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Husband, Wife, Brothel, Knife: Another Case on Carrying a Gun When "Expecting Trouble"

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I've been researching the cases dealing with self-defense rights of people who go to a place armed, knowing that it's likely to be dangerous; hence my posts about the Wyoming Buddha/Christ/Hercules case and about the D.C. Laney race riot case. Here's another such case (which I think expresses what today would be the minority view), from 1913 Arkansas, Moore v. State:

Appellant was indicted for the crime of murder in the second degree, alleged to have been committed by shooting her husband, Arthur Moore, and upon her trial she was convicted of voluntary manslaughter and sentenced to two years' imprisonment in the penitentiary.

On the 24th of February, 1913, appellant, a negro woman, went to a house of ill repute in the segregated portion of the city of Little Rock, where she found her husband in the company of a negress named Mary Johnson. Appellant says she went to this house to persuade her husband to leave there and return home with her, but that her husband became angry, coaxed her into an alley adjoining the house, and there attacked her with a knife, telling her he would cut her, cursed her, and was about to stab her with the knife, when she drew a revolver from her bosom and fired twice, and that deceased then dropped the knife and turned to flee, running out of the alley across the street, and fell dead on the sidewalk; that she then went down the alley in the direction deceased had gone, firing two shots about the time she came out of the alley.

She further testified deceased had threatened to kill her if she came to this house for him, that he had beaten her on several occasions, and was a large and powerful man, but without regular occupation, and spent his time gambling and in places of bad repute, and had been frequently confined in jail. Appellant offered evidence tending to corroborate her in several particulars….

The evidence upon the part of the state was to the effect: That deceased was unarmed, and that defendant went to the house for the purpose of killing her husband. That when she had shot him she said: "I killed my husband here, I did; he is my husband." And when asked why she had killed him, she said: ["]I am the one that done the shooting. I'd soon not to have no man at all than have half a man." …

Appellant strenuously insists there should be a reversal because of [among other things] the court's refusal to give [the following instruction]: …

"You are instructed that if you believe from the evidence in this case that defendant saw her husband (this deceased) in the early part of the evening, on the night of the killing, in company with another woman, as she described, she had at least a legal right to interfere and separate them, and that she had a legal right to go to the home where she believed they were staying and to carry with her a weapon to defend herself against any possible attack; and, further, while in an effort to persuade her husband to return home she was attacked by him, she had a perfect right to shoot in her own defense, and should therefore be acquitted." …

[This] instruction is not the law. It is true that one may use in his necessary self-defense a weapon which he is carrying unlawfully; that is, he is not to be deprived of his right to use a weapon in his necessary defense because he is carrying it unlawfully.

But this is not the purport of the instruction, for it says: "She had a legal right to go to the home where she believed they were staying and to carry with her a weapon to defend herself against any possible attack." This instruction … permits one who is expecting trouble, and probably looking for it, to be armed and ready for it when it comes.

Of course, if the husband hadn't been threatening the wife with death or serious bodily injury, and she shot her husband just because she was angry at him for cheating on her or beating her, that would indeed be murder (or manslaughter, if she was sufficiently provoked, but I set that question aside here). But that is a factual question for a jury to determine, with a proper instruction. It also seems to me that shooting him as he's fleeing was likely not self-defense; but that's not what the court focused on in the excerpt above. (Her defense as to those shots was apparently that the first two shots would have been fatal even without the later ones, and thus "the last two shots neither contributed to nor hastened … the death of [the] deceased.")

The court here wasn't considering that question; rather, it was deciding when, as a matter of law, someone who is being threatened with death or serious injury nonetheless loses her right of self-defense. And the court's answer—which would be a minority answer in American jurisdictions today, I think—is that,

  1. when someone "who is expecting trouble" from an encounter
  2. therefore arms herself to be "ready for it when it comes,"
  3. she does indeed lose her right to self-defense,
  4. at least when she voluntarily goes to a place where that trouble is expected.

What do you think: Does that make sense? (Note that figuring out the impact of race on this 1913 Arkansas case might be complicated: The defendant was black, but presumably so was her victim, and while she was found guilty, she was sentenced to a relatively light prison term. I'm more curious about what you think the result ought to be today, setting aside any questions about the race of the parties, and omitting the shots as the husband was running away.)

Note that many courts answer the question by saying that,

  1. when someone specifically intends to provoke a threat of death or serious bodily injury from someone and
  2. therefore arms herself to be able to use that threat as a justification for killing that someone,
  3. she does indeed lose that right to self-defense.

But that wasn't the Arkansas court's position; the court did mention that the wife was "probably looking for [trouble]," but that was just given as a probability, not as something that the prosecution had proved or that the defense had conceded (as it had conceded that she was expecting trouble).

NEXT: Today in Supreme Court History: November 29, 2004

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  1. I think if things happened the way she said, aside from firing shots once he ran away, self-defense should be an acceptable defense. I also believe that it's a matter of question if things happened the way she said, and the matter should have gone to a jury to decide the facts of the case.

    1. I'd say that's what got her convicted. After she shot him the first time, he dropped the knife and fled, but she pursued him and shot him again. That second shooting wasn't self defense by any measure.

  2. From the statement attributed to the defendant in the article, it sounds to me like she had ineffective legal counsel.

    1. " sounds to me like she had ineffective legal counsel "

      A woman -- a Black woman -- in 1913, in the American South?

      1. I read a book 10-20 years ago (I forget the title) suggesting that under "Negro law" prevalent in the Jim Crow South, Black-on-Black crime was not taken very seriously or punished very severely. In contrast, Black-on-white crimes (even imaginary ones) were punished ferociously.

        1. Ascribing the relatively light sentence to the victim being Black, rather than to the strength of lawyering for the defendant (or anything else), seems a safe route in the context of 1913 Arkansas.

          Or, as conservatives see it, "the good old days."

    2. She got a pretty light sentence, and got the court of appeal to consider a self-defense claim that was likely irrelevant under any standard since she followed her husband after he dropped his knife and fled and shot him a second time while he was unarmed.

      Her lawyer had nothing to do with any of that? In a time and place where the death penalty was pretty common for someone black who killed someone, he seems to have done pretty well for his client.

      1. In a situation where the basic facts are going to be established anyway and a defendant could face life imprisonment or death, admitting the basic facts and then trying to focus the judge and jury’s attention on extenuating circumstances and mitigation factors in order to reduce the charges and/or get a lesser sentence could well be the best available strategy. It seems to have worked here.

      2. a self-defense claim that was likely irrelevant under any standard since she followed her husband after he dropped his knife and fled and shot him a second time while he was unarmed

        And while he was already dead.

        Honestly...do you EVER read thoroughly anything you're commenting on before rushing to comment?

        1. SHE says he was already dead.

          But if that were actually the case, then why shoot him?

          1. SHE says he was already dead.

            Was there anything cited to dispute that claim?

            But if that were actually the case, then why shoot him?

            Apparently you're unaware of the human propensity to do stupid/irrational things while under the influence of extreme emotions.

          2. Bingo. She wanted to make sure, and did so.

      3. Well...

        Her defense as to those shots was apparently that the first two shots would have been fatal even without the later ones, and thus "the last two shots neither contributed to nor hastened … the death of [the] deceased."

        So, the last shots neither contributed to nor hastened death—just made it certain. Given their past, seems...prudent?

        For the lawyers here, is attempted murder of someone who is already dead, still attempted murder? And how often is someone who properly and successfully used violent force in self-defense, convicted of a killing by subsequently using lethal force in continuation of the same incident?

        1. And how often is someone who properly and successfully used violent force in self-defense, convicted of a killing by subsequently using lethal force in continuation of the same incident?

          In most (perhaps all) jurisdictions continuing the use of deadly force after the threat has been effectively neutralized...and the defender knows (or should know) that there is no longer a threat...is not self-defense. One very good illustration of this is an Oklahoma City case from 2011 involving a pharmacist and an attempt by 3 individuals to rob him at gunpoint. 1 of the 3 would-be robbers waited outside the pharmacy in the getaway car, while the other 2 went inside to carry out the crime. 1 of them displayed a pistol and pointed it at the pharmacist, at which point the latter produced a pistol of his own and fired, striking the other one (without the pistol) in the head. The robber who was struck immediately fell to the ground, incapacitated (there was surveillance video showing all this), and his armed partner fled. The pharmacist would have been in the clear at that point were it not for the fact that he then opted to calmly walk past/step over the downed perp and walk out the front door after the 2 who fled. He then reentered the store, calmly walked past/over the body on the floor again, retrieved a different pistol from the cash register area, walked back to where the incapacitated perp was laying and proceeded to shoot the downed but still alive perp 5 more times, killing him.

