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Judge Deals Blow To Rittenhouse Prosecutors, Dismisses Gun Charge Ruling Kyle Lawfully Carried AR-15

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Kyle Rittenhouse got some great news today when the judge dismissed a gun charge the prosecutors erroneously tried to hit Kyle with. The court found that Kyle Rittenhouse lawfully carried AR-15 on the night of August 25, 2020 in Kenosha, WI. 

Reporter Will Chamberlain broke it down. He said: “Here’s the relevant Wisconsin statute. It does say that “any person under 18 years of age who…goes armed with a dangerous weapon is guilty of a…misdemeanor.”

“But it has a number of exceptions, including one for minors who are carrying a rifle or shotgun—note subsection 3(c). As I read it, Rittenhouse was under 18, but he was carrying a rifle.So to have violated the statute, he either had to be “in violation of s. 941.28” or “not in compliance with ss. 29.304 and 29.593.”

“Section 941.28 prohibits sawed-off shotguns/rifles. That doesn’t apply.”

Legal scholar Jonathan Turley thinks this is huge. He wrote for Fox News:

“However, the most damaging moment came outside of the presence of the jury when the judge drilled down on the law. He told the prosecutors, “I have been wrestling with this statute with, I’d hate to count the hours I’ve put into it, I’m still trying to figure out what it says, what’s prohibited. I have a legal education.” He added that he failed to understand how an “ordinary citizen” could understand what is illegal.

The problem with the Wisconsin statute is not a problem of pluralization but definition. It is not clear that the statute actually bars possession by Rittenhouse. Indeed, it may come down to the length of Rittenhouse’s weapon and the prosecutors never bothered to measure it and place it into evidence.

“In Wisconsin, minors cannot possess short-barreled rifles under Section 941.28. Putting aside the failure to put evidence into the record to claim such a short length, it does not appear to be the case here. Rittenhouse used a Smith & Wesson MP-15 with an advertised barrel length of 16 inches and the overall length is 36.9 inches. That is not a short barrel.

“Then there is the rest of the statute and ultimately the word “and.” Under Section 948.60(2)(a) (“Possession of a dangerous weapon by a person under 18”), “[a]ny person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.” That makes Rittenhouse guilty, right?

Since there is no evidence that Rittenhouse violated Section 941.28, he presumably must be in violation of both sections 29.304 and 29.593. The defense conceded Rittenhouse was in violation of Section 29.593, which requires certification for weapons. However, he is not in violation of section 29.304, entitled “Restrictions on hunting and use of firearms by persons under 16 years of age.” As the title indicates, the section makes it illegal for persons under 16 to use firearms. Rittenhouse was 17 at the time and the prosecution has not challenged that fact.

If Rittenhouse were convicted on that count, it could face a serious challenge on appeal. Indeed, it is curious is why Schroeder would even submit the count to the jury if it is uncontested that Rittenhouse was 17.

“Rittenhouse is obviously facing other counts. However, on that count, the question comes down to the “and.” To paraphrase Johnnie Cochran from the O.J. Simpson trial, if that clause “doesn’t fit, you must acquit,” he wrote.