The two most watched murder trials in the country are coming to an end and, while they have similarities, one big difference makes different results likely. Last Friday, a jury in Wisconsin found Kyle Rittenhouse not guilty for fatally shooting Joseph Rosenbaum and Anthony Huber and injuring Gaige Grosskreutz during riots in Kenosha in August 2020. Meanwhile, the jury began deliberating Tuesday in the trial of Gregory McMichael, Travis McMichael and William “Roddie” Bryan Jr. for the death of Ahmaud Arbery in February 2020 in Brunswick, Georgia.
The killings at the center of each case were caught on video. A chase was involved in the shootings. And struggle over a gun figured prominently in both cases. Rittenhouse’s shooting of Joseph Rosenbaum and Travis McMichael’s shooting of Arbery bear an especially striking resemblance. In both cases, the man who was shot lunged and attempted to grab the gun away from the man who did the shooting.
The standard for lawful self-defense when using deadly force in both cases requires the shooter to reasonably believe they are at risk of losing their life or suffering great bodily harm. The force used to stop the threat also has to be reasonable. Using a gun against somebody who is attempting to wrestle it away from you generally satisfies those requirements.
That’s largely why Rittenhouse was acquitted. Will it lead to McMichael’s acquittal?
Provocation is the key reason why. McMichael was chasing Arbery down; Rosenbaum was chasing Rittenhouse.
That makes a world of difference. Legally, you can not initiate a fight and then kill somebody when you’ve lost the upper hand. You can’t be the aggressor and then claim self-defense under most circumstances.
Self-defense lawyer John Monroe, who practices in both Wisconsin and Georgia, explained why that distinction is so important. He said videos of the Rittenhouse shooting showed Rittenhouse retreating with Rosenbaum in pursuit and turned to face him only after he’d been boxed in by cars.
“The cases are really very factually different,” Monroe said on The Weekly Reload Podcast. “In the Rittenhouse case, Mr. Rosenbaum was chasing Mr. Rittenhouse on foot and Mr. Rittenhouse ended up being cornered more or less by physical objects so that he essentially ran into a corner, had to turn around, and that’s when Mr. Rosenbaum lunged at him and tried to take his gun.”
He said the Arbery case was almost the exact opposite. If anything, the video in that case suggests Arbery was the one being cornered and the one who acted in self-defense.
“Mr. Arbery was the one being chased,” Monroe said. “He was on foot and he was unarmed. He was being chased by people who were armed and he essentially got cornered by multiple people chasing him. And then it appears that he lunges for the shotgun of the first guy who was aiming at him. So, there’s more of a case there that Mr. Arbery was making a desperate attempt to defend himself because he was being attacked.”
McMichael has attempted to claim his pursuit of Arbery, and ultimately his shooting of the man, was legally justified because he and the others who chased Arbery were trying to conduct a citizen’s arrest. They claim to have believed Arbery had just committed a burglary at a nearby house that was under construction. And, therefore, they were justified in pursuing him, with McMichael only shooting him after fearing for his life due to the struggle over the gun.
If McMichael and his co-defendants are acquitted, it will be because the jury believes that story.
However, there are several serious problems with it. First, we know for a fact that Arbery did not steal anything from the property that day. We also know neither McMichael nor the other two men who joined in the chase actually witnessed Arbery committing any crime at all.
Instead, McMichael’s father saw Arbery running down the street and assumed he must have stolen something from the house because there had previously been burglaries in the area. He told McMichael to grab his gun and they began to chase Arbery as part of an ad hoc posse.
Arbery never threatened McMichael before the confrontation, unlike Rossenbaum, who threatened to kill Rittenhouse. All Arbery did was run away from the men chasing him.
The defense in the case has relied on the idea that Arbery wasn’t in the neighborhood to jog by pointing out he was wearing “khaki shorts, with no socks, to cover his long dirty toenails.” That’s, obviously, less than convincing. It will likely be difficult to convince a jury McMichael had immediate knowledge that Arbery committed a felony before trying to detain him of his own volition before ultimately shooting him.
Race has hung over both of these cases, but it seems unlikely to be the deciding factor in either.
The Rittenhouse shootings happened in the shadow of a riot inspired by a police shooting of a black man who was involved in a domestic dispute. But, Rittenhouse is a white man who shot three other white men. Race played little role in the case other than testimony that Rosenbaum repeatedly used the N-word while shouting at Rittenhouse and others that night.
In the Arbery case, there is the fact that he was black and all of the men who pursued him were white. But, the prosecution has not made that central to the case against McMichael. Instead, they focused on the idea that there’s little reason to believe the men in the cars chasing down Arbery before fatally shooting him were in the right. Even if he had stolen something from that construction site and McMichaels had directly witnessed it, it’s not clear that would make it reasonable or legal to pursue him, surround him, and point guns at him—let alone shoot him.
The jury will ultimately decide those questions. But, don’t be surprised if the Arbery verdict comes out differently from the Rittenhouse verdict.
Stephen Gutowski is the founder of The Reload, which focuses on sober, serious firearms reporting and analysis.