Was Rittenhouse’s Possession of the AR-15 Unlawful?

In covering the motions hearing last week in the trial of Kyle Rittenhouse, I noted a surprising comment from Judge Bruce Schroeder that he had “spent hours” with the Wisconsin gun law and could not state with certainty what it means in this case. The statement could effectively knock out the misdemeanor gun possession count — the one count that could still be in play for the jury after the prosecution’s case on the more serious offense appeared to collapse in court. A close examination of that provision reveals ample reason to question not just its meaning but its application to this case.

The unlawful possession of the gun has been a prominent fact cited not only by the prosecutors but the press.

At trial, however, prosecutor Thomas Binger at points seemed to be learning the governing law from Rittenhouse. For example, he pressed Rittenhouse on why he did not just purchase a handgun rather than an AR-15.  Rittenhouse replied he could not possess a hand gun at his age. Binger then asked in apparent disbelief that the law allowed him to have an AR-15 but not a handgun and Rittenhouse said yes.  Binger then moved on after seemingly drawing out a point for the defense.

The exchange was all the more baffling because it drew attention to the fact that one of Binger’s alleged “victims” was an adult named Gaige Grosskreutz who also decided to bring a handgun to the protests and pointed his .40 caliber Glock at the head of Rittenhouse when he was shot in the arm.

However, the most damaging moment came outside of the presence of the jury when the judge drilled down on the law. He told the prosecutors “I have been wrestling with this statute with, I’d hate to count the hours I’ve put into it, I’m still trying to figure out what it says, what’s prohibited. I have a legal education.” He added that he failed to understand how an “ordinary citizen” could understand what is illegal.

It is hard to understand how the count could be given to the jury without a clear understanding of what it means. It is also hard to instruct a jury on an ambiguous statute. Criminal laws are supposed to be interpreted narrowly.   It is called the “rule of lenity” and has been around in the English system for centuries. For example,  in 1547, the court was faced with a law making it a felony to steal  “Horses, Geldings or Mares.” Given the use of plural nouns, the court ruled that it did not apply to stealing just one horse.

The problem with the Wisconsin statute is not a problem of pluralization but definition. It is not clear that the statute actually bars possession by Rittenhouse. Indeed, it may come down to the length of Rittenhouse’s weapon and the prosecutors never bothered to measure it and place it into evidence.

In Wisconsin, minors cannot possess short-barreled rifles under Section 941.28. Putting aside the failure to put evidence into the record to claim such a short length, it does not appear to be the case here. Rittenhouse used a Smith & Wesson MP-15 with an advertised barrel length of 16 inches and the overall length is 36.9 inches. That is not a short barrel.

Then there is the rest of the statute and ultimately the word “and.”  Under Section 948.60(2)(a) (“Possession of a dangerous weapon by a person under 18”), “[a]ny person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.” That makes Rittenhouse guilty, right?

Well, you then have to look at the subsection (c), which states that “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.”

Since there is no evidence that Rittenhouse violated Section 941.28, he presumably must be in violation of both sections 29.304 and 29.593.. The defense conceded Rittenhouse was in violation of Section 29.593, which requires certification for weapons. However, he is not in violation of section 29.304, entitled “Restrictions on hunting and use of firearms by persons under 16 years of age.” As the title indicates, the section makes it illegal for persons under 16 to use firearms. Rittenhouse was 17 at the time and the prosecution has not challenged that fact.

If Rittenhouse were convicted on that count, it could face a serious challenge on appeal. Indeed, it is curious is why Schroeder would even submit the count to the jury if it is uncontested that Rittenhouse was 17. If that is the correct interpretation of the statute, there would be no way for a jury to reasonably convict Rittenhouse. It is akin to giving the jury a criminal count based on his use of force as a police officer when there is no evidence that he was a police officer.

The defense also offered legislative history to support the narrower interpretation but the prosecution opposed such reliance on material beyond of the language itself. However, that language is difficult to square with the charge and the evidence in this case.

Rittenhouse is obviously facing other counts. However, on that count, the question comes down to the “and.” To paraphrase Johnnie Cochran from the O.J. Simpson trial, if that clause “doesn’t fit, you must acquit.”

 

118 thoughts on “Was Rittenhouse’s Possession of the AR-15 Unlawful?”

