On November 19, 2021, Kyle Rittenhouse, who fatally shot two men and wounded another during protests and rioting over police conduct in Kenosha, Wisconsin, was found not guilty of homicide and all other charges by a jury of his peers. After 26 hours of deliberation, the twelve-member jury accepted his explanation that he acted in self-defense. The case had divided the nation and ignited a debate on gun rights, vigilantism and the limits of self-defense. At the core of the case is a seventeen year old boy from Illinois who crossed state lines with a semiautomatic rifle to join a racial justice demonstration with the self-described purpose of “helping” the police and providing “medical aid”. Do open-carry laws need to be revisited? Is the deadly use of a firearm in self-defense a proportionate response to being attacked by a skateboard? No matter what social change this may spur, the fact is that Kyle Rittenhouse will no longer face additional criminal liability as his acquittal bars a possible retrial.
However, his possible civil liability for the deaths of Joseph Rosenbaum and Anthony Huber is just beginning. The families are already committed to filing wrongful death suits against Mr. Rittenhouse seeking money damages for his intentional or negligent acts. An acquittal in a criminal trial does not bar pursuing a civil action against the defendant. In fact, the burden of proof for proving wrongful death is lower than that of proving murder or manslaughter. During a criminal case, the prosecutor must prove the defendant’s guilt beyond a reasonable doubt. But, during a civil case, the plaintiff only has to show by a preponderance of the evidence that the defendant intentionally or negligently caused those deaths. This can lead to two different results. You may recall that O.J. Simpson was famously acquitted for the murders of Nicole Brown and Ron Goldman but was later found liable for wrongful death and ordered to pay $33.5 million in compensation to the victims’ families.
After the Rittenhouse verdict, many people turned to social media to express uninformed opinions about what would happen to him next. Among those musings, one of the claims is that self-defense is not a viable defense in a wrongful death suit. Unfortunately for Mr. Rittenhouse’s opponents, that is simply not true and self-defense can act just as much as a bar to civil liability as it can to criminal liability.
Every state has a slightly different version of what constitutes justifiable deadly-force self-defense. Michigan has a comparably stronger self-defense statute compared to most states and generally permits individuals to “stand your ground” under appropriate circumstances without being required to retreat. The Michigan Legislature passed the Self-Defense Act (Public Act 309 of 2006) to codify the state’s self-defense laws into statute:
- “An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:”
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- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” MCL 780.972(1)(a).
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.” MCL 780.972(1)(b).
The use of deadly force in self-defense is not limited to responding to other deadly force, but is also justified against imminent great bodily harm and sexual assault. The Self-Defense Act creates a new substantive right to stand one’s ground and not retreat before using deadly force in certain circumstances where a duty to retreat would have existed at common law. People v Conyer, 281 Mich App 526, 762 NW2d 198 (2008). However, the Self-Defense Act also does not diminish the right to use deadly force in self-defense or defense of others as allowed by Michigan’s common law before October 1, 2006. MCL 780.974. A person can use deadly force in self-defense or defense of others when ALL of the following conditions are satisfied:
- “NOT ENGAGED IN THE COMMISSION OF A CRIME” – A person cannot claim they are using justified deadly force in self-defense if they are currently engaged in a crime when using it. For example, an intruder committing a home invasion cannot claim self-defense if he kills the homeowner when the homeowner was prepared to use a gun and open fire while still inside the dwelling. However, the crime must relate somehow to assault where someone was killed.
- “HONESTLY AND REASONABLY BELIEVES” – Not only must a person believe himself or herself to be in great danger and that the response was necessary to save himself or herself therefrom, but the belief must also be reasonable under the circumstances. People v Doss, 406 Mich 90, 102-103; 276 NW2d 9 (1979). However, an act committed in self-defense but with excessive force or in which the defendant was the initial aggressor does not meet the elements of lawful self-defense. People v Heflin, 434 Mich 482; 502-502; 456 NW2d 10 (1990). “If the defendant’s belief was honest and reasonable, he or she could act immediately to defend himself or herself even if it turned out later that he or she was wrong about how much danger he of she was in,… [considering] all of the circumstances as they appeared to the defendant at the time.” M Crim JI 7.15(3).