          That pharmacist was convicted of first degree murder, not for the initial justified-as-self-defense shooting, but for the coup de grâce he chose to administer, and is currently serving a life sentence.

  3. It's hard to judge this case from a modern perspective. Police these days are expected to intervene if a husband is accused of beating his wife.

    I think the testimony that he coaxed her into an alley and attacked her with a knife should be sufficient to get a self-defense instruction. As a juror, though, I would note that she killed the best witness to what really happened. And if she had pulled the gun from her bosom inside the house of ill repute I might say she was looking for trouble and found it.

    1. "I think the testimony that he coaxed her into an alley and attacked her with a knife should be sufficient to get a self-defense instruction."

      But per the description of events in the appellate court decision:

      1. He attacked her with a knife.
      2. She shot him.
      3. He dropped the knife and fled.
      4. She chased him and shot him again.

      # 4 kills any self defense claim.

      1. Yeah. I think if she had stopped at 3, she's clear. Which is my answer to EV's query: That a person has a right to arm themselves even if they're going somewhere that they might reasonably expect trouble to occur, presuming they have the right to go there at all.

        Otherwise you give the potential attacker quite the heckler's veto.

        "Bitch knew I was going to kick her ass if she came and interfered while I was banging sluts at the whorehouse!"

        (Hilariously, autocorrect insisted the entire time I was typing it out that I actually meant "Whitehouse" instead of "whorehouse".)

        1. Sometimes it's best to just defer to autocorrect's judgement.

          1. I nearly let it stand.

      2. A self-defense instruction should be given if there is any evidence to support it. The jury gets to decide what to make of the last shots at a fleeing target.

        Can any experienced homicide type lawyers opine on how common mercy reductions from murder to manslaughter are when the killing is done in anger over an affair? I recall a case from western Massachusetts a few years ago where an angry girlfriend deliberately drove over the suspected "other woman" and killed her. The jury voted manslaughter when first degree murder was more consistent with the evidence.

      3. But he was apparently already dead after #3.

        she drew a revolver from her bosom and fired twice, and that deceased then dropped the knife and turned to flee, running out of the alley across the street, and fell dead on the sidewalk; that she then went down the alley in the direction deceased had gone, firing two shots about the time she came out of the alley.

        1. Though the timing is extremely tight, him dying a few seconds before she fired the final rounds might clear her of a murder charge -- if she hadn't been the one who killed him in the first place. But she was, and the question here is whether she was acting in self-defense when she killed him. Even though she was ultimately wrong that he was still alive, racing after him and firing those final shots still shows her state of mind.

          1. Except under modern self defense law, he was trying to escape, and if that is obvious, then the threat is no longer imminent (and thus the self defense claim can be rejected for those shots, since imminence of the threat is one of the legal requirements for the defense).

          2. Trying to murder someone who's already dead would seem to be attempted murder.

        2. Outside of someone checking his pulse, how would they determine that he was dead and not merely unconscious/dying from blood loss before she shot him again in 1913?

      4. Do we know that some self defense instruction wasn't given?
        The proposed instruction seems to me to go beyond what the law should be.

    2. At the time, many states hadn’t abolished a husband’s long-standing common-law right to beat his wife.

  4. No self-defense under EV’s three-part test, which suits the Clint Eastwood/Dirty Harry scenarios of “Go ahead, make my day”, and “Do you feel lucky today, punk”?, looking for an excuse to pull the trigger.

    1. Sure, but Harry was a cop. Completely different ruleset.

      1. Didn't he turn in his badge for at least part of most of those movies?

        1. He threw his badge in the lake at the end of Dirty Harry but at the start of Magnum Force he was at work and no mention of the badge throwing was made.

          1. It was only supposed to be one movie. They just skipped over it for the second.

          2. Real life - he hadn’t put his employer on notice of his quitting. If he went into work the next day, pretending nothing happened, he would maybe have been out the cost of a new badge. At least on TV and the movies, cops are always quitting, turning in their badges to their bosses, and then their boss keeping them for them, until they calmed down, at which time their badge (and department issued gun) are returned to them. No harm - no foul.

        2. Not having a badge didn't necessarily mean he couldn't shield behind the thin blue umbrella.

  5. If government withholds resources to maintain order of law in otherwise previously safe areas, or is implicit in the violence itself, can going to those areas become “looking for trouble”, and disable any positive self-defense claim?

    ACLED observed: “Approximately 94% of all pro-BLM demonstrations have been peaceful, with 6% involving reports of violence, clashes with police, vandalism, looting, or other destructive activity.
    In the remaining 6%, it is not clear who instigated the violent or destructive activity.” [Presence of far-right at these small number of sites where violence erupted is inferred as a cause]
    https://acleddata.com/2021/05/25/a-year-of-racial-justice-protests-key-trends-in-demonstrations-supporting-the-blm-movement/

    Wouldn’t entering any of the 3000+ locations in the US that saw 11000+ demonstrations May 2020-2021 be “almost certainly not looking for trouble” with a 94% statistical justification?

    1. I'd like to find the source of those numbers and ask him some hard questions: the above is the kind of thing CNN would say, sometimes even with a straight face.

      But regardless, I say, "looking for trouble" is perfectly rightful if the trouble would only be because someone else wants to violate your civil right to go about your business as if they weren't around. If the law says it "dis-justifies" self defense, then the law has created a terrorist's veto over your right, and that is never acceptable.

  6. Years ago I successfully prosecuted a murder case where the court gave this instruction, word for word, from State v. Hawkins, 18 Or. 476, 480, 23 P. 475, 477 (1890): “That if the jury found from the evidence, beyond a reasonable doubt, that the prisoner was then seeking to meet Ogle to provoke a quarrel with him, or with intent of having an affray with him, and a difficulty did ensue, he cannot, without some proof of a change of conduct or action, excuse the killing of Ogle upon the ground that he believed that Ogle was attempting to draw a weapon with which to assault the defendant.” One thing that confuses people is that pointing a gun is physical force, not deadly physical force (shooting someone is deadly physical force). So if you approach someone and communicate that you intend to assault them illegally (use unlawful physical force), and they respond by threatening deadly physical force (most commonly, displaying a deadly weapon), the victim's use of such physical force (not deadly physical force) is lawful self-defense, and you are not privileged to escalate with deadly physical force (shooting them would be homicide) (or physical force, for that matter).

    The difference in the Arkansas case is that there was no unlawful provocation by the woman (her intent was to persuade her husband "to leave there and return home with her," not to start a physical altercation), the victim was the first to threaten unlawful physical force. It seems to me that she does not forfeit self-defense by arming herself beforehand.

    I think I have that right; self-defense law makes my head hurt, and the law differs from state to state.

    1. There was a post here maybe last year about the right to point a gun in defense of property. Some states say that is lawful use of force, others say that is unlawful use of deadly force.

    2. From what I understand in locations that have such (not sure all of them do and fairly sure at least some don't): Use of deadly force requires a reasonable fear of grave harm or death. Self defense as a defense in court usually requires that A)you were not the one to begin the encounter (generally the idea is with the intent to provoke violence), or in some cases that you attempt to flee prior to utilizing self defense measures if you are the one to begin the encounter; and B) reasonable fear of grave harm or death.

      The general idea is escalation of use of force, from physical but not deadly, to deadly in whatever steps make sense (I'm not going to get into the semantics of it all really) is allowed by one in response to threats from the other involved. There are however mitigating circumstances which allow for escalation of use of force based on disparity of force. Someone else linked that in another post from last week but a google search should get you a decent definition of the term. However, it is clear that you can't go pick a fight and then claim self defense regardless of the other circumstances.

  7. May I suggest Eugene do a comment on Frankie and Johnnie? Based on a true story, though there are different stories about which true story. In the version of the song I grew up with, after she shot Johnnie (a rootie-toot-toot), a thousand police locked her in the dungeon and threw away the key. Ineffective counsel? Or a woman whose man done her wrong, and had to tell the world the truth?

  8. "a negro woman, went to a house of ill repute in the segregated portion of the city of Little Rock, where she found her husband in the company of a negress named Mary Johnson"

    Why they gotta mention their race? CRT really is taking over!

    1. Yeah, see how they refer to her as a negress, instead of a woman who happened to be black?

      Affinity groups were all the rage in 1913 Arkansas as well.

      That's why many people refer to CRT as neoracism.

      1. QA wasn't making the point she thought she was making. Pretty typical.

      2. Here's a white CRT professor explaining that black people are loud. I'm sure the guys in 1913 Arkansas would fully agree.

  9. Going armed is the natural state of man, regardless of the final destination or any intermediate stops.

    Of course, if we re-instituted dueling to formalize these disputes, it would be a lot clearer.

