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.”