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Thread: The Rittenhouse Case: An Analysis (Partial)

  1. #1
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    The Rittenhouse Case: An Analysis (Partial)

    I suspect that the vast majority of our American members must at least be aware of the Kyle Rittenhouse trial, even if they haven’t been following it closely. Many people (members of M1911.org and otherwise) who are vitally concerned with the right to keep and bear arms watched it closely. From comments I have seen on other sites, there seems to be considerable confusion as to why the sixth charge -- unlawful possession -- was dropped just before the end of the trial. This is my non-lawyer attempt to unmuddy the waters just a bit.

    Ultimately, it comes down to the fact that the prosecution apparently didn’t bother to read the law under which they brought that charge. Or, perhaps more accurately, I’m going to guess that they only read it as far as they wanted, and overlooked the rest of the law. For the rest of us, I think it offers a great example of just why it is important to read and understand the laws that apply to whatever it is you’re doing (or going to do.

    Let’s start with the law. The basic statute, on which the charge was based, is Section 948.60 of the Wisconsin statutes. https://docs.legis.wisconsin.gov/sta...tatutes/948.60. The title of the section is “Possession of a dangerous weapon by a person under 18.” Subsection (1) defines what constitutes a “dangerous weapon” for the purposes of this section of the statutes.

    Subsection (2)(a) then establishes the crime:

    (a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.
    I think the prosecution stopped reading right there. They said “GOTCHA!” and filed the charge. Unfortunately for the prosecution, it’s not as cut-and-dried as they thought, and Rittenhouse’s attorneys (fortunately for Rittenhouse) did take the time to actually read and understand the totality of the law. Here’s what the prosecution missed: There are three subsections in the law, and subsection (3) has three sub-subsections. The sub-subsection we’re interested in is sub-subsection (3)(c), and specifically only the first sentence thereof:

    (c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.
    The plot thickens. Rittenhouse was 17 years old at the time of the incident. Superficially it looks like a prima facie case of a violation ... until we read down to sub-subsection (3)(c). When we read that, we find that this entire section of the statutes applies to a 17-year old ONLY if he is in violation of section 941.28 of the statutes, or he is in violation of BOTH section 29.304 AND 29.593.

    So, before we can determine that Rittenhouse’s possession of the rifle was unlawful, we have to look at those sections of the statutes.

    Section 941.28 says the following:

    941.28  Possession of short-barreled shotgun or short-barreled rifle.
    (1)  In this section:
    (a) “Rifle" means a firearm designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of a propellant in a metallic cartridge to fire through a rifled barrel a single projectile for each pull of the trigger.
    (b) “Short-barreled rifle" means a rifle having one or more barrels having a length of less than 16 inches measured from closed breech or bolt face to muzzle or a rifle having an overall length of less than 26 inches.
    (c) “Short-barreled shotgun" means a shotgun having one or more barrels having a length of less than 18 inches measured from closed breech or bolt face to muzzle or a shotgun having an overall length of less than 26 inches.
    (d) “Shotgun" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of a propellant in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.

    (2) No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.

    (3) Any person violating this section is guilty of a Class H felony.

    (4) This section does not apply to the sale, purchase, possession, use or transportation of a short-barreled shotgun or short-barreled rifle to or by any armed forces or national guard personnel in line of duty, any peace officer of the United States or of any political subdivision of the United States or any person who has complied with the licensing and registration requirements under 26 USC 5801 to 5872. This section does not apply to the manufacture of short-barreled shotguns or short-barreled rifles for any person or group authorized to possess these weapons. The restriction on transportation contained in this section does not apply to common carriers. This section shall not apply to any firearm that may be lawfully possessed under federal law, or any firearm that could have been lawfully registered at the time of the enactment of the national firearms act of 1968.

    (5) Any firearm seized under this section is subject to s. 968.20 (3) and is presumed to be contraband.
    https://docs.legis.wisconsin.gov/sta...tes/941/iii/28

    Subsection (1) is the definitions, and the definitions include both “Rifle” and “Short-barreled rifle.” The operative part of this law is subsection (2), which says, “No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.”

    Well, that’s interesting. In order for Rittenhouse to have been guilty under section 948.60, he would have had to be in violation of this section -- and to be in violation of this section he would have had to be carrying a short-barreled rifle. When pressed, the prosecution had to admit that the rifle Rittenhouse carried and used was not a “short-barreled” rifle.

    But we also have to look at sections 29.304 and 29.593 -- and we have to look at them together, because the base law is violated only if someone violates both of these sections. However, both 29.304 are hunting statutes, so they don’t apply in this case.

    https://docs.legis.wisconsin.gov/sta...utes/29/iv/304
    https://docs.legis.wisconsin.gov/sta...es/29/viii/593

    And that’s how the judge determined that the possession of a dangerous weapon by a person under 18 charge did not apply to Mr. Rittenhouse.
    Hawkmoon
    On a good day, can hit the broad side of a barn ... from the inside
    Likes (1) :
    Frgood (Today)


  2. #2
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    The judge also commented that the law was nearly impossible to understand, that he spent hours checking it himself. At one point, he said he could not give a formal jury instruction on a law he could barely understand himself.

  3. #3
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    It's actually NOT hard to understand. However, you have to NOT start with a preconception of what it says, and then you have to just follow the bouncing ball. It leads you through it, just as I laid out above.

    The problem here was that the prosecution started out with the preconceived notion that Rittenhouse was breaking the law, and then when the judge showed them they were wrong, they resorted to whining about, "Well, then what good is it if we can't use it?" Don't ask the judge -- he didn't write it. Ask the legislators who wrote it what they had in mind.
    Hawkmoon
    On a good day, can hit the broad side of a barn ... from the inside

  4. #4
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    I personally think the prosecution knew they had a loser of a case to begin with, and didn’t put a whole lot of effort into the trial.

  5. #5
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    Quote Originally Posted by scattershot View Post
    I personally think the prosecution knew they had a loser of a case to begin with, and didn’t put a whole lot of effort into the trial.
    I agree. I believe Binger was specifically assigned so others in the office wouldn't suffer his fate - office of the fallguy
    Likes (1) :
    LarryM (23rd November 2021)


  6. #6
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    Fall guy or not, he's still an officer of the court. His office's web site says:

    MISSION STATEMENT / OVERVIEW

    The primary mission of the Kenosha County District Attorney’s Office is to uphold the rule of law, vigorously prosecute criminals and seek justice for victims of crime. The District Attorney is a constitutional officer, elected by the people of Kenosha County to a four-year term of office. The duties and responsibilities of the District Attorney are more particularly set forth in Section 978.05, Wis. Stats. It is important to keep in mind that the District Attorney is the gatekeeper to the criminal justice system. As such, his job is not merely to obtain convictions but to seek justice.
    If his job is to seek justice, why did he engage in so many unscrupulous, unprincipled, and unprofessional dirty tricks? Why not just present the case based on the facts and the law, and "take his beating like a man"?
    Hawkmoon
    On a good day, can hit the broad side of a barn ... from the inside

  7. #7
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    You are assigning morals and ethics to politicians ...

  8. #8
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    Quote Originally Posted by Mark75H View Post
    You are assigning morals and ethics to politicians ...
    I know.

    Silly me ...
    Hawkmoon
    On a good day, can hit the broad side of a barn ... from the inside

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