In all states of which I am aware, a person may not use deadly force in self-defense, if they provoked the attack with the intent of using deadly force.
It is not legal to start a fight so the person who started the fight can kill someone who they provoked.
Mere possession of an openly carried weapon is not a legal provocation to attack.
The Left has been floating the idea that mere possession of a weapon is a provocation. They contend the sight of someone in possession of a weapon is sufficient provocation for a person to attack the person who possesses the weapon.
This creates a bizarre world where mere open possession of a weapon is sufficient to justify a deadly attack on the possessor. Apply this to the police. They almost always carry a deadly weapon, openly.
This concept is contrary to common sense and the experience of thousands of years. If a person has a weapon, people see a reason to leave the armed person alone. In the Kyle Rittenhouse incident, the prosecutor, ADA Binger, during a pre-trial hearing, said this:
“He was running around with a assault rifle type weapon, a very threatening, aggressive weapon. One that deters people, it is designed to deter people. It is designed to threaten others; to let them know, don’t mess with me, look what I’ve got.”
During the trial. Binger did not claim mere possession of a firearm was a provocation to be attacked, although he hinted at it. He claimed, on the basis of very fuzzy drone footage, that Kyle had momentarily pointed his rifle at two other people, and that was a provocation for a third person, Rosenbaum, to attack Kyle. The jury did not accept this theory.
In a sane world, carrying a weapon is not a provocation to be attacked. The Left has worked hard to make it a provocation, in law. In an editorial about open carry in 2012, there was this; from usnews.com:
It is appropriate for law enforcement officers and the public to treat these situations as extremely dangerous. Open carry advocates claim they need a gun for self-defense. However, if the Trayvon Martin case has taught us anything, it is that an individual carrying a gun may misjudge a situation, think self-defense is called for, and erroneously—and often tragically—reach for the gun.
A jury decided the usnews.com editorial writer’s portrayal of the Trayvon Martin case was erroneous. It was Martin who attacked George Zimmerman. It was Martin’s judgment that was faulty, not Zimmerman’s.
Here is an opinion published in The Hill, in November of 2019, before the Kyle Rittenhouse trial. The opinion is discussing the Wisconsin disorderly conduct law. From thehill.com:
The text of its disorderly conduct law criminally bans “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.” But absent a showing of “criminal or malicious intent,” a person may not be charged with disorderly conduct “for carrying or going armed with a firearm . . . without regard to whether the firearm is loaded or the firearm . . . is concealed or openly carried.”
Think about that. Being publicly “violent” or “abusive” is a potential crime in Wisconsin — unless it entails waiving around a loaded firearm.
The argument is false. The law does not allow being publicly “violent” or “abusive” simply because a person has a firearm. It states a person may not be charged with disorderly conduct for merely carrying or possessing a firearm or knife. Here is the relevant passage:
Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, a person is not in violation of, and may not be charged with a violation of, this section for loading a firearm, or for carrying or going armed with a firearm or a knife, without regard to whether the firearm is loaded or the firearm or the knife is concealed or openly carried.
This correspondent followed what led to the passage of this Wisconsin law. In 2008 Brad Krause was planting a tree in his yard. He had a holstered pistol on his hip. He was charged, in Wisconsin, by West Allis police, with disorderly conduct. He fought the case. He won. From jsonline.com:
West Allis – As Brad Krause planted a tree in his yard last summer, a neighbor noticed that in addition to a shovel, Krause had a tool not usually required for yard work – a gun in a holster.
Police arrived and gave Krause a ticket alleging disorderly conduct, launching a case that a national gun-rights group has been watching for months.
On Tuesday, Krause won acquittal in what some advocates say is one of the first so-called open-carry gun cases heard in a Wisconsin court.
Municipal Judge Paul Murphy said he had reviewed several state statutes and court cases related to the right to keep and bear arms. ‘There being no law whatsoever dealing with the issue of an unconcealed weapon or the so-called open carry is why we’re here today,’ Murphy said.
In the end, he determined Krause’s actions did not rise to disorderly conduct and found him not guilty.
Milwaukee Police had been charging people with disorderly conduct for the mere carry of firearms, for decades. The legislature finally had enough and reformed the law to stop the abuse.
Here is a later opinion published on September 10, 2020, from Bloomberg, written by Noah Feldman a former Harvard Law editor:
The trouble begins when you start applying the legal rules to someone in Rittenhouse’s situation, namely, someone who has carried an AR-15-style weapon to what is intended to be a peaceful protest. In a commonsense universe, this act itself would appear to be a provocation.
Yet under Wisconsin law, adults are entitled to carry around their licensed firearms in public places. An open-carry law means that prosecutors would have a tough time convincing a jury that simply carrying an assault rifle counts as a provocation.
As a lawyer, Feldman should have known Wisconsin law does not require a license to openly carry firearms. It never has. Wisconsin law has never forbidden people 16 years old and older, from carrying long guns.
To paraphrase Noah Feldman with a more commonsense observation; the trouble is when you start defining the peaceful carry of a firearm as a provocation. Hundreds of people saw Rittenhouse and many others carrying firearms. Initially, only Rosenbaum decided to attack Kyle Rittenhouse. The person who was supposedly “provoked” was mentally ill Rosenbaum, who was suicidal and who had spent many years in prison.
Rosenbaum had threatened to kill Rittenhouse repeatedly. If there was a provocation, it appears the provocation was Rosenbaum attempting to provoke Rittenhouse to aid in another Rosenbaum suicide attempt.
Three others decided to attack Rittenhouse as he ran to turn himself into the police after he shot Rosenbaum. According to testimony under oath during the trial, the mob was urged to attack Rittenhouse by the same man who had urged Rosenbaum to attack Rittenhouse.
The man who urged the mob to go after Rittenhouse had a checkered police record. The three attackers had multiple police histories and problems with authority. Two of the those attacked Rittenhouse with weapons and were shot by him. One was killed, and the other was wounded. It was all recorded on video, from multiple angles.
The jury did not accept the prosecutor’s theory that Rittenhouse had “provoked” Rosenbaum.
Analysis:
The concept that an openly armed person is a provocation to attack appears to flow from a simple premise on the left: A person doing something a leftist does not like is a provocation to attack them. It is part of the broader philosophical abandonment of the rule of law.
Evidence for this theory exists in the left’s theory of speech from any opponent. Speech from an opponent is considered to be violent, and worthy of attack. Violence, from the left, on the other hand, is considered to be speech.
When leftists surround a car and beat on it; that is not provocation; when leftists shoot at people; it is not provocation; when people the left does not agree with, display weapons; that is considered a provocation by the left.
This is a retreat to tribalism by the Left: Those who agree with us are people; those who disagree with us are the enemy.
Pundit and radio personality Dan Bongino put it this way: Conservatives think leftists are people with bad ideas; Leftists think Conservatives are bad people.
Part of this attitude toward the open carry of weapons by people other than government agents comes from the Left’s worship of government as god. A private person openly carrying a firearm is a direct and obvious statement:
The Constitution means something; the Bill of Rights means something; the power of government is limited.
The Left hates the idea of limits on government. For that reason, gun control is in Progressivism’s DNA.
Defining open carry of weapons as a legal provocation is Orwellian word manipulation.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