  1. Cultural appropriation is an irrelevant concept, because a culture cannot be trademarked.
    It is not intellectual property. So the next time someone brings it up as though it were
    a concept to be taken seriously, tell them to kiss your grits as you rock your feathered headdress.

  2. “Since there is no evidence that Rittenhouse violated Section 941.28, he presumably must be in violation of both sections 29.304 and 29.593” That’s beyond incorrect, and borders on insanity. A juvenile is required to be in compliance with both of the quoted subsections, not one or the other. Turley’s reading of the law would permit a four-year-old to carry an AR-15 if he were in compliance with the “certification” requirement. Turley is simply looking for an way to excuse the fact the Rittenhouse was carrying the gun illegally, and the judge bought that excuse.

    1. Neither you nor Turley are correct, although Turley is closer. (1) Absent legislation, anyone can possess any firearm. (2) 928.41 makes rifles and shotguns with short barrels illegal. No exceptions. (3) Hunting rules at 29.304 subject possession of firearms by those under 16 to various conditions. No restrictions for those 16+. (4) 928.60 defines “dangerous weapons” to apply to specified weapons commonly used in street fights (although not all of them, like knives and bats), which minors may not possess. (5) “Dangerous weapons includes all firearms, so to avoid criminalising possession that would be legal under the hunting rules, 928.60 carves out rifles and shotguns, subjecting them to the hunting rules (that apply only to those under 16) and, somewhat superfluously, to the short barrel restriction at 941.28 that applies to everyone (i.e. it would additionally be a misdemeanour under 928.60 for a minor to possess one). (6) The reference to 29.593 is also somewhat superfluous; it relates to the need to have a certificate of accomplishment to obtain a hunting approval. So, *if* you are under 16, *and* are relying upon the fact that you are hunting (which is only one of the possible ways that you can possess a firearm in compliance with 29.304), you must also be compliant with 29.593, meaning that your hunting approval must have been obtained legally. This is completely inapplicable to Rittenhouse, who was not only not relying on hunting as the basis for his possession, he was not required to comply with 29.304 in the first place because it applies only to those under 16. The prosecutors position that there must be standalone compliance with 29.593 is absurd. How can one comply with 29.593 when one did not obtain a hunting authorisation?

      1. “…he was not required to comply with 29.304 in the first place because it applies only to those under 16.” No, that’s not what “not in compliance with ss. 29.304 and 29.593” means, and Turley is wrong about that phrase also. Both of you could use an undergraduate logic course. However, the statute would be more clear if it said “not in compliance with BOTH ss. 29.304 and 29.593.”

    2. This is all very confusing but I think this invalidates your argument:
      “ 29.304  Restrictions on hunting and use of firearms by persons under 16 years of age.
      (1)  Persons under 12 years of age.
      (a) Prohibition on hunting. No person under 12 years of age may hunt with a firearm, bow and arrow, or crossbow.”

  3. Turley, why is it so important to you to identify the RIFLE as “an AR-15”? In the firearms world –with which you’re obviously rather unfamiliar– an AR-15 is merely a type of rifle, a design pattern. It’s no different in its action (semi-automatic) than many hunting rifles currently sold, and legally used, around the country.

    The fact that it looks like a fully automatic rifle of the type used by military outfits is not determinant of its ACTION, which is semi-automatic and, in being such, not any more dangerous than a great majority of hunting rifles used legally for hunting across the USA. You probably don’t know that AR-15 pattern rifles are used for hunting in many states by many licensed, registered hunters. You probably don’t know that similar rifles are used in fully legal firearms competitions shooting at paper and metal targets.

    No, you’d prefer to latch onto “an AR-15” to suggest to your readers, in clickbait fashion, that Kyle Rittenhouse’s rifle was the type screaming firearms-hating people believe should NEVER be used by ANYONE not in the military.

    Your first point should have been to clarify that no matter what Rittenhouse’s rifle LOOKS LIKE to people terrified of firearms, it’s completely legal to own one — for the reasons I said in my first paragraph. You also should pay much closer attention to Wisconsin’s exemption for 17 year olds.

    I should expect better from a fairly heavily promoted law professor and “legal expert,” but at this point in the 21st Century I’ve come to realize that your teaching position and your alleged “expertise” are merely political tools, rather than indicia of an actual expertise. You are not the type of person I’d call as an expert witness, unless I was a political hack masquerading as an effective advocate, trying to throw the case for powers grearter than the client I’m allegedly defending.

