Legal analysis of the Kenosha shooting incidents

People always ask me whether I’m a Republican or Democrat, liberal or conservative, and whenever I reply with “neither” they say “then what are you?” And I respond the same way: “A seeker of truths.”

When I see incidents like the shooting incidents in Kenosha, I only care about one thing: finding out what happened, who is responsible, and what the appropriate punishment should be. I don’t view these incidents or similar ones with any type of a tribal slant. So in this post I’m going to examine what we know so far, what can be discerned, and who is responsible, and what punishments should be handed out, analyzed from a legal perspective.

Jacob Blake:

According to the latest reports, the police were called to aid a woman who had reported a confrontation with an ex-boyfriend.  That man was Jacob Blake. This man reportedly had previously sexually assaulted her, she claims several times per reports, and he had a history of violent crime and a warrant out for his arrest. Latest reports state she told the officers how much she feared the man due to their history. The police arrived to intervene and place Blake under arrest. A scuffle broke out between Blake and the officers at some point, a failed attempt to taser him was made, and eventually he proceeded to retreat back to his car as officers pursued with guns drawn pointed directly at him. When Blake reached his car, he opened the door, an officer attempts to pull him back from entering the vehicle, and Blake begins climbing or into the driver’s side, an officer yells something at him, reaches around to the opening, and then fire a reported 7 shots into his back.

Officers are legally allowed to use lethal force if they feel their lives or the lives of civilians are in immediate danger. That doesn’t necessarily have to include a direct attempt of lethal force at the officer. That can include potential outcomes should lethal force by the officer not be used. For example, a civilian being asked to comply, refusing, and reaching into his pocket for an object. The reason for this is, if the officer does not act, the individual could pull out a firearm and kill or wound the officer, and hurt any nearby civilians. The officer’s job is to assess the situation and make the best call that protects his life, the life of any accompanying officers, and nearby civilians. This can, at times, lead to subjectivity, as the assessment on what constitutes a potential life and death situation is one’s own judgement. Generally, officers are trained to de-escalate, and attempt to subdue an individual in a non-violent way before resorting to lethal force.

In the case of Jacob Blake, more information needs to come out to make an official determination. Did he threaten the officers? If he said something like “I’m going to my car to get a gun” or he threatened to injure or kill the officers before opening his car door, then by the letter of the law, they could make a good case their lives or civilians were in danger and lethal force was justifiable. No one knows what Blake said, if anything as of yet.

If the situation played out as currently presented, with nothing said, and described above? That is a tougher call to make from a legal analysis perspective. Blake had a warrant out for his arrest. He has a record of violent acts. That factors in when officers asses the threat of danger in a situation. The question here is could the officers have subdued him in a non-violent way and place him under arrest? A case can be made both ways. They tried to subdue him on the ground previously, and tried to taser him, both which failed. There is an argument to be made that he should’ve been detained on the ground long before reaching his car, however that had already been attempted multiple times. Once, on the physical scuffle on the ground, a second with at least one shot from a taser, and a third trying to grab him and pull him back and preventing him from entering his vehicle. Perhaps another attempt would have been necessary. I personally think their multiple attempts would satisfy any investigating body as they adequately followed procedure before resorting to lethal force. One has to also wonder if the death of George Floyd being pinned on the ground had any impact on these officers’ willingness to subdue the subject on the ground.

Regardless, 7 shots feels like excessive force on the surface. Blake’s back was turned to them, and even if they believed he was reaching for a weapon, or had a chance to be(a knife was recovered) 7 shots may seem extreme to many. However, if they reached the point to where they determined lethal force is justified, they are to do whatever is necessary to neutralize the individual and prevent him from harming them or others. Whether that is one shot or 7 shots. For example, to many, one shot would not be considered "excessive" but one shot to the head can easily be more lethal than 7 shots to the torso. In a matter of a few seconds, the officers have to assess the threat level, if they allow him to get into that car, what is the risk someone else, or them could wind or dead or severely harmed. What if he had a gun in the car? If he is allowed to retrieve a firearm, the lives of the officers and anyone nearby would be extreme danger. Given that he already has a warrant out for his arrest, the more trouble he gets himself into, the less he has to lose, given that jail time is already likely a given.  Given his history of violent crime, the fact that they were in a blind spot and couldn't see into the car, the fact that there were several innocent bystanders in the immediate area, and the fact that there were children in the car; having gone over this incident for several days now, I lean toward them making the right call here in the brief number of seconds they have once he opens that car door and tries to enter.

It is a lean for me right now, it is not a slam dunk. This isn't an armed man with an assault rifle coming out from a bank shooting everything in sight and officers needing to take him down without a second thought. Keep in mind that since he had a warrant for his arrest and they were there to arrest him, had they let him get into the car, the situation would have turned into a vehicle pursuit and potential high speed chase to arrest this man... with children in the car. The biggest question overall to me is not were 7 shots excessive, it's could they have peacefully and restrained him prior to reaching his car without using lethal force?

Legally, this is a somewhat difficult call. This will be a tough one to charge the officers with, and in a court of law would be tough to convict. I think the prosecution and defense could both make strong arguments. The defense could argue that there is a man who has a warrant out for his arrest, already resisted arrest, subduing him had failed, he had a history of violent acts, and tried to enter a vehicle creating a blind spot for the officers. The prosecution could argue that they had him outnumbered, could have found a way to subdue him in a non violent manner, and used lethal force irresponsibly.