    1. Naturalistic fallacy, how does it work?

  10. The court here wasn't considering that question; rather, it was deciding when, as a matter of law, someone who is being threatened with death or serious injury nonetheless loses her right of self-defense. And the court's answer—which would be a minority answer in American jurisdictions today, I think—is that,

    when someone "who is expecting trouble" from an encounter
    therefore arms herself to be "ready for it when it comes,"
    she does indeed lose her right to self-defense,
    at least when she voluntarily goes to a place where that trouble is expected.

    I think your interpretation is wrong.

    I can't copy and paste from the decision as it appears in your link, but there was a third proffered instruction to the effect that if the second round of shots (after he dropped the knife and fled) did not contribute to his death, the second round of shots would not defeat her self defense claim.

    The court seems to say that this instruction would be in sync with the law.

    Her problem was not going armed to someplace she expected trouble.

    Her problem was that after she exercised her right to self defense, he dropped his weapon and fled and she chased him down and shot him again. He was unarmed and not attacking her when she shot him the second time. No self defense for the second round of shots.

    1. Her problem was that after she exercised her right to self defense, he dropped his weapon and fled and she chased him down and shot him again. He was unarmed and not attacking her when she shot him the second time. No self defense for the second round of shots.

      However the extract in EV's posting :

      that deceased then dropped the knife and turned to flee, running out of the alley across the street, and fell dead on the sidewalk; that she then went down the alley in the direction deceased had gone, firing two shots about the time she came out of the alley.

      states that the guy was already dead before she fired the extra shots. (Nor, fwiw, does it state that the extra shots actually hit him.)

      1. "fell dead on the sidewalk" {note, not "dying" but "dead"}
      2. "she then"
      3. "went down the alley in the direction deceased had gone, firing two shots about the time she came out of the alley"

      The extra shots might speak to her motive in firing the first shots, but if the order of events was as described, the extra shots did the guy no harm.

      1. You shoot until the threat stops, whatever that may be. If I were on the jury for this trail I would have taken that second round of shots to provide intent beyond self defense, or at the very least desecration of a dead body.

        How do we know he was dead when he fell on the sidewalk? He very may well have been dying and the second round of shots would make no real difference other than relief from suffering longer since death was inevitable anyway. BUT, I'm still stuck with the issue that she wasn't threatened at that point and the shots were not in 'defense'.

    2. Her problem was that after she exercised her right to self defense, he dropped his weapon and fled and she chased him down and shot him again.

      Well no—-according to the opinion, the defendant's position (i.e. that if she killed her husband with the first two shots, the second two didn't vitiate a self defense claim) was correct. But the court also held pretty squarely that Arkansas self defense law allowed the jury to conclude that a person who brings a weapon into a situation where they know someone might threaten violence against them is unable to claim self defense. In other words, precisely Prof. Volokh's interpretation.

  11. If being armed is evidence of "expecting" trouble and if one voluntarily putting oneself in such a position is enough to preclude the plea then that person could NEVER (well, hardly ever) claim self defense.

    Consider a spectrum . . . .

    PREPARED for trouble
    EXPECTING trouble
    - - - here's where I would draw the line - - -
    LOOKING to make trouble

    And, seems to me that's a good question for a jury.

    1. Exactly.

      "Why were you wearing a seatbelt when you were taking that sight-seeing drive? Were you expecting to be involved in a life-threatening accident?"

      "Why do you keep a fire extinguisher on board when you go fishing? Are you expecting the boat to burst into flames?"

      "Why do you pay for that expensive full-replacement homeowner's insurance policy? Are you expecting it to be destroyed?"

  12. The test which our modern woke politics is demanding for self defense (and rights in general) is easy. If you are a preferred identity then you have all the right to defend yourself. If you are not then you have absolutely no right to protect yourself from serious bodily harm or even death. In the eyes of the woke crowd you probably actually deserve it.

    1. Obtuseness or trolling, you be the judge!

      1. Or my take is just too accurate and correct for you to feel comfortable with it....

    2. Jimmy the Dane reads that report from old-timey, racist Arkansas (the 'good old days,' from the clinger perspective) and thinks 'this has just gone too far, dammit.'

      Open wider, Jimmy.

      1. So does the right to self defense (or any other right for that matter) hinge upon someone's identity? Simple question. The answer in the minds of many woke persons seems to be "yes" even though they don't want admit it.

        1. Our dwindling population of disaffected conservative bigots is among my favorite culture war casualties.

          1. Duly noted. Just don't be surprised about what is coming....

            1. What is coming is better Americans continuing to shape our national progress against the preferences of all-talk, no-count, alienated, right-wing losers.

              You get to continue to whimper as much as you like, of course, and the Volokh Conspiracy will be an eager forum for the whining clingers.

              A bonus for the lathered, disaffected rubes will be the manner in and degree to which this White, male, stale blog bothers the deans of a number of strong law schools.

              The bonus for mainstream America will be the effect this blog has on faculty hiring decisions at those better law schools.

    3. Haha!!

      'I want a wider array of legal killings.'
      'That's pretty fucked up, dude.'
      'THIS IS BECAUSE I AM WHITE!'

      Yeah, it's modern politics that got a race problem, Jimmy.

      1. Problem being I didn't say anything you tried to quote there....

        You are usually just dishonest with your attempts to reframe. Here you are just being an outright liar.

        1. You are usually just dishonest with your attempts to reframe. Here you are just being an outright liar.

          Lately he's been an outright liar more often than instances in which he's trying to be more clever about his misrepresentations.

  13. re: "shooting him as he's flying"
    Should that be "as he's fleeing"?

    1. Not a Tolkien fan?

      Fly, you fools!

      1. Unless you believe that was Gandalf imploring The Fellowship to seek out the eagles and fly to Mordor in his final moments....

  14. And when asked why she had killed him, she said: ["]I am the one that done the shooting. I'd soon not to have no man at all than have half a man." …

    Ah, isn't it wonderful how the officer always has his notebook to hand, to write down the accused's words, when she incriminates herself almost as if taking dictation from the DA.

  15. What you're really talking about here is the Rittenhouse case, and, since Rittenhouse wasn't married to any of the people he shot, I don't think this case is precisely on "all fours", as the saying goes. One has the "right", I would think, to search out one's spouse wherever they might be, even a house of ill repute, and to carry a firearm of sorts in your bosom if your spouse has a prior record of threatening you. If I were writing the laws in Wisconsin, which I'm not, citizens would not have the "right" to wander around the streets during a riot situation carrying a firearm for no more purpose than to be ready for "trouble." Both Rittenhouse and his third not victim, the one who pointed a pistol at him, were simply looking for trouble, though from opposite sides of the political fence. That should be against the law in Wisconsin, but it isn't.

    1. What you're really talking about here is the Rittenhouse case

      Well, no. What he's talking about is the argument made by the prosecution in the Rittenhouse case that he wasn't legally entitled to self-defense because he went looking for trouble and provoked the attacks on his person, with the evidence for those assertions being the fact that he was armed. What EV is doing is exploring the state...both past an present...of that notion in U.S. law.

      1. It actually required a bit more - that Rittenhouse was, essentially, egging the rioters and arsonists to attack him by pointing his gun at them provocatively. The only way that the prosecution got their Provocation jury instruction was to show a segment of the high res video (which they hadn’t given the defense until well into the trial) that purportedly showed Rittenhouse actively provoking the mob, and ultimately his latter two (or three, including Jump Kick guy - whose identity was apparently known to the prosecution, but never given to the defense) attackers. That the jury insisted on reseeing this video on their own, late in their deliberations, suggests that this may have been key to their verdict - that he may not have been acquitted on those charges if he had, say, tried to anger the mob (and his attackers/victims) by flaunting his gun at them. The judge allowed the jury instruction, because he couldn’t see it, and thus couldn’t say that it didn’t happen either, and that is what juries are for.

        1. The Arbery and Trayvon Martin case feature armed defendants behaving in a threatening manner and the defendant’s behavior leads to a dead unarmed Black male.

          1. Actually, in the Martin case, that was completely untrue. The only threat that Zimmerman posed to Martin was in helping the police determine what he was up to, and where he was staying.

            If you really do think that I am wrong, then please cite to the witness and their testimony at trial. Much of what is taken as established truth in that case is just plain wrong - for example, the “evidence” put out by (ubiquitous) family attorney Ben Crump.

        2. Yes, but it's not the "provocation" argument that EV is exploring here.

    2. There's no evidence that Rittenhouse went out looking for trouble, though. The evidence showed that he was looking to put out small fires, maybe give first aid to people who needed and, and generally help to prevent property damage and violence.

      That's not comparable to someone seeking confrontation with their spouse.

      1. Yeah, heavily armed volunteer one-man fire departments are a normal thing.

        1. Wasn't just one man.

          But in any event it's a logical response to a risk of fire and a risk of violence.

