Since the murder of George Floyd in May 2020, there have been widespread protests against systemic racism across the country. While most of these protests were nonviolent, some protesters, either out of frustration or in response to aggressive law enforcement tactics, resorted to violence. At times, the number of protesters overwhelmed law enforcement, which led to rioting, looting, and arson. In many cities, business owners boarded up storefronts, curfews were imposed, and National Guard units patrolled the streets. A few politicians saw these events as an opportunity not to address the well-documented concerns of the protesters but to vilify them and call for a return to “law and order.” This rhetoric gave rise to hastily formed, loosely defined groups of armed vigilantes whose goal was ostensibly to assist law enforcement and protect private property.
Not surprisingly, this led to violent confrontations between groups protesting systemic racism, labeled as rioters by their detractors, and self-styled militias intent on restoring law and order. Protesters engaging in civil disobedience accepted the fact that they could be arrested and that law enforcement was likely to deploy nonlethal force against them. But the presence of armed vigilantes not under the control or direction of law enforcement caused some protesters to fear for their lives and decide that they also needed to arm themselves.
This was exactly the type of chaotic and volatile environment that existed in the city of Kenosha, Wisconsin, on the night of August 25, 2020, when 17-year-old Kyle Rittenhouse shot three people, killing two of them. He was subsequently charged with murder, but he argued that he acted in self-defense, and he was acquitted. Many people felt that because Rittenhouse had strapped an AR-15-style semi-automatic rifle to his chest and deputized himself to patrol the streets of Kenosha, he was nothing more than a vigilante and shouldn’t be allowed to claim that he acted in self-defense.
While the right to self-defense has long been regarded as a fundamental right, how and when you are permitted to exercise that right have expanded gradually over the last century and have grown exponentially over the last decade. Our state legislatures and the U.S. Supreme Court have embraced not only the right to self-defense but also the right to carry firearms to uphold that right.
The Duty to Retreat
The right to use deadly force for self-defense was limited under English common law. Before you could claim that you had a right to use deadly force in self-defense, you had a duty to retreat. You had an obligation to avoid the use of deadly force if possible. The only exception was when someone was in your home—what is referred to as the Castle Doctrine. Someone who awoke in the middle of the night to the sound of the door front being forced open was not required to retreat but could use deadly force to repel an invasion of his or her home.
Slowly, over time, judicial decisions in the United States weakened the duty to retreat. A greater emphasis on individual rights, the lack of law enforcement in rural areas, and the greater lethality of firearms all contributed to this shift. The ability to retreat no longer precluded a finding that someone acted in self-defense, but the person’s decision to use deadly force would only be justified if a jury deemed it reasonable under all the circumstances. The person’s ability to safely retreat would become just one of the factors to consider when the jury passed judgment.
Reasonable but Mistaken Belief
Once there was no longer an absolute duty to retreat before using deadly force, the law focused on whether the decision to use deadly force was reasonable under all the surrounding facts and circumstances. When the law imposed an absolute duty to retreat, to use deadly force only as a last resort, it carried with it the assumption that the threat to your own life was imminent. Once that assumption was gone, the use of deadly force no longer required an imminent threat. Deadly force became justifiable even when you had a reasonable but mistaken belief that someone was going to use deadly force against you.
The issue of a reasonable but mistaken belief in the need to use deadly force arises most often in cases where police officers use deadly force based on their belief that a suspect is armed and is attempting to avoid arrest. In these cases, courts have been extremely deferential to police officers and have referenced the dangerous and challenging nature of law enforcement and the fact that officers must make split-second decisions when upholding the use of deadly force. Courts have made it clear that officers don’t need to see the barrel of a gun before deciding to defend themselves. As critiques have pointed out, this “reasonable but mistaken” standard can foster a shoot-first-and-ask-questions-later mentality. It permits the use of deadly force when a threat is possible but not inevitable.
This “reasonable but mistaken” standard applies to everyone. The same legal analysis that is used when evaluating whether a police officer was justified in using deadly force to apprehend a suspect is used when evaluating whether a protester was justified in using deadly force against an armed counter-protester. In a tense and hostile environment where strangers are wary of one another and are openly carrying firearms, merely reaching in the direction of a firearm could serve as a justification for using deadly force in self-defense.
Stand Your Ground Laws
The most profound expansion of the right to use deadly force has come just within the last several decades and is not attributable to courts or police officers but to our state legislatures. “Stand your ground” laws have entirely done away with any duty to retreat by explicitly authorizing the use of deadly force and preclude a jury from considering whether someone could have safely retreated without resorting to deadly force. Some of these laws even grant immunity from prosecution to anyone who claims they acted in self-defense. The practical effect of such grants of immunity is that a judge must hold a hearing after charges are filed to determine if the defendant is immune from prosecution. If the accused can prevail at the hearing, the charges will be dismissed, and the case will never go before a jury.
