Why The Gun Charge in the Rittenhouse Case Could Be Dismissed – Opinion

Yesterday, I was able to write about some of his decisions regarding the lesser charges in the Kyle Rittenhouse trial. It was clear that the prosecution recognized that it might be difficult for them to get a conviction against some of the most serious charges. They wanted to improve their chances of getting one.

Another important decision that was made by the judge regarding jury instructions was the allowance of an instruction about provocation. This allowed the jury to consider whether Kyle Rittenhouse caused the entire action to begin, pointing a gun towards someone. It was a defense argument that the defendant was describing what happened in a blurred photo, which was hard to discern. This could however, lead to the end of the case. According to Wisconsin law, the jurors can decide whether he caused the incident. I explain this last night.

But while that decision by the judge didn’t go well for Rittenhouse, there’s another question that might help him. Apart from the charges involving the shootings — on which Rittenhouse may be acquitted if the jury finds he acted in self-defense —  there’s a misdemeanor gun charge. The judge raised a question about the language of the statute said it would be hard for an “ordinary citizen” to understand what is illegal.

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.”

But as George Washington University law professor Jonathan Turley observed, there’s 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.”

There is no evidence Rittenhouse has violated Section 942.28, so he must have been in violation of sections 29.304 and 29. 29.593. According to the defense, Rittenhouse violated Section 29.593 which mandates certification of 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, who was 17, at the time of the incident has not been challenged by the prosecution.

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.

However, even if Rittenhouse is found guilty of self-defense and the others are acquitted, the question remains: What about the gun charges? But if they don’t have the necessary elements to fit the gun charge, that might go away, as well.

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