Bloomberg Law
Jan. 19, 2022, 9:00 AM

The Kyle Rittenhouse Case Revealed a Gap in Gun Laws

Dina Sayegh Doll
Dina Sayegh Doll
Doll Amir & Eley LLP

California recently took a bold step in the gun rights conversation when Gov. Gavin Newson (D) proposed an assault weapons law modeled after the new Texas anti-abortion law. The Texas measure allows private citizens to sue doctors who terminate pregnancies. Newsom’s proposal would allow a similar private enforcement mechanism to limit assault weapons.

It is often said where California goes, the country follows, due to its sheer size and economic force of the state. Progressive laws, including gun control laws, passed in California often become a model that is then adopted by other states to follow.

Deficiency Revealed

Considering this influence, California should make another bold move in the gun control conversation by filling a gaping hole in our gun laws revealed in the Kyle Rittenhouse trial. Lawmakers should make it a felony to carry a weapon in public during a curfew. Should a death result in such a scenario, prosecutors could then use the felony murder rule to hold the killer accountable.

The Rittenhouse trial illustrates the problem with our current gun laws. Rittenhouse, then 17, traveled to Kenosha, Wis., during a curfew in 2020. He used a rifle to protect used car lots. When he left private property, he killed two and injured a third.

Gun rights advocates saw Rittenhouse’s acquittal as a vindication of the Second Amendment. Gun control supporters saw it as a miscarriage of justice given Rittenhouse’s decision to inject himself into the chaos.

Both sides framed the issue around the gun, but the gun wasn’t relevant to the verdict. The judge dismissed a single weapons possession charge before the jury deliberated. Instead, the jury considered a basic, nonpolitical issue: Did Rittenhouse act in self-defense?

Under Wisconsin law, the jury had to consider only whether Rittenhouse reasonably believed he needed to protect himself using lethal force.

Addressing the Gap

The acquittal revealed a gap in the law that California should address.

Rittenhouse exacerbated an already volatile situation by bringing his AR-15 into a curfew zone. A curfew is imposed by a state or local government when officials believe that restricting public access to a particular area is necessary to protect life or property. Curfews are rarely enacted; they are official acknowledgments that a locale is facing an emergency.

It is a misdemeanor to violate a curfew in California. With some exceptions, it is also a misdemeanor in California to carry a weapon, whether open or concealed, in public.

California should make it a felony to carry a weapon in public where a curfew prompted by civil unrest is in effect. Such a measure makes sense from a public policy perspective. The authorities already would have limited the public’s freedom of movement and assembly in a dangerous area. Bringing a weapon into such an already dangerous area increases volatility, as the Rittenhouse case illustrated.

This new law should apply only to public areas and property and not to private property or vehicles within the area under the curfew order.

Felony Murder

Making the act a felony is justified. If a person brings a weapon into a curfew zone, he or she has committed two lesser crimes: violating curfew and carrying a weapon in public. Plus, a felony is appropriate for crimes that result in serious physical harm or the threat of serious physical harm. Bringing a gun to a riot qualifies as a serious threat to others, including to law enforcement officers.

Classifying the proposed crime as a felony also would have the benefit of giving prosecutors the ability to invoke the felony murder rule should a death occur. The felony murder rule applies to “inherently dangerous” crimes.

A valid curfew can only be declared over an area so dangerous that a lockdown is necessary, and California has already decided that the possession of a gun in public can be dangerous. Therefore, any newly created felony involving curfews and guns would arguably be classified as inherently dangerous because the underlying acts are already classified as such.

Once a prosecutor is allowed to use the felony murder rule, intent and self-dense no longer apply. Because a defendant created the inherently dangerous situation, they are liable for the resulting death regardless of whether they intended to kill the person.

The situation is the same in a bank robbery, for example. Robbing a bank is inherently dangerous, so anyone who commits that crime is liable for a death that results during the commission of the crime, even if the robber never intended to kill that person.

California should change its laws to prevent gun fights in the streets and make it a felony to carry a weapon in public in an area that is under curfew due to civil unrest. This will result in safer streets for the public and law enforcement and give prosecutors the tools to apply the felony murder rule to any resulting deaths.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Dina Sayegh Doll is an attorney, legal analyst with the Law & Crime Trial Network, and a delegate to the California Democratic Party. She practiced law at Gibson Dunn & Crutcher LLP before co-founding the firm Doll Amir & Eley LLP.