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Judge tosses gun charge ahead of closing arguments in Rittenhouse trial

The 18-year-old protest shooter now faces five felony charges, including first-degree intentional homicide, after the judge dismissed charges of illegal firearm possession and violation of an emergency curfew.

KENOSHA, Wis. (CN) — The judge presiding over the trial of Kyle Rittenhouse on Monday dismissed the gun charge the teen faced for being underage while publicly carrying the semiautomatic rifle he used to kill two and injure a third at a Kenosha, Wisconsin, protest last year, leaving five felonies for the jury to deliberate over after closing arguments.

Kenosha County Circuit Court Judge Bruce Schroeder – who has drawn scrutiny and criticism for some of his actions during the high-profile trial – began jury instructions Monday morning by telling the jurors not to consider the misdemeanor gun charge Rittenhouse faced for being under 18 when possessing the AR-15 he wielded on Aug. 25, 2020, the night of the shootings.

Rittenhouse’s defense attorneys, Corey Chirafisi of Madison and Mark Richards of Racine, have long argued a loophole in the confusingly worded Wisconsin gun law relevant to the case allowed then-17-year-old Rittenhouse to possess the AR-15 in public because it is not a short-barreled rifle or shotgun.

The state, led by Assistant Kenosha County District Attorneys Thomas Binger and James Kraus, unsuccessfully countered that such an exception only applies to minor teens who are hunting and have proper hunting certification. Kraus reiterated Monday ahead of jury instructions that the defense’s interpretation “essentially swallows the whole statute.”

Schroeder sided with the defense, reestablishing for the record that he has problems with the statute’s wording. The move comes after Schroeder last week dismissed a charge for violating an emergency curfew in place the night of the shootings.

Prosecutors have charged Rittenhouse with first-degree reckless homicide for killing Joseph Rosenbaum, 36; first-degree intentional homicide for killing Anthony Huber, 26; and first-degree attempted intentional homicide for injuring Gaige Grosskreutz, 28. He is also charged with two counts of recklessly endangering safety with a dangerous weapon for firing two shots at an unknown man who kicked him while he was on the ground and for pointing his gun in the direction of Richie McGinniss, a videographer for the Daily Caller in the line of fire when Rosenbaum was shot.

Lesser included offenses like second-degree homicide were included in the jury instructions at the request of prosecutors. Rittenhouse's attorneys have argued self-defense on all the charges, saying their client shot while being chased and attacked by a crowd of protesters after fatally shooting Rosenbaum, who they say chased and threatened to kill the defendant.

On the morning of Aug. 25, 2020, Rittenhouse, then 17, came from spending the night at his friend Dominick Black’s house in Kenosha to clean up graffiti from protests that raged for several days in the southeastern Wisconsin city after Jacob Blake, a 30-year-old Black man, was shot seven times by a white Kenosha police officer responding to a domestic disturbance.

Rittenhouse – who lived at the time with his mom and two sisters in nearby Antioch, Illinois, but worked at a recreation facility near Kenosha as a lifeguard – returned to the unrest with Black later that evening. His plan was to protect property and administer first aid to those in need, and he ended up defending three used car lot properties with several other individuals, some who testified they were gratefully given permission by the owners’ sons after one of the lots was damaged by arson the previous night.

The teen was armed with an AR-15 rifle which Black, then over 18, had to buy for him in Wisconsin because Rittenhouse could not do so legally. They kept the gun at Black’s house in Wisconsin because Rittenhouse could not legally take it back to Illinois with him. Other individuals guarding the used car lot properties on Aug. 25 wore body armor and were similarly armed with rifles and pistols.

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The initial days of unrest in Kenosha in August of 2020 turned violent and volatile at night, resulting in riotous clashes between demonstrators and law enforcement and the damage and arson of dozens of cars and businesses.

Rittenhouse – who falsely told multiple people that night he was an EMT – got separated from the used car lot group and found himself alone in conflict with Rosenbaum. He shot Huber and Grosskreutz from the ground while tussling with protesters during his run toward a police line after shooting Rosenbaum.

In his closing statements, Binger posited video evidence shows Rittenhouse provoked Rosenbaum by pointing his gun at him, far from his stated goal of protecting private property and administering first aid, saying “you cannot claim self-defense from a danger you create.”

The state’s attorney said a reasonable person would not think those trying to take Rittenhouse’s gun wanted to use it against him, including Huber, who he referred to as heroic. People chasing Rittenhouse believed he was an active shooter, Binger said, in part because Rittenhouse did nothing to demonstrate to the crowd he was no longer a lethal threat.

Binger harped on the teen’s self-defense claims relying on Rosenbaum’s threats to kill, which Rittenhouse and at least one other witness testified to. The prosecutor pointed out that threat is not in any of the multiple videos shown to the jury from that night, and he speculated it never occurred.

The defense is hypocritical in saying other armed people, like Grosskreutz, were threats to Rittenhouse but he was never a threat to others with his AR-15, Binger added.

“There’s no exception in the law for Kyle Rittenhouse,” he said.

There is no question Rittenhouse killed people, Binger said. “The question is: does he get a pass?”

“No reasonable person would have done what the defendant did,” he concluded.

Richards noted during his closing statements that Rittenhouse’s supposed provocation was never a part of Binger’s case until Monday, “but when his case explodes in his face, now he comes up with provocation.”

The provocation angle, Richards asserted, was concocted via late-arriving aerial photographs from an FBI analyst witness for the state manipulated to make it look like Rittenhouse pointed his gun at Rosenbaum before the latter charged him.

Referring to the amount of time the analyst spent working on the image, Richards said “what he did for those 20 hours is hocus pocus and he made an exhibit that is out of focus.”

Richards disputed Binger’s characterization of Rosenbaum as mouthy but diminutive and harmless, recalling multiple witnesses’ depiction of him as erratic and aggressive.

The defense attorney blasted “all of the lies and untruths that have been put out in the media” about his client and the shootings, leading to a “a rush to judgment.”

He took aim at Grosskreutz for allegedly lying to police about being armed and to the jury about when he had his gun pointed at Rittenhouse, saying he has “10 million reasons to lie,” a reference to his pending civil rights lawsuit against the city and county of Kenosha.

Richards accused Binger and the district attorney’s office of railroading Rittenhouse because they need someone to blame. He again stated that the video evidence shows all of Rittenhouse’s shots were self-defense by a 17-year-old acting reasonably given the chaos and threats around him.

“Kyle was not an active shooter. That is a buzzword that the state wants to latch onto because it excuses the actions of that mob” that night, Richards said.

Rittenhouse only shot at imminent threats, the totality of the events surrounding the shootings took less than three minutes and the actual shots occurred in either seconds or fractions of seconds, the shooter’s attorney said.

“There are no winners in this case. But putting Kyle Rittenhouse down for something he was privileged to do will serve no legitimate purpose,” the defense attorney concluded.

The jury will convene and begin deliberating Tuesday morning at 9 a.m.

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