          1. He sure seemed to be working solo.

            And the risks was something he accepted when he decided to go volunteer one-man riot mitigation squad.

            It's screwed up that that risk goes onto everyone else nearby once he fires a shot, because he gets to assume everyone else is willing to use lethal force to prevent him from using lethal force.

            1. "He sure seemed to be working solo."

              I thought the story was he was with a group until he went out to put out Rosenbaum's dumpster/gas station fire?

              "And the risks was something he accepted ..."

              Indeed so. While we are on the subject of accepting risks, did the rioters accept any risk when they decided to riot? Did Rosenbaum accept any risk when he decided to chase down an armed man who was running away as fast as he could?

              1. Yes, they absolutely agreed to the risk inherent in participating in the affray of a riot. I'm very pleased that we're all able to come together here on the VC about this.

                I dare say that under this principle of "risk acceptance" most of the rioters got off quite light!

            2. > the risks was something he accepted

              Sure, and getting shot was a risk the arsonists accepted when they participated in an riot.

              I can live with this interpretation.

              1. The dead were all arsonists now?

            3. "He sure seemed to be working solo."

              On what planet?

              He was not "working solo". This isn't even controversial.

              You have strong opinions for someone unfamiliar with the basic facts of the case.

              1. He was on his own. He was not part of a team. That he was completely alone at the time of the shooting is actually a rather uncontroversial fact.

                1. How quickly you've switched from "he was working alone" to "at the time of the shooting, he was alone".

                  As if the entire rest of the day - where we was working as part of a team - suddenly disappears.

    3. "If I were writing the laws in Wisconsin, which I'm not, citizens would not have the "right" to wander around the streets during a riot situation carrying a firearm for no more purpose than to be ready for "trouble.""

      That's actually pretty much the case when you do want a firearm handy. Can you imagine...living or working in Kenosha at the time? Your family member phones for help, but there's a riot going on, and the cops and EMTs aren't responding. So, you head out to help out, but just in case you're intercepted in route, you carry a gun for self defense.

      But your proposed law would eliminate their right to carry a gun, in exactly the such a type of dangerous situation.

      1. So, you head out to help out, but just in case you're intercepted in route, you carry a gun for self defense.

        You say that as if you think it is self-evident and logical. Among all the unarmed people in Kenosha during that interval of rioting, how many were, "intercepted in route?" Like most of the gun advocates on this blog, you cherish paranoid fantasies principally for their value as gun justifications. I doubt if you thought it through for a moment, and took the gun controversy out of it, you would even believe what you say.

        1. How many armored car drivers are robbed on any given day? How many police? How often does your monoxide detector go off? How often do your airbags deploy?

          The stakes matter, not just the odds. You are welcome to be unarmed as often as you like, but you don't get to make that decision for Sally as she walks home late at night.

          1. I'm fine with Sally being armed, so long as she knows that if I am unarmed, and she shoots me, she will bear a burden of proof to show why she should not be convicted. That way, I can protect myself by practicing my usual unarmed, unaggressive conduct.

            If the law licenses Sally to shoot any time she subjectively concludes she is in danger, that is different. If she is one of the gun-advocate types who cherish paranoid fantasies as welcome justifications for gun carrying, nothing I can do will make me safe from her.

            1. "If the law licenses Sally to shoot any time she subjectively concludes she is in danger, that is different."

              Well, I've got good news for you! The law doesn't, and never has, allowed that!

  16. If Professor Volokh intends to continue in this vein, I hope he will will offer some early 20th century cases where a person shot to death was unarmed. My impression from my early youth is that killing someone who did not carry a weapon was previously a big deal on the side of convicting a killer armed with a gun. Perhaps my memory is faulty.

    Remarkably, with the Kenosha case as background, where none of the people killed was armed, almost nothing in the parade of examples defending Rittenhouse seems to speak to that distinction—armed vs. unarmed. Instead we get all sorts of quasi-justifications to assign guilt to the unarmed, by turning not-really-arms into awesome deadly counterforce against someone carrying an AR-style semi-automatic weapon.

    To anticipate trouble and forearm myself against it, I don't count shod feet and carried skateboards as effective counter-force against an assailant with an AR-style rifle. If you think otherwise, please explain why the AR-carrying guy should not be held to a standard of defending himself by threat of shooting, and thus deliver the more-peaceful aid to civil order which gun advocates boast about so often. When that promise breaks down, why isn't the promise maker the one held to account?

    Or, to put it another way, when an expectation of order which pro-gun advocates tout as justification breaks down, why should it always be a person they kill who pays the whole price? If there is an unavoidable price in blood to be paid for a libertarian benefit of keeping folks armed in public, why aren't the people who want to arm themselves first in line to pay that price? They are the ones who say it is a public benefit, and worth the price. Others oppose those views. It seems worse than peculiar to establish a legal regime that says it is not only justifiable as a cost of the public benefit to kill unarmed people, but it is also legally necessary to deliver blanket protection to the killers. How about instead a legal regime that at least puts the burden of proof of self-defense on the gun carrying killer when his victim was unarmed?

    1. "Or, to put it another way, when an expectation of order which pro-gun advocates tout as justification breaks down, why should it always be a person they kill who pays the whole price?"

      That would seem to depend on the facts of the situation.

      Try hitting a policeman - or National Guardsman - with a skateboard or trying to take his gun - your shooting will be considered justified.

      Does a "civilian" have fewer rights?

    2. Perhaps my memory is faulty.

      Your memory is just the tip of the iceberg that is all the things faulty about you.

    3. If you think otherwise, please explain why the AR-carrying guy should not be held to a standard of defending himself by threat of shooting, and thus deliver the more-peaceful aid to civil order which gun advocates boast about so often. When that promise breaks down, why isn't the promise maker the one held to account?

      Do 2A enthusiasts promise that an armed citizenry will always and necessarily deter violence by bad people ? I think you are riddling your own straw man with bullets, Lathrop old chum.

      when an expectation of order which pro-gun advocates tout as justification breaks down, why should it always be a person they kill who pays the whole price?

      We seem to have one of those self driving, agent-free, breakdowns of order here; much like that insane SUV in Waukesha that took it into its head, if the media are to be believed, to zizag along to max out the casualties. Naughty naughty SUV.

      Nah, the point is no armed v unarmed, it's good guys v bad guys. And those who are breaking down the order, are the bad guys. With an armed citizenry, on average, the bad guys lose more often than would otherwise be the case.

    4. " I don't count shod feet and carried skateboards as effective counter-force against an assailant with an AR-style rifle. "

      Disparity of force. Again, as before is the explanation you seek in why that standard of defense counts.

      The rest of your paragraph smacks of the same thought experiment you played in another post here so I'm not interested in playing your games.

      1. And as a secondary the problem is you've already decided that the ONLY assailant is the one with a gun. You seem to dismiss the sequence of events that not a single person was shot until/unless that person first assailed themselves upon the one holding the gun. Regardless; possession of a weapon does not remove the right of self defense, nor does it serve as the method by which one can claim that they went looking for trouble.

        Else, everyone who has hands and feed would be bereft of that option. Just look at the FBI stats for how many people are killed on a yearly basis with hands and feet.

      2. " I don't count shod feet and carried skateboards as effective counter-force against an assailant with an AR-style rifle. "

        Disparity of force. Again, as before is the explanation you seek in why that standard of defense counts.

        Well, that and the fact that there was no "assailant with an AR-style rifle" involved.

    5. If there is an unavoidable price in blood to be paid for a libertarian benefit of keeping folks armed in public, why aren't the people who want to arm themselves first in line to pay that price?

      So you're saying that Grosskreutz should have been killed?

    6. "I don't count shod feet and carried skateboards as effective counter-force against an assailant with an AR-style rifle."

      4% of homicides are committed by "hands, fists, feet, etc." 11% are committed with other weapons (blunt objects, poison, etc.). "Shod feet and skateboards" can be used as deadly weapons.

      https://www.criminalattorneycolumbus.com/which-weapons-are-most-commonly-used-for-homicides/

      1. TTT, join the gun advocacy illogic parade.

        One guy has an AR-15. His would-be assailant has shod feet. The probable outcome of violence between them is what?

        Or put that aside. The probability that the shod-foot guy will initiate violence against the AR guy is what? How about the opposite? The AR guy stands to win how many times out of 100? Who is incentivized to avoid violence? Who is incentivized to initiate violence?

        A problem here is advocacy from pro-gun commenters that the law be structured around least-likely scenarios. How is it even possible to do that without biasing policy in favor of gun guys? Why do that?