    Shame on you. Clearly you write with integrity only when it serves whatever political agenda you harbor, and when it does not, you skip over relevant details while using the same legalistic quasi-analysis to serve your masters.

    I’d wonder if your lack of holism & failures of integrity haunt you when trying to fall asleep, but I’m wiser than that. You do not have such qualms. They’d get in the way of your fame- and money-chasing.

  4. Mr. Turley,
    In regards to the “short barreled rifle” clause in the law, it’s definition can be found in the National Firearms Act. A short barreled rifle is any rifle whose barrel measures less than 16″.
    We can assume from the myriad of charges against Mr. Rittenhouse that the rifle in question was not a SBR due to the lack of a charge for illegally possessing one.
    Thank you for your articles.
    -God Bless

  5. There was an incident in NY state. A 15 year old girl was alone at family home at 10 p.m. at night. There was a rifle over the fireplace loaded. Some burglar came in the back door after braking the lock. He had a machete. He came at her and she shot him dead. Can she be charged with any crime?

      1. BINGO!!!! More so, what color = “Race” race is she and he. If she is white and he is black? And, what part of New York state did it happen in?
        I know the law is supposed to be the same all across the state and in every state state law is supposed to govern throughout the state. But today in the United States, I think you know as well as I do that things spin on where the situation happened.

        If this happened in southern New York state there’s a strong possibility that she could be charged with something. If this happened in upper New York state in a small town she wouldn’t be charged with anything. Just like in Florida. Southern Florida is entirely different compared to
        NW Florida. Or any-place inside the “panhandle”. There is no way in hell I would ever want to live in southern Florida. As a matter of fact it’s gotten to the point I wouldn’t even want to live in Central Florida.

  6. Quick question – Rittenhouse is being charged with a number of very serious crimes, and at least one that is merely a misdemeanor (the gun charge being discussed above).

    The prosecution has chosen to charge him AS AN ADULT rather than as a juvenile for his crimes.

    So, my question is simple: if the prosecution has elected to treat Rittenhouse as an adult, then how can they charge with with a separate offense that only applies to juveniles? By doing so, aren’t they choosing to treat him as both a juvenile AND an adult, just to maximize the charges they can levy on him?

    If they can charge Rittenhouse in both these manners, does that mean they could also try him under both the adult and the juvenile statutes for the other crimes as well?

    1. Reply to Coffman:
      Very good point. A prosecutor can’t wait for a juvenile to reach age 28 and then prosecute him as an adult.
      Judge! Dismiss this case!

    2. My question is simple. How in the hell can he even be charged as an adult and also as a juvenile?? He cannot. It doesn’t take very long to do a little research on this matter pertaining to such said state by googling this matter.

    3. The other charges against him have no basis in age. There are no clauses or separate elements based on age, sex or color for those charges, which would be illegal in itself. However, arguing he was charged as an adult with offenses a minor would be guilty off does seem to trying to cut the case both ways. Nice Post.

  7. Aaron Lewis sings Patriotic Anthem ‘Am I The Only One’ (Live Acoustic)
    2,773,850 views
    Premiered Jul 21, 2021

    (Note View counts, ck back in a couple years.)

    1. No he’s not the only one. But, we conservatives haven’t done jack in 20 years, 30 plus years to stem the tide of leftist creep in our Nation. Because my side always backs down. Because my side is scared of the left. It’s scared of ANTIFA / BLM / SJW. Time after time I’ve seen my side back down even up against the pansy waist boys and girls that are pro-abortion. Time and again.

      YouTube is loaded with videos of them tearing down posters / pictures etc. And conservative men / women stand there with sheepish looks and hands inside there pockets. No, I’m not taking either side on this issue. (If I was taking a side, I’d stand on the side of my wife on this and she is pro-choice). What I am doing is using this issue to make a point. From abortion to strong voting laws, etc. We have backed down on everything in the left has taken over every institution in America and we did absolutely nothing.

      On any given weekend across our country the left is marching for the things that they truly believe then. They look at us and they laugh at us. There laughing at us. And if you’re honest with yourself you know what I’ve said is the truth. This has disgusted me and my wife since we got married 30 years ago. We are more than willing to step out on the picket line anytime. And we have tried to get things started by trying to form marches, And time and again everybody had a damn excuse. “We got jobs ya know!”

