Among the charges in the trial, Kyle Rittenhouse faces a misdemeanor gun charge.
In reviewing the language of the statute, the judge has raised questions about it, claiming it would be hard for an “ordinary citizen” to understand what is illegal.
Under Section 948.60 and part 2a, it reads, “Possession of a dangerous weapon by a person under 18″ and “any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.”
Judge Bruce Schroeder raised the question while covering a motion filed in the case. Schroeder explained that he had “spent hours” with the Wisconsin gun law.
Despite this considerable amount of time, Schroeder still could not state with certainty what it means in this case.
This statement could effectively remove the misdemeanor gun possession count. “The unlawful possession of the gun has been a prominent fact cited not only by the prosecutors but the press,” Fox News reports.
“A close examination of that provision reveals ample reason to question not just its meaning but its application to this case,” the report adds.
George Washington University law professor Jonathan Turley noted there is also subsection (c).
“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.”
In the law, when they put in “and,” they mean it to be construed that way. If you don’t have both, that calls into question whether the provision even applies and whether it can be charged. If it is charged and there’s a conviction on it, it could be thrown out on appeal.
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The question has been even if the jury found Rittenhouse in self-defense and acquitted him as to all the other charges, what about the gun charge? But if they don’t have the necessary elements to fit the gun charge, that might go away, as well.Advertisement
Prosecutor Thomas Binger even appears to be learning about the governing law during the trial.
At one point, Binger asks Rittenhouse why he did not just purchase a handgun rather than an AR-15.
Rittenhouse explained that he could not legally possess a handgun at his age.
In apparent disbelief, Binger seems confused that the law allowed him to have an AR-15 but not a handgun.
Nonetheless, Rittenhouse understood this fact and said yes.
Binger moved on from this line of questioning after surfacing information that seemed to help the defense’s case.
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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.
It is not clear that the statute actually bars possession by Rittenhouse.
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.