        1. One guy has an AR-15. His would-be assailant has shod feet. The probable outcome of violence between them is what?

          That depends on the nature of the violence. Does the guy with the AR-15 use it do defend himself? If so, the most probably outcomes range from shod feet guy taking a dirt nap to what happened in the Rittenhouse case (shod feet guy not actually getting shot and using that stroke of luck to rethink the wisdom of his attack and retreat). If the guy with the AR-15 does not employ his weapon to defend himself the likely outcome...assuming the kicking guy is reasonably adept at delivering that attempted kick to AR-guy's melon...is potentially severe injury to AR guy, possibly even his death.

          Just because you appear to have received multiple blows to the head and survived doesn't mean that everyone should be expected to risk that...or accept what appears to have happened to you as a result.

        2. A rifle is a stand off weapon. Let me get inside of three feet and I can show you how effective "shod feet" or a "skateboard" can be against a rifle. The first two that Rittenhouse shot, were in physical contact with him. One was trying to grab his rifle and the other was hitting him with the skateboard. The third pulled a pistol on Rittenhouse before he was shot.

          1. jimc5499, letting you get inside three feet is an example of firearms management so incompetent that the person doing it should be disqualified from carrying a gun in public. As is being in a place with a firearm under conditions where you cannot reasonably assure that no one hostile to you can get within three feet.

            By the way, Rosenbaum was not in contact with Rittenhouse, as the high resolution video showed—which is probably why the Rittenhouse defense team tried to have that video barred. Rittenhouse had sworn otherwise. Obviously, if improved resolution had confirmed the Rittenhouse story, the defense team would not have objected.

            1. jimc5499, letting you get inside three feet is an example of firearms management so incompetent that the person doing it should be disqualified from carrying a gun in public

              So you're arguing that you should shoot anyone who is in the process if getting that close to you in order to prevent it?

              As is being in a place with a firearm under conditions where you cannot reasonably assure that no one hostile to you can get within three feet.

              So, any cop doing his/her job.

              By the way, Rosenbaum was not in contact with Rittenhouse, as the high resolution video showed—which is probably why the Rittenhouse defense team tried to have that video barred.

              How many times are you going to tell that same lie in one day?

              1. Apparently he was close enough.
                "A forensic pathologist says the first man killed by Kyle Rittenhouse during a night of turbulent protests in Kenosha was shot at close range of just a few feet and had soot injuries that could indicate he had his hand over the barrel of Rittenhouse’s gun."

                https://www.usnews.com/news/us/articles/2021-11-08/man-rittenhouse-shot-says-he-didnt-mean-to-point-own-gun

                1. jimc5499, apparently close enough for what?

                  1. Ah, this is where Lathrop pretends that he has be muted so that he can continue to spout the same bullshit that I've refuted multiple times, so he can also pretend that he isn't aware that it's bullshit.

        3. The probable outcome isn't the deciding factor, neither is probability because as is found in this case that's not how people always work. You're pushing logic on one end when the example defies the very logic you're trying to use.

          Nor would the opposite hold true which is closely aligned with the blood in the streets argument, based on the number of existing AR's in the US vs the number of times a long gun of any kind is used to kill.

          The problem you have is the advocacy that anyone 'armed' with something you consider 'more deadly' is there for bereft of any possible argument of self defense simply because they carry something one subjectively defines as 'more deadly'. Elsewise we must create a list which pits every item in existence against any other just in case someone uses it as a weapon, regardless of how in effective it might be.

          You're still stuck on KR being the only aggressor (which the law says otherwise) and being wrong because he had a gun (which again the law also says otherwise).

          The law also allows you to advocate for a change in laws but asking 'why' is really a pointless exercise because the answer is 'that's what the law allows.'

          You say "...join the gun advocacy illogic parade." while parading around your illogic in some weird attempt to make it seem like yours is the only valid logic when it's not.

          1. 3ducerist: The probable outcome isn't the deciding factor, neither is probability because as is found in this case that's not how people always work. You're pushing logic on one end when the example defies the very logic you're trying to use.

            I am not trying to re-litigate the Rittenhouse case. I have already said that had I been on the jury, I would have voted to acquit.

            I am trying to make a more general point, about where the burden of proof should lie in cases where armed people kill unarmed others. I insist that it makes no sense in the general case to posit the least likely conduct as basis for placing the burden of proof.

            Your argument seems straightforward, if unsubtle. You want the gun guy to win, all the time, apparently. Or at least as much of the time as a society lax about firearms accountability can accommodate, and get away with politically for now. Long term, I doubt that is a wise choice to protect gun rights.

            1. "You want the gun guy to win, all the time, apparently."

              Huh? The gun guys lost in Georgia, and rightly so.

              1. Huh? The gun guys lost in Georgia, and rightly so.

                A gun guy lost (a bicep) in Kenosha too.

        4. "The probability that the shod-foot guy will initiate violence against the AR guy is what?"

          In the Rittenhouse case, it was 100%.

          "Who is incentivized to avoid violence? Who is incentivized to initiate violence?"

          And, in the Rittenhouse case, who tried to avoid violence and who initiated it? Rittenhouse was running from all the people he shot.

          1. TTT, how do you know any of that? No one ever had to prove it.

            Rosenbaum never committed any violence against Rittenhouse. Never touched him. Never grabbed his gun. Rittenhouse was running. Then he wasn't. He slowed gradually, then stopped, pivoted toward Rosenbaum, who was about 5 feet away, and shot him, all in one instant, whereupon Rosenbaum collapsed forward, without touching Rittenhouse or his gun.

            To be acquitted, all Rittenhouse had to prove was that he felt fearful. But Rittenhouse also chose to lie. He did that, when he said Rosenbaum grabbed his gun. That is why Rittenhouse's defense team was so upset when the higher resolution video was introduced, and tried to have it barred. It showed Rittenhouse had lied about the gun grabbing.

            I have tried to ask a question about something that comes before the facts of any case—who ought to have the burden of proof? I argue that because of the extreme unlikelihood that a person armed with a gun is in actual peril from someone who is unarmed, that is a general case where the armed person ought to bear the burden of proof. And, "I felt fearful," should not satisfy that burden.

            Why should you armed be so fearful of anyone who is not armed that your subjective terror gives you license to kill? If possession of a firearm is not sufficient to allay your fears about unarmed others, why should you even be allowed a firearm? Your very fear suggests disqualifying incompetence with firearms management—an incompetence which Rittenhouse demonstrated.

            Of course, every killer who shoots an unarmed person ought to get a chance to meet a reasonable burden of proof, and be acquitted on that basis. That did not happen in the Rittenhouse case, because the law did not require it. The law needs change.

            1. "Rosenbaum never committed any violence against Rittenhouse"

              I wanna make sure I understand. If I tell a woman I'm going to rape her, and then chase her halfway through Central Park, none of that is violence? It's not attempted rape?

              I find your framing ... unpersuasive.

            2. Rosenbaum never committed any violence against Rittenhouse. Never touched him. Never grabbed his gun. Rittenhouse was running. Then he wasn't. He slowed gradually, then stopped, pivoted toward Rosenbaum, who was about 5 feet away, and shot him, all in one instant, whereupon Rosenbaum collapsed forward, without touching Rittenhouse or his gun.

              Christ in a sidecar...you even suck at just making crap up.

            3. Holy mother of pearl...and you get even worse at it...

              To be acquitted, all Rittenhouse had to prove was that he felt fearful.

              You are, of course, completely full of shit. The standard is not "felt fearful". It is that he not only believed that he was in danger of death or severe bodily injury, but that such a belief was also a reasonable given the information available to him.

              But Rittenhouse also chose to lie. He did that, when he said Rosenbaum grabbed his gun.

              You are, of course, completely full of shit again. Rittenhouse's assertion was supported by the prosecution's own witness, McGinniss. It was also consistent with the finding of gunpowder residue on Rosenbaum's hand. There is no evidence the Rittenhouse lied about it, despite your next exercise in pure bullshit:

              That is why Rittenhouse's defense team was so upset when the higher resolution video was introduced, and tried to have it barred. It showed Rittenhouse had lied about the gun grabbing.

              There was no such attempt to get any video of the moment in question barred, nor was there any video that showed that Rittenhouse lied about it. YOU on the other hand appear to be a bottomless pit of bullshit on this subject (like so many others).

              I have tried to ask a question about something that comes before the facts of any case—who ought to have the burden of proof?

              Those accusing him of a crime, just as in any other case.

              the extreme unlikelihood that a person armed with a gun is in actual peril from someone who is unarmed

              In spite of all of the clear evidence and witness testimony that the defendant was in fact in actual peril by those who not only threatened to kill him, but pursued and physically assaulted him...two of whom were NOT "unarmed" (one had a blunt instrument that he used to strike Rittenhouse with repeatedly, and the other a loaded firearm that he pointed at Rittenhouse while approaching him aggressively). You really have absolutely no grip on reality.

              And, "I felt fearful," should not satisfy that burden.

