Yes, a Black Kyle Rittenhouse Would Still Be Acquitted

COMMENTARY Crime and Justice

Yes, a Black Kyle Rittenhouse Would Still Be Acquitted

Dec 7th, 2021 8 min read
COMMENTARY BY
Amy Swearer

Legal Fellow, Meese Center

Amy is a legal fellow in the Meese Center for Legal and Judicial Studies.
Kyle Rittenhouse puts his hand over his face as he is found not guilty on all counts at the Kenosha County Courthouse on November 19, 2021 in Kenosha, Wisconsin. Sean Krajacic - Pool / Getty Images

Key Takeaways

The idea that no jury would ever acquit defendants of color who claim they acted in self-defense is not just overly reductive, it’s absurd.

It’s also not true that only white Americans get away with openly carrying firearms in public.

In a sensible world, we would at least acknowledge this, and stop demagoguing successful self-defense claims based on the defendant’s race.

A jury acquitted Kyle Rittenhouse last month on charges related to his Aug. 25, 2020, shooting of three white men during a chaotic, destructive night of civil unrest in Kenosha, Wisconsin. This came as little surprise to anyone who watched the trial with an open mind.

Regardless of one’s thoughts on the wisdom of a 17-year-old arming himself to defend the livelihoods of strangers, Rittenhouse had strong claims of lawful self-defenseand conviction seemed like an uphill battle for the state from the outset.

And yet, countless blue-check pundits on social media immediately lost their collective minds in a race-baiting game of “What if Rittenhouse was black?”

Their presumptive implication is that Rittenhouse’s acquittal was based entirely on his race. Several highly followed commentators went so far as to explicitly assert that no person of color could ever intentionally shoot someone with a gun he or she carried in public and be acquitted on grounds of lawful self-defense.

The idea that self-defense is a legal justification largely for white Americans and that no jury would ever acquit defendants of color who claim they acted in self-defense is not just overly reductive, it’s absurd.

It’s also easily disprovable with a basic Google search.

Consider just some of the many non-white defendants who were acquitted of murder or attempted murder charges in recent years because juries determined they acted in lawful self-defense:

  • Tony Bristol—A jury acquitted Bristol on all charges related to a confrontation during which he fatally shot one man and wounded another. The prosecution argued that Bristol intentionally armed himself with a gun just before the confrontation and shot the two unarmed men—one in the back—over a longstanding interpersonal dispute. Bristol argued that he shot in self-defense after the men threatened him, and that he reasonably believed they were armed and posed an imminent danger.
  • Stephen Spencer—Spencer, a concealed carry permit holder, was acquitted by a mostly white jury who believed he fatally shot a white man in self-defense during a race-related dispute.
  • Jaron Moore—Moore admitted to fatally shooting Reginald Frank following an argument at Frank’s home during a barbecue, but claimed he acted in self-defense after Frank produced a gun. The jury acquitted Moore despite the prosecution’s argument that Frank was unarmed and that Moore was the initial aggressor who “went to the victim’s home to inject himself into an argument he didn’t belong in.”
  • Jesus Lima—Prosecutors argued that the 18-year-old Lima was the initial aggressor who knowingly brought a gun to the confrontation outside of a liquor store that ended with him fatally shooting another man. They contended that Lima didn’t report the shooting afterward, initially lied to police about details, and previously threatened one of the men involved in the confrontation. He was nonetheless acquitted after testifying that he was attacked by a group of five men and retreated for over 20 yards before drawing his gun.
  • Nehemiah Martin—Martin, a concealed carry permit holder, was charged with murder after fatally shooting the boyfriend of his children’s mother during a child custody exchange. A jury acquitted him, believing his claim that he fired only after the boyfriend physically assaulted him.
  • Shantoria Hankins—A jury determined that Hankins acted in self-defense when she fatally shot a man who tried to intervene during an argument between Hankins and another woman outside of a Toledo bar.
  • Jaleel Stallings—Stallings successfully argued that he acted in lawful self-defense when he fired several rounds at Minneapolis police officers during the chaotic nights following George Floyd’s murder. The jury believed that he reasonably thought the officers, who wore street clothes and were using an unmarked van, were unlawful assailants who fired live rounds at him first.

