Self-defense or deadly overreaction? In a nation awash with guns and racial division, it’s often hard to tell. – USA TODAY

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Kyle Rittenhouse was defending himself when he used an AR-15-style gun to shoot three people during chaotic summer 2020 protests, a jury has found. 

It’s a controversial verdict that is bringing new attention to the leeway U.S. laws often give people armed with guns to use deadly force when they claim to fear for their own lives.

The U.S. has a patchwork of laws governing self defense — none of which allow an armed person to instigate a conflict. But experts say it can be difficult to determine who is to blame for a confrontation, especially in a country awash with guns.

“Claims that deadly force was necessary in self-defense are going to come up more often because people are threatened with guns more often in the United States than other countries,” Christopher Slobogin, law professor at Vanderbilt University and director of the school’s Criminal Justice Program, told USA TODAY.

Complicating matters further, the nation’s laws sometimes predate the  proliferation of weapons owned by many Americans today — and many of the updated laws give armed citizens more rights, some removing a duty to retreat from threats, Slobogin said.

Watch: Kyle Rittenhouse reacts as jury reads not guilty verdict

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When it’s unclear who provoked whom in a conflict, criminal liability can be difficult to prove. And that ambiguity helped helped fuel the controversy surrounding the Rittenhouse case.

Rittenhouse, who traveled to Kenosha with a gun in the midst of volatile protests, was charged with first-degree intentional homicide of Anthony Huber, first-degree reckless homicide of Joseph Rosenbaum and attempted first-degree intentional homicide of Gaige Grosskreutz. 

The jury agreed with Rittenhouse’s supporters, who focus on the danger Rittenhouse perceived in the seconds leading up to the shootings. 

“I didn’t do anything wrong. I defended myself,” Rittenhouse said on the stand.

To many of his supporters, Rittenhouse serves as an example of how American’s second amendment rights can be used to protect against imminent threats — and many consider him a champion for his actions that night.

In contrast, Rittenhouse’s critics have claimed his actions were criminal — and his treatment in the justice system was evidence of systemic inequities. 

Prosecutors argued his decision to show up armed at a volatile protest set in motion the deadly events of the night.

“We shouldn’t have 17-year-olds running around our streets with AR-15s because this is exactly what happens,” Assistant District Attorney Thomas Binger said.

The nation famously grappled with the implications of self-defense laws after the 2012 killing of Trayvon Martin, a 17-year-old Black teen who was shot by George Zimmerman. Zimmerman was also acquitted.

And similar issues are being raised by the ongoing trial of three white men — father and son Greg and Travis McMichael and William “Roddie” Bryan — who are charged with killing a Black man — Ahmaud Arbery. Attorneys have argued that Travis shot Arbery in self-defense.

Legal experts have warned about blurring the lines between self-defense and vigilantism, particularly with the widespread gun ownership in this country.

“Certainly, some can be fearful of moving back in that direction of the Wild West days,” Slobogin told USA TODAY.

What are self-defense laws in the US?

While laws vary from state-to-state, in general, self-defense laws allow for the use of deadly force when a person reasonably believes they are in imminent threat of being killed. 

The concept underlying a so-called “perfect” self-defense claim has fueled many pro-gun rights groups: A “good guy with a gun” can stop violence from being committed against them and others.

An important factor in whether someone can claim self defense is who is considered the “initial aggressor.” In most cases, the person first to physically attack cannot claim self defense.

“The law is very clear, that if you provoke a confrontation with someone … you don’t have a right to claim self defense — unless you can show that in the moment in which you shot, you were in imminent threat of imminent bodily harm and you had no choice but to respond,” Nancy Gertner, a former federal judge who teaches at Harvard Law School, told USA TODAY.

But even with video evidence — as there was in the Rittenhouse case — sorting out who started a conflict can be difficult.

The jury had to consider whether the conflict began when Rittenhouse traveled to Kenosha armed with a weapon, as the prosecution argued, or in the very moments leading up to the shootings themselves, as the defense argued, Slobogin said.

In Wisconsin, where Rittenhouse was tried, to use deadly force, a person must reasonably fear being be killed or seriously hurt. There is no specific duty to first attempt to retreat from the threat.

The law also says the burden of proof in such self-defense cases is on the prosecutor. In the Rittenhouse case, that meant proving to the jury beyond a reasonable doubt that Rittenhouse’s belief was either insincere or unreasonable.

Meanwhile, in more than half the country — including Florida, Texas, Alaska and New Hampshire — more permissive “stand-your-ground” laws don’t require a person to pursue other avenues like retreating from the threat.

How the rise in gun ownership complicates self-defense laws

The principles of modern-day self-defense law originate in 17th-century English common law, giving white, property-owning men the right to defend themselves, Harvard historian Caroline Light argued in her book “Stand Your Ground: A History of America’s Love Affair with Lethal Self-Defense.” 

It’s a legal concept that originated in a time where figuring out who provoked a conflict may have been easier, Sam Buell, a professor of law at Duke University, told the Associated Press. The guns were less deadly back then. And today, there’s more of them.

In fact, there are more guns in the U.S. than there are adults.

While gun laws, weaponry and gun ownership have evolved dramatically in the U.S., Slobogin said self-defense law has not kept up with it. That’s a problem because the presence of — or the threat of — a gun can escalate conflict.

“Even in states that are non-stand-your-ground states, there is a concern that people will think, ‘There’s no reasonable alternative to shooting this guy. I have a gun, and I think maybe he has a gun. Therefore, I’m going to act,’” Slobogin said.

‘Chased down’ and killed: Trial over Arbery’s death reveals ‘painful’ similarity to case that launched BLM

“That doesn’t mean you’ll get a defense, but it can create an atmosphere where gun usage becomes more acceptable,” he said.

More permissive self-defense laws lead to upticks in violence, inequities, studies suggest

While self-defense laws, and especially  stand-your-ground, laws aim to to deter violent crime from taking place, research has shown their expansion can have the opposite effect. 

According to research done as part of the Stand Your Ground Project, such laws achieve no change or slight increase in violent crime. In Florida, the first state to adopt stand-your-ground in 2005, the laws are associated with “robust increases” of firearm and total homicides. Additionally, there were demonstrated racial inequities with the application of stand-your-ground.

“[Florida stand-your-ground] cases that involved racial minority victims ended in conviction less often than those with White victims,” University of Oxford authors of one review found.

According to Cynthia Lee, a George Washington University Law School professor who has studied racial bias in self-defense along with police use of force, the reasonableness requirement of a self-defense argument allows for bias to operate.

Lee told USA TODAY that implicit bias against Black people and other people of color can include the negative stereotype that Black people are criminals, violent or pose a threat when they do not in reality.

“In assessing reasonableness, if the defendant is relying on deeply ingrained stereotypes about Black or about other people of color… the defendant’s claim that he or she believes the victim posed a deadly threat may be found by the jury to be reasonable if it’s a belief that most people would have had,” Lee said.

The Rittenhouse verdict has led many to question how a self-defense claim would have been received if Rittenhouse were Black, not a white teen, according to Milwaukee criminal defense attorney and Marquette Law School adjunct Craig Mastantuono.

“A lot of people have asked the question: If Kyle Rittenhouse were Black, openly carrying an AR 15 with other Black people, claiming to represent businesses and their safety, would they be afforded the same benefit of doubt leading to a privilege which would exonerate them for taking of life?” Mastantuono said.

Slobogin said juries should examine whether a person could reasonably avoid the use of deadly force, and self-defense laws should be explicit about it.

“If there are reasonable alternatives, then self-defense should not be an option,” he said.