U.S.A. -(AmmoLand.com)- Many readers have avidly been following the Kyle Rittenhouse self-defense trial in Kenosha, Wisconsin. One of the important aspects of the case is the contention over what Wisconsin statute 648.60 (“Possession of a dangerous weapon by a person under 18.”) means. This correspondent has written extensively on this issue. Here is the relevant portion of the trial from this week.
Essentially, the defense says, under the law, Kyle Rittenhouse did NOT commit an offense, his possession of a rifle was legal.
The prosecution says the law is written in such a way that he DID commit an offense, he could not legally possess a rifle without a hunter safety certificate.
The first arguments are about the jury instructions. Defense attorney Chirafisi says he hoped Judge Schroeder had made up his mind about the defense motion to dismiss, and then to reconsider the motion to dismiss charge number six, possession of a dangerous weapon by a person under the age of 18.
Judge, if I could, Initially I was hoping the Court would take up our motion for reconsideration which was filed a week ago Monday.
Judge Schroeder: OK
Defense Attorney Corey Chirafisi:
And, once that is done, depending on how you rule on it, I would have an objection to 2176, because in my reading of 2176, the notes set forth what is to happen or how the Court is to do when there is an alleged exception, which we are alleging here. And I think that is to be put into, as part of the instruction.
And as it reads now, I don’t think there is an exception. So, I think that has to be included in the instruction if the court does not grant our motion for reconsideration.
Judge Schroeder: OK
The response is that I have not been able to complete what I wanted to do on your motion for reconsideration. I did not get it until later last week. It didn’t mean you didn’t file it, it means I didn’t get it. And I didn’t have a chance to, I looked at it somewhat, but not all of it, and one of the things I definitely wanted to check, so I ditdn’t, I am not in a position to make a final ruling on that. I think I should instruct on it, but what you’re asking for is actually exceptional language, which the instructions are not going to be frozen at the time that its given this morning, so I think in order to acquaint jurors with this particular case, well, I don’t know, maybe I should leave that one alone, because, because I am leaving the ordinance violation and the forfeiture action alone, and I could just tell them all everything at the end of the case.
(To the prosecution) How do you feel about that?
Prosecutor (not Binger):
Judge, I feel as though we have gotten a little lost in the weeds here. What the defense is alleging is an affirmative defense. If they want to raise that affirmative defense, they are welcome to do so. It is not a subject for motion to dismiss the complaint, to get the complaint dismissed. The complaint need not address every affirmative defense. If they wish to present a case, if they wish to present an affirmative defense that he was compliant with both of those subsections, that he had a hunter safety permit, or the completion that the second part, ah, third part of that statute calls for, but until they can do that, I don’t see why that should be in the jury instructions, we don’t have self defense in the jury instructions, because that is another affirmative defense, and if they raise that, which they certainly will attempt to do so, that can be in the charges at the end, the jury instructions at the end, so, no I don’t believe that at this point there is any basis to dismiss it. I do have a brief that I could submit, I did not want, it may not be timely to lay it out, as to why we believe it is an affirmative defense, and not a subject for a a motion to dismiss.
In terms of the curfew violation, we’re wondering how we are going to do that because that would be a six person jury, and not a twelve person jury.
Judge Schroeder:
You don’t think I can just have a twelve person jury to decide it?
Prosecutor:
Well, it’s a different standard of proof.
I can submit this brief and send it to the defense if the Court would find it helpful, but, it’s an affirmative defense, I mean it is clearly what it is. The defense may not want this to be addressed in the trial, and they may not want the evidence in front of the jury, but we’ve met our probable cause, we’ve met our standard in the complaint, and its been bound over, and now its up to the defense if they want to try to raise this affirmative defense.
We disagree that being 17 is of itself, is raised the affirmative defense, the state believes he has to present the certificate of completion of a hunter safety permit, as called for in statute.
Judge Schroeder:
Ok. I think what I am going to do is refrain from giving any instruction on either counts six or count seven (the weapons possession and the curfew violation), and tell the jury I am not going to give them instruction at this time on those… Well, that’s proabably not the best thing to do either, because then they don’t know what we are talking about.
(to Defense attorney Chirafisi) What is your reaction to the claim that it is an affirmative defense?
