The Volokh Conspiracy

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Why Did Judge Dismiss Weapons Charges Against Kyle Rittenhouse?


The Chicago Tribune (Christy Gutowski & Stacy St. Clair) reports:

A Kenosha County judge handed a huge win to Kyle Rittenhouse's defense team before closing arguments when he dismissed a misdemeanor gun charge against the teen.

Legal experts had considered the misdemeanor gun charge — which carries up to 12 months in jail — to be the easiest charge for the state to prove.

Ahead of Monday's closing arguments, Judge Bruce Schroeder ruled Wisconsin's open carry law is so confusingly written it can be interpreted to mean 17-year-olds can openly carry firearms as long as they're not short-barrel rifles. He believed the jury could only convict if prosecutors proved the barrel of Rittenhouse's rifle was less than 16 inches and has an overall length shorter than 26 inches….

The judge's decision stunned prosecutors, who argued his interpretation of the law does not make sense. Under the judge's interpretation, it would be illegal for a 17-year-old to carry brass knuckles in Wisconsin but permissible to carry a semi-automatic rifle.

That seems strange as a policy matter, and it surprised me; but my quick look at the statute suggests that the judge is likely correct:

948.60 Possession of a dangerous weapon [defined to include any firearm, as well as many other weapons] by a person under 18.

(3) … (c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593….

Subsection (3)(c) thus specifically excludes rifle and shotgun possession (as opposed to handgun possession) by under-18-year-olds, unless they are short-barreled (which is what § 941.28 deals with).

Now the exclusion of people who are "not in compliance with [§] 29.593" might complicate things. (Section 29.304 isn't relevant here, because it deals with hunting by under-16-year-olds.) Section 29.593 provides, in relevant part,

Requirement for certificate of accomplishment to obtain hunting approval.

(1) (a) Except as provided under subs. (2), (2m) and (3), and s. 29.592 (1), no person born on or after January 1, 1973, may obtain any approval authorizing hunting unless the person is issued a certificate of accomplishment under s. 29.591 [governing hunter education programs]….

One could therefore read the Wisconsin law as allowing under-18-year-olds to possess long guns only if they have an "approval authorizing hunting" based on "a certificate of accomplishment" (or based on out-of-state or military training or on hunting with a mentor, which is what the exceptions refer to). Indeed, perhaps that was the point of subsection (3)(c)—to allow rifle and shotgun possession by young hunters who have been properly trained.

But that's not really how subsection (3)(c) is framed: It asks whether someone is "in compliance with … 29.593," and 29.593 only governs "obtain[ing] any approval authorizing hunting," which Rittenhouse wasn't seeking. Section 29.593, after all, doesn't create a general duty of compliance, or a general obligation to get hunter education; it simply states the conditions for which one may "obtain any approval authorizing hunting." Say you were born in 1973 or later, and don't have a hunting license; would you say that you are "not in compliance with … 29.593"? I doubt it: I think you'd say that you just aren't covered by 29.593 until you seek an approval authorizing hunting.

The Tribune article notes a 2018 Wisconsin Legislative Council Information Memorandum that simply states, "Under Wisconsin law, with certain exceptions for hunting, military service, and target practice, a person under age 18 is generally prohibited from possessing or going armed with a firearm." But the memorandum doesn't discuss § 29.593(3)(c).

So, just based on the news account and the statutes, the judge's decision seems correct, especially given the "rule of lenity": "when there is doubt as to the meaning of a criminal statute, a court should apply the rule of lenity and interpret the statute in favor of the accused." Please let me know if I've missed anything here.