              And, as you already know, it doesn't...you dishonest sack of shit.

              1. “ That is why Rittenhouse's defense team was so upset when the higher resolution video was introduced, and tried to have it barred. It showed Rittenhouse had lied about the gun grabbing.”

                They were upset because the prosecution sprung it on them after they had rested their case. The prosecution appears to have had the high res version all along, and instead of giving the defense that version, down converted it to a lower res version that they gave the defense. Then, after the defense had rested their case, brought out the high res version to try to show that Rittenhouse had waved his gun around in order to provoke the approaching mob to attack him and let him shoot them. None of that was visible in the low res version, and only possibly visible in the high res version (the judge couldn’t see it, but couldn’t see the opposite either). The defense never had a chance to fully analyze that version, and possibly rebut it. But it was enough to get what they wanted - the Provocation jury instruction, giving the jury a way out of acquitting Rittenhouse, despite the overwhelming evidence in his favor (and, of course, those supporting the rioters, including the press, President Biden, AG Garland, etc, tried to then intimidate the jury into doing just that).

                All in all, one of the most egregious examples of prosecutorial misconduct in a prominent case in recent memory. Add to that the prosecution mentioning Rittenhouse’s silence as suggestive of guilt, and bringing up stuff that the judge had deemed closed to them.

                1. Bruce, the provenance of that video really should have figured more in the testimony, it seems to me. I can see why folks backing Rittenhouse would be concerned. Based on the hi-res version I found online, I have questions both ways. For instance, at one key point, right after shooting Rosenbaum, Rittenhouse took a little loop around some parked cars, and then headed back toward where Rosenbaum must have been lying on the ground—at which point Rittenhouse goes off the left edge of the frame. Thus, no one can see what he did after that moment.

                  I think that disappearance is most likely a result of a deliberate cropping decision, because the video is said to be drone footage, and previously the field to the left of the shooting location had been visible in the wider, un-cropped frame. It was apparently cropped to deliver a close-up. If the prosecution edited that missing part out on purpose, I want to know why. I also want to know if any party except the prosecution ever had possession and an opportunity to edit. Why Rittenhouse would return immediately to Rosenbaum (dead or alive?) is a question which could have answers in either direction. I am hoping that some future litigation might answer video provenance questions, if that information is not already available and I just didn't know it.

                  About imputed treachery of the prosecution in giving the defense a low-res video, I do have something to add. I work professionally with digital images, and frequently transfer them from one platform to another on behalf of clients, or to facilitate image size changes, or to convenience other editing processes. The transfer process is always fraught, for me, accustomed to it as I am.

                  User interfaces among software platforms are not standardized at all. The original sources of digital images come in a range of formats and resolutions, with variables depending on both the software, and the physical design of the recording instrument. Values for both variables are often unavailable to the person doing the transfer—who gets the job willy-nilly of accommodating the old format to a new one which is also probably unknown in its details. Digital color is a file-dependent variable, and different file formats and different display equipment feature their own varying color gamuts—so transfer of a file which skirts the edge of one color gamut in its native regime may lose notable detail when displayed by equipment featuring a different gamut in the target regime. The person doing the transfer may be prompted to choose a color gamut for the file, without having a clue what to think about (hint: the probably unknown color gamut capability of the receiving equipment, with a further decision about some hocus-pocus called rendering intent—used to instruct the transfer process how to deal with gamut incompatibilities where they occur). Resolution and digital image dimensions are interdependent variables, about which a non-expert person doing a transfer must make decisions, almost always without a clue what to expect—while being constrained with usually unknown limitations in the bandwidth of the transfer process—which may in some systems be imposed by default without appropriate feedback to alert anyone.

                  My experience has been that given all the variables, it is almost never the case* that a transferred file appears with the same resolution and at the same display size as the source file from which it was derived—and the difference is almost always in the direction of lower resolution, plus loss of detail for other reasons.

                  Of course none of that could rule out prosecutorial misconduct, but the overwhelming likelihood would be that the file got changed in the transfer process, and nobody even knew it happened until a later comparison showed a difference. At that point, even reconstructing how the difference occurred would probably be a task to daunt an expert.

                  *If the file is transferred by a non-imaging expert, like for instance any person in a law office, the chance of an optimized transfer result is monkeys with typewriters.

                  1. Bruce, the provenance of that video really should have figured more in the testimony, it seems to me.

                    What seems to you is of no importance given your continued lying about what the video shows as well as your lie about the defense trying to suppress it, let alone trying to suppress it because it showed that "Rittenhouse lied" about Rosenbaum grabbing the rifle barrel.

                    My experience has been that given all the variables, it is almost never the case* that a transferred file appears with the same resolution and at the same display size as the source file from which it was derived

                    Your alleged "experience" is nullified by your obvious ignorance. A direct copy of a file onto a storage medium (say, a CD, a thumb drive, etc), which is how the transfer of digital evidence SHOULD be handled, results in precisely NO change to the content of the file. The problem here is that the evidence transfer was done in a haphazard and amateurish manner utilizing email apps on smart phones rather than a method that performs no processing on the file being transferred. I find it difficult to believe that the DA's office...even in a city as non-metropolitan as Kenosha...has nobody on staff with any IT knowledge who they should be consulting with on how to properly handle digital evidence.

                    and nobody even knew it happened until a later comparison showed a difference

                    Except, as I've already explained, the app that they prosecution claims they used for the transfer most definitely informs the user that downgrading of the attachment's quality is taking place.

                2. The prosecution appears to have had the high res version all along, and instead of giving the defense that version, down converted it to a lower res version that they gave the defense.

                  To be completely fair...not that the prosecution deserves any fairness given all of their willful misconduct...their excuse that the video quality was downgraded as a result of it being emailed from an iPhone to an Android phone is quite plausible, since the iOS email app does in fact do that with video attachments. The problems with that, however, are:

                  1) The stupidity of using a phone app to transfer evidence, and
                  2) The iOS app in question informs the user that the video attachment's quality is being downgraded for the transfer, so pleading ignorance that it happened is less plausible...unless the individual doing the transfer was so careless that s/he just didn't bother to pay attention to the app's feedback regarding the transfer.

        5. I love the fact that you have to make up these bullshit scenarios whole cloth because the reality of what happened, which offended you so, won't lead people to your pet conclusion.

          It's entertaining to watch.

          1. It's entertaining to watch.

            In a dumbassed-kids-eating-Tide-Pods sort of way.

            1. I laughed at this, out loud, full gut and all.

            2. Yeah, it's definitely a "laughing at" not "laughing with" sort of thing.

    7. Instead we get all sorts of quasi-justifications to assign guilt to the unarmed

      Nobody is assigning guilt to the "unarmed". We're assigning guilt to the aggressors who were committing physical assaults on someone who had done nothing to them (and hadn't even threatened to do anything to them) or anyone else...especially the one who was threatening to kill the target of his aggression (among others). But you know that.

      by turning not-really-arms into awesome deadly counterforce against someone carrying an AR-style semi-automatic weapon.

      That's the problem of those who thought it was a good idea to physically assault "someone carrying an AR-style semi-automatic weapon"...including the one who was also armed with a firearm.

      1. > But you know that.

        Objection, assumes facts not in evidence.

        1. Objection, assumes facts not in evidence.

          Lathrop is an idiot in many ways, to be sure. But if you've been reading his clap-trap for years...like many of us have...you know that he's more than eager to flat-out lie by repeatedly making claims that have already been thoroughly and just as repeatedly debunked.

          1. Overruled, then... 😉

            1. I promise to always try to use this power only for good.

              1. Very good, carry on.

    8. The standard for self defense is not whether or not the attackers were armed with deadly weapons, but rather whether they reasonably posed an imminent threat of death or great bodily injury to an innocent party (including, but not limited to the defendant). The first attacker, Rosenbaum, was completely disarmed, but became an imminent threat of death or great bodily injury, when he grabbed Rittenhouse’s gun, presumably trying to take it away and use it on him. The second deceased, Huber, helped knock him down, as he tried to flee to safety, with his skate board. He hit Rittenhouse with the skateboard behind the head or on the neck, which, contrary to your suggestion, could have caused death or great bodily injury (which typically includes broken bones). If Huber had hit him elsewhere, then the risk would likely have been much less. If he had broken the skull there, he might have killed Rittenhouse (this is the preferred execution site using a handgun), and if the neck, turned him into a paraplegic. But that wasn’t the only threat posed by Huber. His fairly obvious intent was to knock Kyle down and keep him from escaping the others of similar intent who were running towards the confrontation. Maybe the just wanted to hold him until the police arrived (idiotic assertion, since Rittenhouse was running towards the police at the time), but the threat was that the rapidly approaching mob could, and would, do what Huber maybe couldn’t have done on his own - kill or gravely harm Rittenhouse. This was bolstered by Drop Kick guy rushing in, and kicking him in the head, when he was on the ground.