- “IMMINENT DEATH/GREAT BODILY HARM/SEXUAL ASSAULT” – A person cannot use deadly force to protect against what seems like a threat of minor injury, but must honestly and reasonably believe there would be imminent death, serious injury or sexual assault. The trier of fact has to consider all of the circumstances to decide if the defendant was honestly and reasonably afraid of one or more of these, including: “the condition of the people involved, including their relative strength, whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant, the nature of the other person’s attack or threat, [or] whether the defendant knew about any previous violent acts or threats made by the other person. M Crim JI 7.15(4).
- “DEADLY FORCE WAS NECESSARY” – The necessity element of self-defense normally requires that the actor try to avoid the use of deadly force if he can safely and reasonably do so, for example by applying nondeadly force or by utilizing an obvious and safe avenue of retreat. People v Doe, 1 Mich 451, 456-457 (1850). Just because a person “may” use deadly force doesn’t mean he “should” use deadly force, for a person is only entitled to use as much force as he or she thinks is necessary at the time to protect oneself. For the trier of fact to decide whether the amount of force used seemed to be necessary, they should “consider whether the defendant knew about any other ways of protecting himself or herself”, but should “also consider how the excitement of the moment affected the choice the defendant made.” M Crim JI 7.15(5).
- “NO DUTY TO RETREAT” – The Self-Defense Act does not modify situations under Michigan’s common law where someone has a duty to retreat before using deadly force in self-defense or defense of others. MCL 780.973. The Michigan Supreme Court, in People v Riddle, 467 Mich 116; 649 NW2d 30 (2002), clarified the common-law principles that apply to the duty of retreat before using justified deadly force in self-defense:
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- “First, a person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor’s failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force.” Id at 119.
- “Second, Michigan law imposes an affirmative obligation to retreat upon a nonaggressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant-referred to at common law as a “sudden affray” or a “chance medley”-is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter.” Id at 120.
- “Third, regardless of the circumstances, one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his “castle,” there is no safer place to retreat; the obligation to retreat that would otherwise exist in such circumstances is no longer present, and the homicide will be deemed justifiable.” Id at 120-121. This is Michigan’s so-called “Castle Doctrine” which has been codified in statute to create “a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under… the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual” when the aggressor is committing a home invasion.” MCL 780.951(1).
A person who is attacked by more than one person (or by one person and others helping and encouraging the attacker) has a right to act in self-defense against all of them acting in concert. However, before using deadly force against one of the attackers, the person asserting self-defense must still honestly and reasonably believe that he or she was in imminent danger of death, great bodily harm, or sexual assault by the particular person that was killed. People v Johnson, 112 Mich App 483, 316 NW2d 247 (1982).
Michigan’s Revised Judicature Act of 1961 was also amended October 1, 2006 to codify in statute that self-defense is a bar to civil liability. “An individual who uses deadly force or force other than deadly force in self-defense or in defense of another individual in compliance with section 2 of the self-defense act is immune from civil liability for damages caused to either of the following by the use of that deadly force or force other than deadly force:”
- “The individual against whom the use of deadly force or force other than deadly force is authorized.” MCL 600.2922b(a).
- Any individual claiming damages arising out of injury to or the death of the individual [against whom the use of deadly force or force other than deadly force is authorized], based upon his or her relationship to that individual.” MCL 600.2922b(b).
Not only is self-defense a bar to civil liability, but a defendant who prevails in a civil suit on a self-defense theory can recover actual attorney fees and costs from the losing plaintiff. “The court shall award the payment of actual attorney fees and costs to an individual who is sued for civil damages for allegedly using deadly force or force other than deadly force against another individual if the court determines that the individual used deadly force or force other than deadly force in compliance with section 2 of the self-defense act and that the individual is immune from civil liability under section 2922b.” MCL 600.2922c.
The consequences of losing a wrongful death suit or another tort claim can be severe monetary damages. You need a skilled lawyer in your corner to aggressively protect your rights and assert all defenses according to law. Presenting a successful self-defense argument requires strong evidence, persuasive testimony and powerful courtroom advocacy. You get one chance to present your case correctly.
If you or a loved one have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
