A Laramie-based judge on Monday denied 28-year-old transgender activist Rihanna Kelver’s request to dismiss a felony case stemming from Kelver claiming self-defense, after pointing a gun at a man in the street outside the Crowbar & Grill.
Through defense attorney Andrew Holcomb, Kelver argued before Albany County District Court Judge Misha Westby last Wednesday that Kelver acted in self-defense when pointing a pistol at Scott Durham, after the latter allegedly yelled anti-gay slurs about the Crowbar, where Kelver worked, on Sept. 13, 2025.
Court documents say Durham yelled “Hey, the Crowbar should be closing, you bunch of f*gs.”
Kelver asked “what the f*** did you just say?” then strode across the street, hand on hip, and approached Durham in the street, according to video evidence and police testimony given in court.
On Kelver’s right hip rested a satchel containing a pistol, the case evidence shows.
Kelver crossed diagonally to Durham, who shoved Kelver to the ground almost in passing and walked past.
Kelver withdrew the pistol, pointed it in Durham’s direction and racked it, according to the video evidence and police testimony.
Durham kept walking, and Kelver soon put the pistol away, gathered some belongings from the street, and walked back toward the Crowbar.
Kelver faces one count of aggravated assault, which is punishable by up to 10 years in prison, another of possession of a deadly weapon with unlawful intent (up to five years in prison) and police interference (up to one year in jail).
Holcomb asked, and Westby has now declined, to dismiss the two felonies.
To rule Kelver justified for the aggravated assault charge, the judge would have had to find, under the law, that a reasonable person in Kelver’s shoes would have felt in imminent danger of death or serious bodily injury.
That’s not what the evidence shows, says Westby’s order.
“While Ms. Kelver did not have a duty to retreat because she was not the initial aggressor, she was not entitled to use deadly force because she was not in danger of imminent death or serious bodily injury,” the order says, “and a reasonable person in like circumstances would not have judged her actions necessary to prevent imminent death or serious bodily injury.”
Westby added, “A shove to the ground in this situation does not equate to a risk of imminent death or serious bodily injury.”
Kelver still can argue self-defense to a trial jury.
At trial, the prosecutor, Albany County Attorney Kurt Britzius, would face a higher burden, to prove guilt beyond a reasonable doubt. That’s nearly double the burden of the more-than-likely proof requirement he cleared Monday.
Kelver is arguably Wyoming’s most outspoken transgender activists, and protested a new Wyoming ban on transgender use of public bathrooms last summer by using the women's bathroom at the state Capitol.
A person with Kelver at the time made sure no females were in the bathroom. That act technically removed any means Wyomingites would have had to enforce the law.
That's because the law doesn't punish transgender people. It subjects the public to lawsuit:
A female aggrieved by a male using the public women's bathroom or changing facility may, under that law, sue the governmental entity for allowing that to happen.
In Court Last Week
The self-defense dispute in this case turned on multiple factors.
Westby ruled in court Wednesday that Kelver showed actions of self-defense, through a “prima facie,” or at-first-glance review of the evidence.
It then fell to to prove by a tougher standard, preponderance of the evidence, that the evidence showed it more than likely that Kelver didn’t act in self-defense.
On that point, Westby hesitated, saying she’d review the points and issue a ruling soon.
Her ruling Monday says Britzius did prove his case against Kelver’s self-defense argument.
Under Wyoming law, a person can defend himself or herself from danger and doesn’t have a duty to retreat. But that only applies if the person has a lawful right to be in the given place, isn’t committing a crime, and isn’t the initial aggressor.
Britzius argued that Kelver was the initial aggressor.
Holcomb had countered, emphasizing that Durham made the first known physical contact in this case. Holcomb also pointed to data showing higher rates of violence against transgender people. And Kelver testified on the stand of past vandalism and attacks on the bar, as well as past threats toward Kelver.
Westby noted Wyoming Supreme Court precedent that “words alone” do not make someone the initial aggressor, and ruled that Kelver was not.
There’s no evidence to counter Kelver’s insistence “that she was in danger of a further attack” when lying in the street, with two or three larger-sized men nearby, ruled Westby.
But the level of force Kelver returned – pointing and racking a pistol toward a man who was walking away – doesn’t pass the reasonable-person test of necessity, added the judge.
The Inconsistencies
Kelver’s court testimony is inconsistent with what Kelver told police the night of the incident.
Initially reported for wielding a gun, Kelver told police repeatedly and insistently that night that it was a knife, not a gun. The gun was in Kelver’s car, the defendant insisted, adding that the knife didn’t even open.
Police searched at length for a knife and never found one.
Kelver’s boss later alerted police to the gun in Kelver’s satchel, which police collected and cleared.
Kelver testified last Wednesday that these inconsistencies were due to a wave of preexisting post-traumatic stress disorder.
Kelver also did not tell police that night that Durham had threatened to harm Kelver, but the activist testified Wednesday that Durham had threatened physical violence.
Kelver claimed in court that Durham said, “I’ll f***ing kill you, you f***ing f*g.”
Westby noted the differences in a footnote. She wrote that Britzius has shown “by the low burden” of evidence that “there are concerns with Ms. Kelver’s recollection of the exact statements made during the event.”
Again, Britzius would have to prove those “concerns” with nearly double certainty if this case goes to trial.
Clair McFarland can be reached at clair@cowboystatedaily.com.