      Nobody works 24/7!! And we refused to turn our most precious possession over to the evil halls of satanic verses. By sending our 4 boys and 1 daughter over to a vile, evil College / University. 3 went to “Private Christian Colleges,” And 2 boys went to Maritime College because I went to Sea for my career. Started out as a 3rd Mate, retired Captain. Both boys that have chosen to go to sea make over $150 a year and are home 5 to 6 months each year.

      And the industry estimates the wages will continue to rise on a yearly basis because so many younger people don’t want to work physically hard or, work even a little in a harsh environment. The Boomer generation is the last generation that would work in
      hard blue collar / harsh semi harsh environments.

      1. The only way your people backed down assaulting the Capitol on Jan. 6 was that they didn’t brink tanks, grenades, nukes, etc. You seem to be saying that’s what they should have done in order to “win.”

  8. Sure he could have …… without my mouth….:

    At the least:

    Article IV | U.S. Constitution | US Law | LII / Legal …
    [Search domain law.cornell.edu] https://www.law.cornell.edu › constitution › articleiv
    Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

  9. The answer is: at that moment in time. Rittenhouse about to be killed ACTED IN SELF DEFENSE; can act with anything.. The gun he could reach; a large rock; a hubcap; a machine gun; an RPG; IN SELF DEFENSE; at that moment in time.

    Unlawful weapon would apply if police stopped him earlier; before events of SELF DEFENSE.

    1. Michael, you seem to be saying that his holding a gun didn’t create the situation where someone else was aiming at him. Do you really think that his life would have been in danger if he had showed up without a weapon?

      To me, the kid’s story reeks. What the hell business did he have being there with a gun?

      1. I see you crossed the street. What business did you have crossing the street? Do as you are told.

        “To me, the kid’s story reeks.”

        Get a seeing eye dog. The videos show what needs to be shown. The people shot were the attackers. Rittenhouse defended himself.

        Take your toy plane and fly it into the sun.

      2. His business… he was legally allowed to be there, and legally allowed to carry. He had/has as much right to be there as anyone seeking to protest that was also carrying weapons… with the following distinctive difference.
        A rifle carried on a sling, can not be concealed… a pistol can. Open carry is legal, concealed carry is not without a permit. Ie. The supposed victims in the event that carried had expired carry permits, they needed to be charged.
        The open carry of the rifle is not a crime or misdemeanor offense. Those there burning things, destroying things, were no longer protesters acting legally, but were rioters acting illegally. Rittenhouse had more right to be there then they did. Was it a smart thing to do is another question entirely, but then as leftist press all last year showed, stupidity is not a criminal offense.

  10. Thank you, Professor Turley, for your lucid analysis of Wisconsin’s laws regarding firearms. Admittedly, the statutes weren’t written with sufficient clarity for lay use (and I would argue even for applications by lawyers). It’s important (and fascinating) articles like this one that make this Blog so good and one that is closely followed by large numbers of people. I doubt that the mainstream media is going to present the facts about the statutes as Prof. Turley has done here. More likely, the mainstream media will conceal the facts to continue their anti-Kyle Rittenhouse narrative. To paraphrase Johnnie Cochran IV, “If the news don’t fit, you must omit.”

    1. @Michael,

      No unrelated charges.
      The issue is that in a clear self defense case, they’ll let the charge slide.
      Prior to McDonald v City of Chicago, there was a Korean War vet who kept his .45ACP sidearm. Under Chicago’s laws, he was to have turned the gun in and merely being in possession of the firearm was illegal.

      He was woken by a burglar who was still outside the house. When he confronted the burglar, the burglar shot thru the glass door, missing him, and then he returned fire killing the burglar.

      He was never charged. (No jury would convict him). So no gun charge… although I think he lost the gun.

      In Wisconsin, the paragraph (c) is poorly worded.
      It was supposed to include SBR and other firearms but seems to supplant the prior bill to only focus on NFA weapons.
      So it gets to how to interpret and its intent.

      The judge could rule that paragraph (c) supplants the prior paragraphs… it was included because Wisconsin changed their gun laws to allow NFA weapons.

      Because of the ambiguity… the charge will most likely be dropped.