      Everything is circumstantial. We all live around moving cars and trucks every day. They don’t really threaten us, as long as we take basic precautions, and aren’t brain dead around them. Deadly weapon? Can be, but usually not. But last week, that one guy turned his SUV into a deadly weapon, killed a bunch of people with it, and injured many more. There are a lot of times that I would prefer his SUV to most firearms, in a self defense situation. But I don’t panic or overreact when I see someone in a vehicle, or with a firearm (though I might want to ask him what he is carrying, if I don’t recognize it).

      1. What Lathrop and others making similarly braindead arguments fail to grasp is that a firearm is only an advantage in a physical conflict if you actually USE it. It's not a magic talisman that somehow renders you impervious to injury from lesser weapons simply because you're in possession of it. Ditto the prosecution's idiotic, "You had an AR-15 and he only had a pistol. How was he a threat to you?" question posed to Rittenhouse on cross.

        1. "You had an AR-15 and he only had a pistol. How was he a threat to you?"
          At 100 ft. he's not much of a threat. At 15 ft. he's a substantial threat. When I was being trained as an armed guard, my instructor told me that if a person takes a "martial arts" stance, consider it the same as him pulling a knife and defend accordingly. It is all about the perception of the threat.

          1. At 100 ft. he's not much of a threat.

            That depends on the quality of the weapon+ammo and how skilled the bearer is. See the case of the Garland, TX PD cop with his service sidearm vs the would-be jihadists armed with semi-auto AK-47 variants at distances not dissimilar to that.

            1. I'll give you that. One thing though your example was a cop. With few exceptions most police officers are not very good shots. He was an exception. On the other hand jihadists are rarely good shots.

              1. One thing though your example was a cop. With few exceptions most police officers are not very good shots. He was an exception.

                Quite true...hence my "that depends" observation, especially the "how skilled the bearer is" part.

                1. We agree on that. 🙂

        2. At what distance would an "unarmed" attacker pose a threat? At what distance would you be justified in shooting? What if the attacker had a knife? What distance then? We have hours to sit here and debate this. The person in the situation may only have a few seconds.

          In certain situations the "unarmed" attacker has the advantage over the armed defender. Every one of the attackers in Rittenhouse's situation had a criminal history. It shows a tendency to not care about the legality of their actions. They were betting that Rittenhouse wouldn't shoot. In my opinion six out of ten times they win that bet. Most people consider a weapon as a deterrent, rarely do they plan on using it. Rittenhouse let them get too close and almost paid for it. On the other hand, what if he had fired earlier, would the Jury have still acquitted him?

          1. Teuller says 21 feet, for the knife. 😀

            1. You need to watch a Mythbusters episode. Probably the best simulation I've ever seen on this situation.

    9. But keep in mind the prosecutor can factor in the fact the instigator was a suicidal pedo looking to commit suicide by cop when considering charges. Train conductors aren’t prosecuted when suicidal people jump in front of trains which is not uncommon in America.

    10. “Or, to put it another way, when an expectation of order which pro-gun advocates tout as justification breaks down, why should it always be a person they kill who pays the whole price?”

      It isn’t. It is the (non innocent) party who puts the innocent party in reasonable fear of imminent death or grave bodily injury. Being armed has nothing to do with it (though being armed, in some cases, decreases the likelihood that the other party can so threaten you).

      The key, almost always, is to look at who is actually threatening (and often attacking) whom. The attacker almost never legally gets to claim self defense. In Kenosha that fatal night, Rosenbaum, Huber, Lefty, and Drop Kick guy were the aggressors. They couldn’t legally claim self defense. The only real question was whether they were reasonably threatening Rittenhouse with imminent death or great bodily injury, when met with deadly force. And remember, with the latter three, they were part of a mob, trying to catch and hurt, if not kill, Rittenhouse, and thus the apparently likely actions of the mob would be attributed to them.

      There were others visibly armed with AR-15s for self defense that night in Kenosha, who were not threatened by the mob. But they very likely avoided conflict by looking like they could meet and overwhelm any violence intended against them. Several at least were comfortably wearing ballistic plate, and the way they were carrying their AR-15s showed long experience - they were mostly ex military with combat experience. Rittenhouse was very likely picked out because he looked young and inexperienced.

      1. Btw, it’s dumb for people to say Rittenhouse’s gun saved him—his gun attracted the criminal vagrants to him. Rittenhouse at 17 had no business being there and obviously he’s an idiot…but he obviously didn’t murder anyone.

    11. Can you cite a requirement in law anywhere in the US that provides a requirement that the aggressor be armed if the defender is armed, or that the aggressor be armed in a similar manner as the defender as a caveat to allow the defender to claim self defense?

  17. How did she get into the brothel? Was she allowed in or did she push her way in past the...doorkeeper or whoever?

    Would this be relevant? I don't know, but I certainly am curious.

    1. I suppose that if this was in a poor part of town, it would be a whorehouse and not a brothel. Brothels are for the rich.

      1. No judge was going to write "whorehouse" in an opinion. Its actually "house of ill repute" in the excerpt, also a more polite form.

    2. It's possible that service would be rendered to anyone who came in and paid so it's unlikely there was anyone at the door to keep her out, It's also possible that they were used to wives coming to get their husbands and allowed it, or did not otherwise provide for measures to prevent it.

      I must admit, you have made me curious as well.

  18. What if one goes armed everywhere they legally can because there is always an expectation of trouble? Are they then always precluded from self defense?

  19. Two years in prison. Self defense or not, an incredibly light sentence then or now.

    1. I agree with your basic point, but it is not, in fact, a light sentence for someone with a valid self defense claim.

  20. In looking at the issue of going armed to a place you expect trouble, does one have to ask the question of should a person go in the first place. Sometime you cannot avoid going, but if you can should that play into the question of self-defense?

    This lady was attempting to get get her husband back, was it worth the trouble? My parents, now deceased, would have never allowed me to go into a situation that Kyle Rittenhouse found himself in. Were, I a minor and likely even after that they would have told me I had no business being in that place.

    1. Which is still as irrelevant a question WRT the right to self-defense as it ever was.

    2. “ In looking at the issue of going armed to a place you expect trouble, does one have to ask the question of should a person go in the first place. Sometime you cannot avoid going, but if you can should that play into the question of self-defense?”

      You are, essentially, asking whether mobs should be allowed their heckler’s veto, and that may be part of why the supporters of recent mob violence (including many Dem politicians) have reacted so negatively to the Rittenhouse verdict. When Dem politicians order their police to stand down, and let violent rioters riot and burn down their communities, all that is left is armed self defense, or submission to the increasingly violent mobs. In most of this country, armed self defense is still a legal response to violent mob rule. Taking away the right of armed self defense gives the mobs (and the politicians supporting them) what they want - control over the streets. They would then control who could go where and when, by just violently rioting whenever they don’t get their way. Will the rest of us stand for that?

      1. I am not looking at this in terms of the big picture, but rather at the individual level. There were individuals in Kenosha that may well have known how to handle the situation. I don't think Kyle Rittenhouse was ready age wise or mentally to handle the situation he found himself in. My recollection of the testimony was that there was an ex-marine who testified that he saw Rosenbaum, understood he was acting irrationally but did not see him as a threat. Rittenhouse didn't understand this. I suspect that Rosenbaum also saw Rittenhouse as ill prepared and so challenged him, resulting in his death.

        None of this is to say that the jury was wrong, but rather to say that when people go into situation they cannot handle and think that being armed is a solution to not being prepared the situation can end tragically. Kyle Rittenhouse may well have been killed himself and as he was armed, his killer might have also claimed self defense.

        1. I don't think Kyle Rittenhouse was ready age wise or mentally to handle the situation he found himself in.

          And yet he handled the situation he ultimately found himself in remarkably well...and arguably better than most people twice his age would have.

          My recollection of the testimony was that there was an ex-marine who testified that he saw Rosenbaum, understood he was acting irrationally but did not see him as a threat. Rittenhouse didn't understand this.

          That makes absolutely no sense at all. Rosenbaum's actions proved that he most certainly was a threat, so there was no reality to the contrary for Rittenhouse to "understand". Rosenbaum's assessment of Rittenhouse as an easy target for his aggression turned out to be a commentary on Rosenbaum's poor judgement and decision-making, not on Rittenhouse's.

          Kyle Rittenhouse may well have been killed himself and as he was armed, his killer might have also claimed self defense.

          His killer could have also claimed to be the reincarnation of Richard the Lionheart, but that also wouldn't be a plausible claim. You aren't legally entitled to self-defense when attacking someone simply because they're armed.

