Legal Considerations Of Self-Defense In A Riot

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Surviving a lethal-force encounter in a riot is only the first step. The next, ensuring you don't get hung out to dry by the legal system.

What Are Some Legal Considerations Of Self-Defense In A Riot:

• Why you were there in the first place?
• Was your use of force reasonable given the threat?
• Did you at all, in word or action, escalate the situation?
• Was there any photographic or video evidence to support your use of force?
• Do you have a good understanding of that particular location's prosecutorial philosophy?

On August 25, 2020, 17-year-old Kyle Rittenhouse put an AR-15 over his shoulder and voluntarily went to downtown Kenosha, Wisconsin, into the midst of a riotous mob. The result was two people shot to death, with a third grievously wounded and young Rittenhouse being charged by the local county prosecutor with five felonies and one misdemeanor.

At the time of this writing, irrefutable facts show that Rittenhouse was being chased by the mob because he had assisted in putting out a fire, an action the mob took exception to.

This article, though, isn’t addressing the facts and narrative of the Kyle Rittenhouse case. That information is freely available over the internet and will be played out in the media for the next several months, if not years. Instead, I want to discuss the general legal parameters of the armed citizen defending themselves in the middle of a riot.

Important Questions

Why were you there? That’s the first question you’ll be asked if you’re involved in an act of self-defense during the middle of a riot. If you expect to survive (legally) after such an event, you need to have squeaky clean hands. You need to be able to make the claim that you were an innocent victim, and only a participant because a criminal act was occurring against you.

Was your use of force reasonable? If you start shooting in the face of a mob, when that mob isn’t actively threatening you, even though you were feeling fear of death or grievous bodily injury, you’ll need to convince the jury your actions were reasonable. How do you do that?

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As mentioned above, you cannot be committing a crime of your own, or even be seen as the initial aggressor. Most jurisdictions have a law which states (generically) that if you used words or actions that would lead a reasonable person to believe that these words or actions would evoke a belligerent response and then use force to defend yourself, you don’t have the ability to claim self-defense at trial.

After making sure you’re truly an innocent victim, your actions in defending yourself must be reasonable. Most states have case law (rulings from previous court cases), which declares that a jury must look at the facts of the case through your eyes (knowing all the defendant knows and seeing all the defendant saw). If you’re innocent, you’ll need to educate that jury as to what you knew and what you saw.

This means educating yourself and being ready to discuss with the jury why you felt your life was in danger. It’ll be overwhelmingly likely that you’ll need to testify on your own behalf. Interestingly, when George Zimmerman was exonerated in the shooting death of Trayvon Martin, he didn’t testify at trial because he cooperated (on video) with the investigating police, and this video made his case for him. Not many people could’ve pulled this off as well as Zimmerman did, and if you do decide to discuss the particulars of the case with police, an attorney by your side would be a godsend.

Education includes knowing what “disparity of force” means and how it’s dealt with in your jurisdiction. If you’re being assaulted with weapons, that’s pretty easy to establish, but what about being attacked by unarmed participants? Each case will be different, and it’ll be your job to paint a picture for the jury that showed they possessed the physical ability to cause your death or inflict serious injury.

After this is established, you’ll need to be able to educate the jury as to why you reasonably believed the attackers possessed the opportunity to immediately use their size, numbers or weapons against you. Lastly, you’ll need to convince the jury that those you defended yourself from were placing your life in imminent jeopardy. What words or actions were they using that would lead a reasonable person to draw that conclusion?

I’ve used the word “reasonable” several times already, and as this column continues, you’ll see that the criminal justice system—particularly when assessing self-defense cases—hinges on the concept of reasonableness. If your actions and your explanation to the jury as to why you used force isn’t viewed as reasonable, you’ll likely be convicted. That’s the harsh reality.

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Know Your Rights:

• Carry Law: What Is A Righteous Shooting?
• Concealed Carry and the Right to Remain Silent
• Tips For Communicating With Police After Shootings
• Concealed Carry: After the Shooting
• Q&A: Massad Ayoob On Self-Defense In 2020 America

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Complicating Factors

Getting back to the scenario (being forced to defend yourself during a riot situation), there’ll also likely be an additional complicating factor or two, those being the fact that the incident is likely to be caught on cellphone video. If that occurs, that video will be turned over almost instantly to the broadcast media. It’s very likely that your incident of self-defense will hit cable news channels before the on-scene investigation is complete. Think hours, not days. And as we’ve seen, the media (in an effort to sell airtime to advertisers) will seasonalize the event and possibly even incorrectly relate the facts. Unfair? Yes, but that’s the reality of the situation—a reality we must be prepared to deal with.

Another aspect of this riot scenario is that you might find yourself being attacked several times or by multiple individuals (as Rittenhouse was). For each attack and resultant use of force, you’ll need to be able to explain your actions for each attack and for each person you used force against. It’d be a shame to snatch defeat from the jaws of victory by getting caught up in the moment and using force where it wasn’t justified. A difficult proposition? Yes, indeed.

Simply having a gun and the requisite training to both use the gun effectively and the legal training to “do it right” isn’t enough. The armed citizen, especially one who lives in an urban area, needs to both understand the prosecutorial philosophy of the local elected district attorney, and have the ability to contact an attorney immediately following such an event. In researching the Kyle Rittenhouse case, I’ve learned a number of attorneys have volunteered to assist him, and that’s great. But if you’re the person involved, you need an attorney immediately after the event, to ensure your rights are protected. More on this in a future column.

Editor's Note: This article originally appeared in the 2020 Everday Carry issue of Gun Digest the Magazine.