  11. Remember when that cop got fired because he donated $25 to Kyle Rittenhouse’s defense fund?

    Now that the facts have come out, where’s that cop go to get his job and reputation back?

    https://www.nbcnews.com/news/us-news/virginia-police-officer-fired-after-donating-kyle-rittenhouse-defense-fund-n1264783

    Lt Wiliam Kelly anonymously donated $25, saying, “God bless. Thank you for your courage. Keep your head up. You’ve done nothing wrong.”

    He was fired, with this statement:

    “Chief Larry Boone and I have concluded Lt. Kelly’s actions are in violation of City and departmental policies,” Chip Filer, the city manager of Norfolk, said in a statement. “His egregious comments erode the trust between the Norfolk Police Department and those they are sworn to serve. The City of Norfolk has a standard of behavior for all employees, and we will hold staff accountable.”

    Egregious comments? Which part? “God bless” or “you’ve done nothing wrong”? Perhaps they wish the pedophile running him down had caught and killed him.

    1. My question is simple. If he did donate in a anonymous manner, how in the hell did anyone, Anyone!! find out who he was? We donated to Kyles fund and we didn’t hide our name. But, we live in the very far part of NW Montana, 5 miles from the Canadian Border. 13 and a quarter miles from the Idaho State-Line. 100% white. And I’m proud of that. Yes I am for my race because my raise even with the few mistakes it made, has built the best places and best forms of free government on our Earth.

      1. Oddly enough, there is a violation in Wisconsin‘s gun laws in which charges can be brought. Mr. grosskreutz was concealing a weapon which he drew and pointed toward Mr. Rittenhouse. Grosskreutz’s license to carry had expired so he was unlawfully carrying a concealed handgun. As such, the argument can also be made that his pointing an illegally possessed gun at Rittenhouse constitutes assault.

        1. Uh, Grosskreutz was a convicted felon, and thus forfeited his right to own/carry any weapons. He may have had a concealed carry license, but that was forfeited when he was convicted…for life. I’m not disagreeing with you, but that makes it sound like some sort of clerical error when he shouldn’t ever have a gun, and I’m sure that was made clear to him numerous times.

          1. Turley, Schroeder, et. al. could use a course in Boolean logic. “Not in compliance with ss. 29.304 and 29.593” means “not in compliance with ss. 29.304 or not in compliance with 29.593.” It would be more clear, however, if it said, “not in compliance with *both* ss. 29.304 and 29.593.”

            1. Dear Anon, You’ve got it backwards. “and” means in compliance with both, not either. Yes, we are in agreement however, the statute and clause could have been written more clearly.
              Just like all those jury instructions… what a nightmare!

      2. 13 and a quarter miles from the Idaho State-Line. 100% white. And I’m proud of that. Yes I am for my race because ….

        Skin color is determined by genes on our chromosomes. We have 46 homologous chromosomes, 23 from each parent. Each chromosome is essentially a long molecule of DNA wrapped around a “spool” (nucleosome) that would have the length of 6 feet if stretched. Every physical trait you see in your neighbor came to be by genes on chromosomes trading information when they unwrapped, had crossing over of chromosomes, separated, came together as newly combined chromosomes and then produced offspring. Assortment of chromosomes is completely random, all chance. Catholic priest, mathematician and scientist Fr. Gregor Mendel is the Father of Genetics and elucidated genetic expression in the 1800s

        People in Africa are dark because their genetics evolved to protect them from UV light. Locale (latitude) determined, in part, genetic expression based on evolutionary pressures. People in Africa today run the entire gamut of pitch black to pasty white. Northern, Southern, Western Africans all show diversity of skin color, aside from the fact that Asians, Europeans, etc all traded goods and genetics with Africans during their visits. In Montana you have people who also run the gamut of whiteness. Throw in Crow and Cheyene Indians and it gets more diverse. I did a medical mission trip in Crow Agency and Billings decades ago and found the variety of people exciting.

        You rants about whiteness are bizarre. As a college graduate and former Capt in Merchant Marine, you come across like a White Supremacist though I doubt you really are. Skin color means absolutely nothing. Nada. It is all based on varying expression of genes. Thats it. Nothing more. Educate yourself before a Crow or Cheyenne Indians scalp you

        Loci associated with skin pigmentation identified in African populations
        https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5759959/

        1. Estovir, he’s just expressing pride in being more likely to get skin cancer than, say, Nelson Mandela or Muhammad Ali, and also in being likely to better absorb Vitamin D from the sun than Mandela or Ali. 🙂

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