Other Limitations on the Right to Use Deadly Force
There are other limitations on the right to use deadly force that create contradictions and complications when we consider how the law should be applied to confrontations between armed groups. One of the limitations on the use of deadly force is that it can only be used to defend people, not property. You can’t shoot a bullet to stop someone from throwing a rock through a window. The law values human life over property; property can be replaced, so taking a life to prevent the destruction of property isn’t permitted. This undercuts the argument made by groups who claim that they are arming themselves to protect private property from would-be vandals.
Of course, there is an argument that openly carrying firearms deters violence and makes it less likely that the person carrying the firearm will be attacked. There is a long tradition of criminalizing carrying a concealed weapon under the theory that it fails to deter violence and that the concealment of the weapon is evidence of an intent to commit another crime, such as robbery. Studies have shown that carrying a firearm doesn’t reduce the chances of a violent confrontation and may actually increase the risks of violence, which further undercuts the argument that the presence of armed vigilantes can effectively deter the destruction of property without simultaneously increasing the risk to human life.
Another important limitation on the use of deadly force is that the person who wishes to claim the privilege of self-defense cannot have provoked the other person into a violent confrontation. Those who say or do something likely to provoke a confrontation cannot use deadly force to defend themselves unless they have attempted to withdraw from the confrontation and have no other option but to use deadly force to protect their own life. The law imposes on aggressors a heightened duty to retreat before they are justified in using deadly force to defend themselves.
Gun Ownership in the United States
While there are more guns than people in the United States, only 30 percent of Americans report that they personally own a gun. So, while a minority of Americans own guns, those who do tend to own more than one, with one study estimating that the average gun owner owns five guns. For many people in the country, the sight of someone other than a uniformed law enforcement officer openly carrying a firearm is cause for concern. Nevertheless, most states permit people to openly carry firearms.
People who openly carry firearms, especially firearms that are more suited to modern warfare than home defense, create confusion for the public and members of law enforcement who have difficulty distinguishing between credible threats to public safety and the exercise of the lawful right to carry a firearm for self-defense. It becomes even more complicated when law enforcement responds to a report of a shooting and needs to figure out if a person carrying a firearm is the reported shooter or the often talked about but seldom seen “good guy with a gun.”
Armed Vigilantes and the Right to Self-Defense
With all this in mind, does the presence of an armed group of vigilantes constitute a form of provocation that would impose on them a duty to retreat? Some state courts and legislatures have carved out an exception to their disorderly conduct statutes for the open carrying of firearms, an apparent admission that the performative exercise of the right to carry a firearm has the potential to cause a public disturbance. The discomfort many people felt when Rittenhouse was acquitted was tied to the idea that his very presence in Kenosha that night, armed as he was and patrolling the streets to protect other people’s property, is itself a kind of provocation that should limit his right to use self-defense and impose on him a duty to retreat.
Defendants who claim they used deadly force in self-defense also gain an often overlooked advantage at their trial. Self-defense has traditionally been viewed as an affirmative defense. Someone wishing to claim the privilege of self-defense has a burden of production: The defense must produce at least some evidence in support of their argument that the accused acted in self-defense. In most cases, the burden of production is not difficult to meet and is often satisfied through the defendant’s testimony. Once that relatively low burden of production is met, the burden of persuasion shifts to the prosecution. This means that once the defendant has raised the possibility that he or she acted in self-defense, the prosecution has the burden of disproving beyond a reasonable doubt that the accused acted in self-defense.
Because the use of deadly force for self-defense is viewed by courts as a fundamental right, the invocation of that right means that the prosecution must prove to a jury that the accused did not act in self-defense. This can be difficult for the prosecution to prove, especially in cases where there is evidence that the deceased engaged in behavior that could be viewed as threatening toward the accused; it is almost impossible to prove in cases where the deceased was also armed with a deadly weapon.
There is one additional argument that seems to be gaining traction when someone claims that he or she was justified in using deadly force in self-defense. In situations where someone who is unarmed gets into a physical altercation with someone who is armed, the presence of a firearm can be used to justify the use of deadly force, especially when the person who is unarmed is physically stronger than the person who is armed. The person who is armed makes the argument that if they were overpowered by the unarmed person, this person could gain control of the firearm and use it against them. While this argument is highly speculative, Rittenhouse testified at his trial that he fired his first shot in response to someone trying to grab his rifle because he feared that, if this person were to take the rifle, he would use it against Rittenhouse.
Police officers are taught that in every encounter they have with a member of the public, one of the people is armed because the officer him- or herself carries a firearm. In fact, the Kenosha police officer who shot an unarmed Black man during an arrest, which sparked the protests in Kenosha, justified his use of force by saying that he thought the man was trying to grab his gun. As noted above, Rittenhouse offered the same justification for shooting someone.
For centuries, the right to use deadly force was seen as a last resort, a necessary evil that should be avoided unless there was no other option. Now, our courts and legislatures have decided that a person’s right to use deadly force is an appealing option, one that somehow discourages violence even though states that have adopted stand your ground laws have seen a dramatic increase in shootings. While the common law duty to retreat was rooted in the idea that it was the state’s exclusive responsibility to punish wrongdoing, the law now encourages each of us to act as judge, jury, and executioner.