          1. You aren't legally entitled to self-defense when attacking someone simply because they're armed.

            No, but a Rittenhouse-ish case, it is possible that someone who saw him shoot one of the rioters might not have seen the whole scenario and might reasonably have interpreted what he saw as Rittenhouse as an aggressive shooter not a self defender.

            In such a case if the someone had perceived Rittenhouse as an imminent threat to someone else and had then shot Rittenhouse , he (the someone) might well have had a reasonable claim to self defense.

            In other words, it is conceivable that A might shoot B, with a reasonable claim to self defense, and at the same time C might shoot A, also with a reasonable claim to self defense, if C has not seen everything that constituted A's reasonable reason to shoot.

            However since in practice this never happens, we don't need to worry about the theoretical possibility of circular self defense firing squads.

            1. No, but a Rittenhouse-ish case, it is possible that someone who saw him shoot one of the rioters might not have seen the whole scenario and might reasonably have interpreted what he saw as Rittenhouse as an aggressive shooter not a self defender.

              I don't know about a Rittenhouse-"ish" case, but in the actual Rittenhouse case that interpretation would not be at all reasonable for those who actually assaulted him as he was running toward the police line to turn himself in. In the video leading up to that Grosskreutz and the other ran behind him the whole way as he did nothing at all even remotely threatening to anyone, in spite of being surrounded by potential targets. Grosskreutz could even be heard on one of the videos chatting with Rittenhouse as he ran alongside him during that turn-in attempt. It was clear that Grosskreutz did not consider him to by any sort of threat, and did not take the opportunity to approach Rittenhouse aggressively...with pistol drawn and pointing at him...until Rittenhouse went down onto the ground and was set upon by the other two assholes.

              And yet he handled the situation he ultimately found himself in remarkably well...

              Indeed. It's surprising that this point is overlooked so consistently.

              It's only surprising if one assumes that those doing the overlooking are motivated by honesty and/or any real concern for the facts.

          2. And yet he handled the situation he ultimately found himself in remarkably well...

            Indeed. It's surprising that this point is overlooked so consistently.

            Whether or not one approves of his reason for being armed and being there, once he came under attack from a string of crazy folk, he seems to have held off firing until the last possible moment.

            The contrast between that and Lt Byrd - an officer with 28 years service - is striking.

    3. If it's legal for one to exist in the space then going there regardless of the expectation of violence or lack there of they are legally allowed to be there. Otherwise as Bruce put it, create an expectation of violence to prevent anyone from going there without being charged with assault or murder should someone be assaulted or die.

      One individual's or even several, or many individual statements don't create law, don't change law, and don't change the right of another to be, or do anything within the law which is legally allowed. That argument falls flat in the face of reality.

  21. A more difficult situation than meets the eye. First, it seems she would have every right to come to and into brothel to fetch husband until they trespassed her. Perhaps (and I imagine) they were both kicked out (contributing to his ire?). No record of what was said in brothel? How did she “coax” him out? And that’s an interesting term. Was that provocation?

    “Come home right now or I’ll tell your mom/son/boss/pastor?”
    “Come home right now or I’ll never make breakfast for you again!”
    “You can’t ever come home!”
    “When you come home there’ll be a loaded gun waiting for you!”

    I’m sure testimony from Miss Johnson was not forthcoming.

    So there’s some interest in my part how he was prompted to follow her out. But I would say she had every legal right to show up, and even walking in the neighborhood of the brothel would be just cause to carry self protection, *especially* for a woman. Who knows what kinds of people she’s encountering on way there or way home?

    So she’s armed, legally.
    She arrives on premise, legally.

    So you have proposed that she armed herself “looking for trouble” - towards the intentional ends of a violent encounter. I would say that this is like Mrs. Moore’s right to own a VCR 70 years later: if there’s any rational conceivably legal reason for her to possess it, she can possess it. She has rational, legal reason to be carrying a firearm in that neighborhood even if she was only bringing them a pie.

    Now the alley - words are exchanged, he pulls knife, threatens, she shoots. Sounds like an easy case of self defense to me on those facts.

    Can we believe her story of events? Who else saw or heard anything? Is this the first time she has shown up to extract husband?

    I like the statement that “self defense does not require you to take a beating first.” The threat of death or grave bodily harm will suffice.

    So if you, dear juror, we’re in the position of Mrs. Moore, in a dark alley, where your enraged husband had just left the brothel - and he’s the one person in that neighborhood that you should expect any protection from - towers over you with a knife and threatens to kill you.. you deserve life, you deserve to protect yourself, you have no means to do it physically - Mr. Moore is drunk, enraged, holding a deadly weapon, threatening the one person he’s supposed to protect in life, but wait, the gun - the one thing she brought to protect herself from hoodlums. She uses it to affect the remedy that her feeble frame could not affect in bare combat with Mr. Moore directly.

    Etc., etc., but that seems like an easy lay-up. The two shots into a “dead man”? Not just one, madam, but two?? I think that’s a separate crime entirely if you believe he really was dead or certain to die quickly in 1913. Her testimony to the fact by itself presents an obvious self interest, but seems necessary if no other testimony - the juror would likely believe the final two shots were the killing shots unless told otherwise. In the scenario of her following him out of the alley to kill him, it’s clearly murder. If only to ventilate his corpse, it’s a different story. His corpse is physical property at this point and hers, likely enough. There’s a desecration issue perhaps but I have zero familiarity with such laws in 1913. Shocking the conscience is not necessarily a crime, right.

    Her statement about half a man is interesting though and somewhat incriminating. *When* did she make that decision and what does she mean by “half a man”? A cheating man, or a man with two bullet holes in the scrotum (meaning broken but not dead yet)?

    1. But I would say she had every legal right to show up

      Which is neither in dispute nor relevant to the issue at hand.

      , and even walking in the neighborhood of the brothel would be just cause to carry self protection

      Which is part of the reason that Prof. Volokh and many others (myself included) believe that laws stripping one of the right to self-defense simply because one arms oneself as a precaution when going someplace where one might be at elevated risk of danger to one's person.

      So she’s armed, legally.
      She arrives on premise, legally.

      Again, neither are in dispute, nor are they relevant to the laws that are in dispute. Self-defense can be (and sometimes is) justified even in situations where the defender is armed illegally.

      So you have proposed that she armed herself “looking for trouble” - towards the intentional ends of a violent encounter.

      The author to whom you are responding has not proposed any such thing.

      1. Which is part of the reason that Prof. Volokh and many others (myself included) believe that laws stripping one of the right to self-defense simply because one arms oneself as a precaution when going someplace where one might be at elevated risk of danger to one's person.

        Oops. I inadvertently omitted the "are wrong" part that should have appeared at the end there.

      2. I think you’re mistaking “propose” for “believe”. These are thought exercises.

        The author asks his audience of the court’s conclusions: “What do you think: Does that make sense?”

        To this I was responding, not to your personal convictions or those that you believe are in the mind of the author. Defensiveness is unnecessary. So is appeal to authority.

        1. I think

          Your posts so far offer very little in the way of evidence to support that assertion.

          you’re mistaking “propose” for “believe”.

          I'm not mistaking anything. I'm quoting your exact words, verbatim, and informing you that the assertion you made is a false one. Again, the author to whom you responded did not "propose" what you claim he did.

          The author asks his audience of the court’s conclusions: “What do you think: Does that make sense?”

          Yes, which does not in any way, shape or form equate to him proposing that she armed herself “looking for trouble”.

          To this I was responding, not to your personal convictions or those that you believe are in the mind of the author.

          I said nothing at all about my or anyone else's "personal convictions", so that statement is just another dishonest misrepresentation on your part. This seems to be something of a bad habit with you. Also, what I or anyone else might "believe are in the mind of the author" is irrelevant. I'm pointing out that the author did not propose what you claim he proposed, not that he does/doesn't believe something.

          Defensiveness is unnecessary.

          So are dishonest straw man arguments.

          So is appeal to authority.

          Then it's a good thing that no such appeal was made. Or do you just not know what that means?

  22. Did either of the second two shots hit anything? People are assuming that they did but I do not find that in the text.

    Does it matter? If she stood over a dead body and pumped two bullets into it that seems to speak to intent. If she fired two shots wildly while under extreme mental stress... things are less clear.

  23. Do gun absolutists recognize that the farther they push shoot-'em-up laws when they have the chance, the easier (and more likely) it will be to dismantle those laws and, perhaps, the stronger the backlash will be?

  24. The provocation has to be something illegal. Trying to retrieve a husband from a brothel is not provocation but a reasonable intervention. Even if you realize he may be angry to point of attack. That anger issue is his not provocation by her.

    1. The provocation has to be something illegal.

      On what are you basing that assertion?

    2. Also, provocation wasn't an element of the Arkansas court's position.

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