The first dozen pages of a basic Google search provide far more examples from the last two or three years than would be possible to summarize without editors cutting this op-ed for overshooting any reasonable word limit. I haven’t even gotten to Kenneth Ray SmithNaquann WareDemarcus GlennJonathan OutlawMichael WhiteKavante WrightAmbrose KnoxDarreonta ReynoldsCorion MosleyArron Gaines, and James Nero.

At the same time, there are plenty of recent and readily researchable cases where defendants of color were charged with serious felonies, yet had those charges dropped by prosecutors long before trial because the state believed it couldn’t disprove the claims of self-defense: Ajay AlvarezRobert ChesserLeon McCray Sr., Jawaun ThompsonEduardo MaciasShaneisha Heath, and Bernard St. Pierre.

If the talking heads of social media commentary aren’t aware of these cases, which again required nothing more than a basic Google search to find, it should come as no surprise that they’ve also failed to conduct basic research to support their claim that white Americans routinely “get away with murder” by “just claiming self-defense.”

First, this completely misrepresents the reality of Rittenhouse’s situation. He did not simply shoot three people, claim self-defense, and walk out of jail as though nothing happened.

Rittenhouse spent months in pre-trial detention, had his life placed on hold for a year-and-a-half, saw every aspect of his life scrutinized by a hostile national media, racked up untold tens of thousands of dollars in legal fees, and had to convince a jury of his peers that he acted in lawful self-defense.

It also ignores the many times in recent memory that high-profile white defendants unsuccessfully raised claims of self-defense. Just a week after the Rittenhouse verdict, a jury in Georgia convicted three white men of murder in the shooting death of Ahmaud Arbery, a black man. The jury discounted their claims of self-defense.

This is far from the only recent example:

  • Anthony James TrifilettiTrifiletti, 24, was convicted of murder for fatally shooting a black man after a minor traffic accident. Trifiletti claimed he acted in self-defense and said he feared that the man—who was ultimately unarmed—was reaching for a gun.
  • Michael McKinney—A white Army veteran was sentenced to over a decade in prison for shooting and wounding a black teenage girl when he fired into a vehicle encircled by political rally participants. The man initially claimed he “felt he was in danger” and was merely protecting himself.
  • Michael Drejka—A jury convicted Drejka of manslaughter for fatally shooting Markeis McGlockton during a confrontation over a handicap parking spot. Drejka claimed he acted in self-defense after an unarmed McGlockton shoved him to the ground and stepped toward him.
  • Jacob Gardner—A grand jury indicted Gardner for manslaughter and other felony charges related to his fatal shooting of James Scurlock, a black teenager, during a Black Lives Matter protest, which Gardner claimed was in self-defense. Gardner committed suicide before the trial.
  • Simeon Berkley—Berkley was convicted of second-degree murder after a jury determined he did not act in lawful self-defense when he fatally shot another motorist after a collision.

It’s also not true that only white Americans get away with openly carrying firearms in public. While gun control has—to our national shame—historically been used to intentionally disarm non-white Americans, examples abound today of non-white gun owners open carrying firearms in contentious situations without being “immediately shot down” by police.

During the civil unrest in Ferguson, Missouri, in 2014, black residents literally took up arms to defend a white neighbor’s business. Black gun owners have, in recent years, open carried to defend lawmakers, protect Black Lives Matter protestorsprotest police shootings, ward off riotersadvocate for their Second Amendment rights, and demand Confederate monuments be torn down.   

The American criminal justice system is imperfect. Racial disparities exist and should be addressed.

But simplistic, race-baiting narratives of self-defense as a legal justification solely for white defendants or that no black defendant in Rittenhouse’s shoes could have successfully claimed self-defense under similar circumstances distract from real problems.

A black Rittenhouse tried for those same actions under those same circumstances and with all relevant interactions equally caught on video very likely raises a successful claim of self-defense—a justification entirely warranted under the law, based on the evidence.

In a sensible world, we would at least acknowledge this, and stop demagoguing successful self-defense claims based on the defendant’s race.

This piece originally appeared in The Daily Signal