What a mess this case is turning out to be.

Read this post from yesterday as background before proceeding or you’ll be lost. The Times sifted through some of the same video clips I did and came to a conclusion about something that I missed. The first gunshot heard in the new famous clip of Kyle Rittenhouse shooting a man in hot pursuit of him did *not* come from Rittenhouse’s gun, they believe.

While Mr. Rittenhouse is being pursued by the group, an unknown gunman fires into the air, though it’s unclear why. The weapon’s muzzle flash appears in footage filmed at the scene.

Mr. Rittenhouse turns toward the sound of gunfire as another pursuer lunges toward him from the same direction. Mr. Rittenhouse then fires four times, and appears to shoot the man in the head.

I’m less sure than the Times is. Something moves at the frame’s left edge but I can’t tell if it’s a muzzle flash or just someone passing in front of the police lights.

The muzzle flash of the first shot by the unknown gunman and the smoke rising from the handgun can be seen in this video capturing the first shooting from a different angle. pic.twitter.com/ddRjsgiMN7

— Christiaan Triebert (@trbrtc) August 27, 2020

Here’s another angle. The first gunshot comes at 0:06 in this one and Rittenhouse starts firing at 0:09.

First death of #Kenoshaprotest shooting, two angles. #Kenosha #KenoshaUprising pic.twitter.com/gS8ezsaAdu

— Anonymous Operations (@AnonOpsSE) August 26, 2020

The first gunshot sounds similar to the shots fired by Rittenhouse. If it was fired by someone else, they can’t have been very far away. But on the right-hand side of the second clip above, it looks like Rittenhouse has his back to the man in pursuit when the first shot is fired. That makes it unlikely that he was the one who fired it — unless he was firing a warning shot in hopes of scaring the guy off.

Something also appears around Rittenhouse in the the right-hand view right around the time the first shot is fired. It could be smoke from his muzzle, suggesting that he fired the shot after all. But as I watch the clip more, I see it a split-second before we hear the noise of the shot, not after. I think maybe it’s just something in the backdrop.

Why does any of this matter? Because: If the first shot was fired by someone else, Rittenhouse may have heard it and believed that it was fired by the man pursuing him. His self-defense claim suddenly looks stronger. Whereas if Rittenhouse himself fired that shot, his belief that he was at risk of serious bodily harm from the guy gets weaker. Sean Trende’s right:

Legally speaking, this is not as much of an open-and-shut case as it appeared yesterday AM. The defense will likely center around a self-defense argument. As of last evening, I thought that argument would fail. He might have had it for the second/third shootings 2/

— Sean T at RCP (@SeanTrende) August 27, 2020

This random gunshot right before he opens fire the *first* time complicates things. His defense now likely becomes that he was being pursued/retreating, heard a gunshot nearby, thought he was being fired upon, and returned fire. 4/

— Sean T at RCP (@SeanTrende) August 27, 2020

He’s right about this too, though:

Still a lot of unanswered questions! Why was he being chased? Had he discharged his weapon on rioters, and that’s why he was being chased the first time? Is there going to be a lot of evidence about him telling people he wanted to kill a bunch of protestors before he went up? 5/

— Sean T at RCP (@SeanTrende) August 27, 2020

Was the guy who was chasing him just hulking out and looking to kick the ass of one of the militia kids who showed up in town? Remember that other video taken that night apparently caught him beforehand taunting the guys with guns, daring them to “shoot me, n*gga.” Or did Rittenhouse threaten him or others before the fatal shooting, leading the guy to chase him and try to disarm him? Who’s the real aggressor here?

Rittenhouse was charged with first-degree murder, which I assume means “first-degree intentional homicide” under Wisconsin law. (There’s also “first-degree reckless homicide,” but that’s typically known as manslaughter.) Intentional homicide is defined as causing ” the death of another human being with intent to kill that person or another.” Did Rittenhouse intend to kill the man in pursuit or just stop an imminent attack? There are also mitigation factors under the statute; importantly, if Rittenhouse presents evidence of any of these at trial, it’s up to the prosecution to prove that the facts *don’t* support mitigation. The defense doesn’t need to prove that they do.

(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.
(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).

Note well: Even if Rittenhouse succeeds in claiming one of those, that doesn’t mean he walks. It simply means that the charge is reduced to second-degree intentional homicide. The key part in subsections (b) and (c) is the idea that the defendant’s belief was unreasonable under the circumstances. (This is known as “imperfect self-defense” under common law.) If the jury decides that Rittenhouse sincerely believed he was in danger of great bodily harm from the pursuing man but that that belief was unreasonable since he had a rifle and the pursuing man didn’t, then they could convict him of murder two under this. The mystery of the first gunshot may come into play here. “I thought the man chasing me fired at me!” Rittenhouse might say. It’s reasonable that that would put him in fear of his life — but since the man chasing him wasn’t the one who actually fired, it becomes unreasonable.

Of course, the jury might find that it was reasonable for Rittenhouse to fear that the pursuing man would do great bodily harm to him anyway, either by beating the hell out of him or by seizing his gun and using it on him. That’s self-defense. If he can prove that, he walks:

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

The section on “provocation” is relevant here too, though:

A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

Rittenhouse *was* engaged in unlawful conduct. He was carrying a rifle at age 17. In Wisconsin, you need to be 18 to do that. Having a guy wandering around a tense scene carrying a gun unlawfully certainly could be seen as likely to provoke others. But, so long as Rittenhouse believed reasonably that he was being threatened with great bodily harm, he can still claim self-defense if he can show that he tried to avoid the confrontation. Which, arguably, he did here. He ran from the man in pursuit, at least at first.

What’s confounding about this case for a jury is that Rittenhouse never should have been there. He wasn’t an adult defending his business in Kenosha, or even the child of a local business-owner protecting the family’s livelihood. He lives in Illinois. He went looking for a fight. Two people are dead because of it. Dana Loesch, one of the country’s most famous Second Amendment activists, is aghast that an underaged kid was wandering around with an AR-15 at the scene of a riot:

Why the hell was a 17 year-old out on the streets at night during a riot? I’m not asking this as a Second Amendment advocate, I’m asking this as a mother who is also a Second Amendment advocate. I see his 17 year-old age as the immediate issue. He’s one year off from even being old enough to serve his country in battle. My teenage son is more proficient in firearms than most adults and an excellent marksman (to the point where he helps manage the range when we’ve taken large groups with us to shoot) but I can guarantee you that there is no way in hell I would ever allow my minor offspring in the street at night during a violent riot. Was Rittenhouse protecting his family’s business and they were short on people to help? I want to understand this. I also bring it up because depending on how aggressive the prosecutor is in this case, I’m curious as to whether or not they’ll try to lob charges at the parents.

The prosecution will end up telling the jury that if they let him off scot-free, it’s an open invitation for militias to show up anywhere there’s unrest in America and start intimidating locals with guns. The defense will counter that Rittenhouse had every right to be there as a citizen, however ill-advised his decision might have been. Except … that’s not quite true. Not only was he carrying illegally, there was a curfew in effect at 7 p.m. He — and all of the other protesters — were in violation when the shootings happened. How does that play into the eye-crossing calculus about who provoked whom here and whether what happened was “reasonable” under the circumstances?

I think the prosecution’s going to get him to try to plead so that they don’t need to wrestle with all of this. (Which may be why they charged him with the unlikely crime of murder one, expecting that they’d negotiate a lesser sentence.) I don’t know if Rittenhouse, who’s quickly being turned into a folk hero by some on the right, will go along.