Defense Attorney Corey Chirafisi:
It is not an affirmative defense. For sixteen and seventeen year olds, its not an affirmative defense. The information that I provided to the court, through the legislative history, makes it clear its an exception. It is not an affirmative defense. It is an affirmative defense for people under the age of sixteen. I’d agree with that 100 percent. But if you look at the senate bills 7 and the 1991 act, in three different places, It tells you, in plain language, that it does not apply. Not for hunting purposes, It does not apply, period, to sixteen and seventeen year olds who possess firearms. That is, and I’ve provided that to the court, both in the act, and in the senate bill, Judge. And in the legislative reference bureau information.
Judge Schroeder:
I am going to give the instruction as I’ve stated it. These are educational, they don’t get a written copy, and they’re, just so they know what we’re talking about, when we are talking about these charges, and at the close of the case I can add whatever language is necessary, assuming that the motion has been denied, which you shouldn’t assume, but if the motion is denied, then I will add the language that clears what clears up exactly the full scope of the charges, but I don’t think, I don’t want to leave them uninstructed, on the one hand, and I don’t want to mis-instruct them on the other, but no matter what it is, it is exceptional from the general language of the statute.
Defense Attorney Corey Chirafisi:
It makes it a strict liability, of the offense, today. If you’re under 18, and you have a gun, you’re guilty. And I don’t think that’s what the law is. So, that’s the problem that I have. The statute clearly lays out exceptions to that. And to just say: He’s under 18, and he had a gun, those are not in dispute, then he is, the way the instruction reads, there is none, affirmative defense, whether it is or not one there is no defense.
Prosecutor:
That’s the last part of the statute. In Wisconsin, If you are under 16 you need to be accompanied by an adult , to hunt, as long as you have hunter’s safety. If you’re 16 or 17…
Judge Schroeder, interrupting..
That’s how YOU read it.
He reads it differently.
Judge Schroeder: “That’s how YOU read it.”
Prosecutor:
That’s how the DNR (Department of Natural Resources) reads it.
Judge Schroeder:
Aw, Ok.., all right… (takes it as a joke…)
Prosecutor:
16 and 17 year olds can hunt alone, with a hunter safety permit, which is what the last part of that statute calls for. And that’s being completely ignored in Mr. Chiafisi’s argument.
Judge Schroeder:
OK. I am going to give some very incomplete language to acquaint them with the fact that there is a charge on the information respecting the possession of a firearm and that I will instruct them concerning the elements of that offense at a later point. OK. And the same thing will happen with respect to the forfeiture action. So. Any other objections or proplems with the proposed instructions?
This exchange ends about 36:10 into the video (embedded below).
Later, at video marker 49:25, Judge Schroeder says, speaking of the gun possession charge:
I have had a lot of statutory issues come up over the years, and this is the knottiest.
After the jury is brought in, sworn in, and seated, Judge Schroeder gives jury instructions.
At 1:21:49, Judge Schroeder says:
The sixth count charges that the same time and place, the defendant was a person under the age of 18 years, and was armed with a dangerous weapon.
At 1:22:20, Judge Schroeder says:
I am going to give you a bit more complete instructions about those offenses which are alleged at the close of the trial. Basically the sixth count deals with the circumstances under which it is lawful for a person who is under the age of 18 to have a firearm in his possession.
To this correspondent, this appears a very favorable outcome for the defense.
Judge Schroeder has told the jury there are circumstances under which it is lawful for a person who is under the age of 18 to have a firearm in his possession. He has said he will give more complete instructions later. This gives him the option of dismissing the firearms possession charge, either because the law does not apply to Kyle Rittenhouse, or because the statute is too confusing to be understood by a person of ordinary intelligence.
Another purpose served by “kicking this can to the end of the trial” is it prevents a media firestorm over Judge Schroeder dismissing the charge at the beginning. It allows the prosecution to build its entire case on the charge of illegal possession, only to eliminate that from jury consideration at the end of the trial.
Once the jury has come to a verdict of not guilty, Kyle Rittenhouse may not be tried again for those offenses.
The prosecution can appeal to a higher court a ruling dismissing the charge because it does not apply, or dismissing it on the grounds that it is too confusing to understand.
Now, such an appeal would happen after this trial is over.
Prosecutor Binger showed himself to be a well-practiced attorney and a capable prosecutor. He has very little to work within this political case.
Conspicuously absent from Binger’s opening statement was any claim that Kyle Rittenhouse possessed the rifle illegally. By doing so, Binger may avoid the potential trap of relying on that charge, only to have it dismissed at the end of the trial.
For those interested in the case, watching the entire six and a half hours of courtroom drama can be useful and educational.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering and retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.
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