Regardless, I think anyone who thinks this is a clear cut case one way or another is not viewing this in an objective way. I don’t believe there is enough information to determine either way as we currently stand, and even as currently presented, there are arguments to be made both in support or against the officers from a legal perspective. The question here is legality, not morality. They stand independent in a court of law, and any charge and prosecution has to prove they broke the letter of the law. Unfortunately, there is no body cam footage, which would’ve provided more evidence, and they definitely should have been on. It would have helped clarify some unknowns one way or the other in this case. I will continue to update as more information becomes available. But as of now, again, I do lean that this was a justifiable use of lethal force. Of course he survived, so this is technically attempted lethal force I guess, though the intent when firing that many shots is certainly to shoot to kill.

Lastly, in case you were wondering, yes, with the warrant out for his arrest, the officers there are obligated to place him under arrest. If not, anyone who could potentially be harmed that day by him would be the responsibility of the police department for not doing their job, and the families of anyone he potentially would’ve hurt could sue the department for untold millions in damages.

Kyle Rittenhouse:

Early information indicates that Kyle Rittenhouse traveled from Illinois to Wisconsin with an AR-15 with the intention of protecting public property that was being vandalized and looted. At some point a confrontation with protestors and/or rioters broke out, an individual chased and threw something at Rittenhouse, he turned around and fired on the individual, hitting him in the head and killing him. After this, nearby people gave chase to Rittenhouse as he fled the area, he was eventually struck with a skateboard, fell to the ground and shot two more individuals, killing one and wounding the other. He was ultimately charged with first degree murder.

First of all, a 17 year old kid is not of legal age to open carry a gun in the states of Illinois and Wisconsin, so that is breaking the law right there, and traveling across state lines with a firearm to defend property that isn’t yours is a no-no, and likely was going to lead to something bad. Do I know what his true intent was? No. No one does. Anyone who suggests they do has an agenda. Maybe he was an immature ramped up teenage kid who wanted to see some action. Maybe he truly just did want to do good. I saw a video of him requesting to offer medical aid on someone who was injured, before the shootings took place. Who knows if that was anecdotal or not. Vigilante justice is not ok. He was not a sworn officer or owner of said property, he doesn’t have the legal authority to protect another's property with deadly force, nor is he of legal age to openly carry a firearm to do it even if it were. He does however have the right to act in self defense if his life was in danger. Was his life in danger? Just like the Jacob Blake case, there is a lot we still don’t know. What happened outside of the recorded footage?  Was he threatened to be killed? Was a gun pointed at him during any of the shootings? All 3 individuals shot had criminal records. Two of them some forms of violent crime and another was a registered sex offender. Yes, this matters, in a different way than the Jacob Blake case. It shows a predisposition to criminality. This was of no significance to Rittenhouse, as he didn’t know these individuals, but it could be used in a court of law to argue that these men could’ve very well had nefarious intent to harm this man, given that they had a criminal background, even if he didn’t know their history.

The biggest question here is, did he act in self defense or did he perpetuate the violence? No one can adequately answer that at the moment until more evidence is gathered. The first shooting is far more important than the other two, as that is the one that sparked the sequence of events, and is more questionable with the currently presented evidence as to whether or not it qualifies as self defense. Remove the first shooting, and being chased by a mob of people and subsequently attacked would qualify for self defense in most situations. As it currently stands, it’s very tricky, just like with the Jacob Blake case. Does chasing someone and throwing a flaming object at them give cause to feeling one’s life is in danger? The jury would have to make that call. The defense could argue that people have been shot and killed in other riots and protests across the country, so an individual being chased with an object has cause to fear for his life. The prosecution could argue that throwing an object that didn’t hit him does not qualify as grounds to defend yourself in a lethal manner, and if he could’ve kept running, he would’ve likely been free of any immediate extreme danger.

The first degree murder charge is going to be a tough one to sell in court. They have to prove intent to kill or premeditation. One could argue traveling across state lines with a gun to join a protest/riot is premeditation. Others could argue that he didn’t shoot anyone until chased, attack, or provoked, thus there is no clear sign of any premeditation or direct intent to kill. I personally think any good defense team would be able to convince a jury this was not first degree murder with the current evidence provided. If anything, second degree would have a much stronger case, and even then with an argument of self defense, it would not be a slam dunk.

Personal thoughts:

At a time like the present, sowing division and discord through propaganda is the last thing this country needs. To see journalists and news outlets cast Rittenhouse as a “white supremacist” when there has been no evidence of such and even the Anti Defamation League says through examining his social media they’fe found no evidence of radicalization is both irresponsible and divisive. It’s pushing an agenda to create a narrative that doesn’t exist.

The people most responsible for these events and ongoing madness in other cities are at the top. Our nation’s governors and mayors are not doing enough to quell violence and destruction and keep their citizens safe. They’re mandating law enforcement hold back and creating a culture of lawlessness. The only thing proven to ever come from lawlessness since the beginning of time is death, destruction, and chaos. And that’s exactly what you’re seeing in these cities. Several people were killed in the confines of Chaz earlier this year, and already at least 2 people have been killed in Kenosha. Dozens have been injured in Seattle and Portland. This is futile leadership. And we need strength at a time like this. We need crackdowns and we need them yesterday, or more innocent lives are going to be lost.

Did either of these people deserve to die or be severely wounded? No. Few people deserve to die. The question here is were the actions legally justified or not. As it currently stands, I believe there are strong cases for either side of these incidents, and that isn’t always the case. Until more information comes out, and don’t know the full story, it’s impossible to speak in absolutes. Unfortunately, many people have already made up their mind about these cases. Emotionally driven by social media video, which neither provides context or a full story. Through emotion, logic is lost, and we need thinking right now more than ever.