Vigilante violence goes on trial

As two closely watched murder trials played out in two different states this past week, juries heard strikingly similar stories: Men took up guns in the name of protecting the public, and when they wound up killing unarmed people, they claimed self-defense.

In one case, Kyle Rittenhouse fatally shot two men and wounded a third in the unrest following a police shooting in Kenosha, Wis. In the other, Ahmaud Arbery, a Black man, was shot after a pursuit by three white men who said they suspected him of a series of break-ins in the neighborhood. In both cases, the defendants claim they were entitled to start shooting because the victims were trying to take their guns.

"In other words, their own decision to carry a gun became a justification to use it, lest it be wrested away from them," said Eric Ruben, a Second Amendment expert at Dedman School of Law in Dallas.

For legal experts such as Ruben and others, these two cases expose deep fault lines in the legal and moral concept of self-defense, a doctrine that is particularly cherished in America but ill-equipped to handle an era of expanded gun rights, growing political extremism, violent threats and a strong vigilante strain, all in a country where the perception of threat is heavily influenced by race.

"The problem is that with a citizenry armed with guns, we have blurred every line," wrote Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that a potent mix of "stand your ground" provisions and citizen's arrest statutes have given people license not just to defend themselves but to go after others. "What is defense? What is reasonable? When may one stand one's ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?"

Generally, the law provides a right to self-defense when people reasonably believe there is an imminent threat of harm, whether or not that belief is correct. For example, it may be reasonable to mistake a realistic prop gun for a real gun.

But most laws say someone cannot claim self-defense if that person was the "initial aggressor" — in other words, if the person provoked the encounter that led to the use of force or was doing something illegal at the time. Initial aggressors may regain their claim to self-defense if they try to withdraw or back away from an encounter. And initial aggressors must actually pose a threat of imminent harm.

In the Arbery case, the concept of initial aggressor is complicated by the claim by the defendants — Gregory McMichael, his son Travis McMichael and their neighbor William Bryan — that they were pursuing Arbery in an attempt to make a citizen's arrest and that he was shot only after he tried to grab one of their guns.

Lost is the voice of Arbery, who conceivably would have had his own self-defense claim.

"Why is it that the perception is that if Ahmaud Arbery would have complied rather than reached for the gun that he would have lived, and therefore it was incumbent on him to comply?" asked Darrell Miller, a Duke University law professor and co-author of a recent paper on the inadequacy of self-defense laws. "Why isn't the framing that Ahmaud Arbery had three guys, who he didn't know what their intentions were, rolling up on him with guns?"

Over time in the U.S., the tendency has been to expand the right to claim self-defense rather than protect those who may be harmed by misjudgments and mistakes. Castle doctrine laws — also known as "make my day" laws — give people in their own homes the presumption of self-defense if they harm an intruder. The "duty to retreat," a mainstay of self-defense theory, has been eroded by "stand your ground" laws that do not require retreat for people who are in a place where they have a right to be, such as a public protest.

In many states, the burden of proof has shifted from requiring defendants to demonstrate that they acted in self-defense to requiring prosecutors to show that they did not. A new law in Utah gives defendants, except those charged with attacking a police officer, the right to request a special hearing in which prosecutors must prove that the accused was not acting in self-defense.

In the trial of George Zimmerman for the killing of Trayvon Martin, a Black teenager, in a gated Florida community where he was visiting relatives in 2012, prosecutors argued that Zimmerman should be considered the initial aggressor. Zimmerman had identified Martin as suspicious and followed him in his car and on foot before Martin knocked him to the ground. The jury disagreed and acquitted Zimmerman.

In that case, only Zimmerman was armed. But who is the "initial aggressor" when two armed strangers face off?

On the evening at issue in the Kenosha trial, Rittenhouse, now 18, was armed with a semi-automatic rifle that he was not old enough to buy. After he shot and killed a man who he thought was trying to grab his gun, as well as a man who hit him with a skateboard in an apparent attempt to stop him, a nearby paramedic named Gaige Grosskreutz put his hands in the air.

At that point, Grosskreutz testified this past week, he thought Rittenhouse reracked his rifle and "wasn't accepting my surrender."

Grosskreutz then pointed his handgun, which he had with him even though his concealed-carry permit had expired, toward Rittenhouse, who then shot him in the arm.