in Canada, thus it can be inferred he likely had malicious intent. Even if his life was imminently threatened he would likely be charged and convicted of various crimes related to firearms possession and misuse, and he would most certainly see jail time.

Additionally what is considered reasonable is very relative. What use of force instructors consider reasonable is often very different than what the average person considers reasonable. And while I personally think it is reasonable to carry a gun in a violent situation, just in case, the law of my country and the average Canadian disagrees (rural Canadians may agree with me though). This means sometimes it doesn’t matter what you consider reasonable, but rather what does the current law, case law, statute, precedent, and your peers deem reasonable.

Okay, had enough yet? In this particular case no matter what the media said, both from most legal experts and the result of the case, while there were some legal questions (even if from a technicality) Kyle did not break the law. Either way a reasonable question is, why does any of this even matter?

It’s simple. If it hasn’t been clear via my teachings or other posts, if you do not consider the law where you are, even if you lived to tell a tale, you may find yourself in jail or fined after a self-defence altercation. It really doesn’t matter what you think was right or reasonable when defending yourself, it’s what the law (among other things) says. Additionally, laws are different everywhere. It is prudent self-defence practice to understand the law where you are, ESPECIALLY if you are training for physical confrontation, even as a “just in case.”

Misunderstanding the law, or not taking it into account when you acted can have long term negative affects on you, and on your family, that you never intended. This really is why trying your best to avoid violent conflict is best, but, again, it’s not always possible. Additionally, even if people think you were moral, right, and reasonable in your use of force, the law and government may not care and may decide to make an example of you.

Most people barley know the laws in their own country let alone the specific self-defence laws. Which is already a problem, but what happens when you end up in another country where the laws are radically different? I have been told by students and peers that in some countries, money can get you out if it, and in others you better leave that country as fast as possible. Others may simply throw you in jail and forget about you.

It’s not enough to know just physical self-defence, you must understand at least the basics of the law and legal self-defence, especially as most governments do not accept ignorance of the law as an excuse.

I hope this LOOSE legal break down and commentary on the Kyle Rittenhouse case has better helped you understand both this case and how the law plays out in general. I just ask, don’t just listen to the one source or mainstream media with regards to how the law works, as they are often wrong or misleading. You must ensure that YOU really understand the law where you are and what the law is where a particular case occurred, as, in general, the only ones who can give opinion when the law is concerned are judges… and I am assuming that is not you.

The final instalment of this series will be on the morality of this case, I hope you are looking forward to it.

Written by Jonathan Fader


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