Prickett: Update on Kenosha

Ed. Note: Greg Prickett is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

There is further information relevant to the situation in Kenosha on more than one front. This deals with both the situation with Jacob Blake and the situation with Kyle Rittenhouse. I imagine that both sides are not going to like what I have to say, not that this will stop me from saying it.

Jacob Blake

During the police response to the scene, officers were informed that Blake was at the scene and was “not supposed to be there.” At the time he had active arrest warrants, and police were reportedly informed of this. The warrants were for third degree sexual assault, criminal trespass, and disorderly conduct.[1] So the police knew that he was wanted for a violent felony, and when they arrived, they attempted to arrest him.

Blake resisted and was tased, without apparent effect. After he was tased, he got up and you can hear police yelling for him to drop the knife. And a screenshot from the original video shows Blake holding what appears to be a Karambit or Hawkbill bladed knife.

So now you have an armed subject who is resisting and not following commands, entering a vehicle which has three children in it. And that doesn’t even begin to address the other issue. At least one site evaluating the shooting states that Blake told the officers that he had a gun in the vehicle, although isn’t yet confirmed. In any event, these factors change how we look at this individual shooting, at least by a lawyer with a police background.[2]

Under the guidelines in Tennessee v. Garner,[3] an officer may use deadly force if:

…it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Now you have police officers who are attempting to arrest a felony fugitive of a violent crime, who is armed, attempting to enter a vehicle with three children, and attempting to either flee or obtain another weapon. You’ve arguably got all of those factors now. That would make the shooting justifiable.

That’s not, of course, going to change the perception of the rioters/protesters.

Kyle Rittenhouse

In the other developments, more has come out about the 17-year-old who killed two and wounded a third on Tuesday. First, I would like to clear up some confusion about Rittenhouse. Wisconsin is like Texas in one critical regard as to trying Rittenhouse. In both states, every 17-year-old is tried as an adult. They are arrested as an adult, held in an adult jail, and tried in an adult court. For the purposes of state criminal law, they are an adult. So Rittenhouse is not going to be handled as a juvenile, nor should he be in this case.

Second, although Rittenhouse will be tried as an adult, he’s not old enough to legally carry a firearm, being under 18 years old. He also won’t face the death penalty, although not because of his age.[4] Wisconsin has not allowed the death penalty since 1853, and only had one execution after becoming a state in 1848.[5]

Rittenhouse apparently only killed two white people, Anthony Huber (on the left) and Joseph Rosenbaum (on the right). He was able to walk out of the area, past law enforcement, despite the fact that witnesses and bystanders were shouting to the police that Rittenhouse had just shot people.

Then Rittenhouse went home to Illinois, where he was subsequently arrested on murder warrants from Wisconsin. He is currently being held in juvenile facilities in Illinois, pending extradition.

And the actual narrative is even more interesting. The New York Times pointed out that there were two bursts of shooting, with video and photos. Rittenhouse was being chased and someone fired a handgun.

Someone, presumably Rittenhouse, returned fire, about 4 rounds. Rittenhouse tried to flee, but then he trips and falls to the ground. Then he is kicked in the head by the guy rolling on the right (after the kick), and he is hit in the head by Huber’s skateboard. Rittenhouse then shot Huber in the chest and the guy with the handgun.

That’s pretty clearly self-defense. And that pretty much trumps everything else. Can they charge him with a misdemeanor for carrying the gun underage? Sure, and I wouldn’t have a problem with that. Can they make a murder charge stick? I doubt it.

Although Rittenhouse carries some blame, so do others. If he was there as part of a group, why did they let him wander off and get separated? Hell, why was he allowed to be there in the first place?

The only thing that is clear is that nothing is ever the way it seems.

[1] In Wisconsin, third degree sexual assault is sexual intercourse without consent, punishable by up to 10 years in prison. The other two are misdemeanors.

[2] And there will be plenty of others that disagree with me, I’m sure.

[3] 471 U.S. 1 (1985).

[4] See Roper v. Simmons, 543 U.S. 551 (2005), which prohibited the execution of those under the age of 18.

[5] The one execution, of a John McCaffary, for the murder of his wife, was in 1850, in Kenosha, and was attended by about 3,000. It did not go well.

40 thoughts on “Prickett: Update on Kenosha

  1. Hunting Guy

    In reading about Mr. Rittenhouse I was reminded about a speech my basic training drill sergeant gave.

    Drill Sgt. Hays.

    “Y’all dickheads are young, dumb, and full of cum.

    This is your first chance to go into town since you got here. If you go looking for trouble it will find you. If that happens, give your soul to God ‘cause your ass belongs to me.“

    1. SHG Post author

      One of the reactions to Rittenhouse has been “play stupid games, win stupid prizes.” It’s not wrong.

      1. Hunting Guy

        What worries me is that for both Rittenhouse and the police officer the justice system will be set for a predetermined outcome just like a rigged carnival game.

        Someone has to be a scapegoat for the destroyed businesses.


        That’s what the three people he shot, allegedly in self defence,figured out.

        And the same could be said for Jacob Blake. Never fight the cops. You aren’t going to win and a beating at best and getting shot and killed at worst is in your future.

            1. delurking

              Newton’s third, of course. The second law only applies in the thermodynamic limit. Duh.

              This is no worse than any law geek joke.

            2. Guitardave

              But…(bad news warning) IMO, I think that as the comment section of the blog is a isolated system, and, if we substitute the word stupidity for entropy, then;
              “Isolated systems spontaneously evolve towards thermodynamic equilibrium, the state with maximum stupidity. “

            3. SHG Post author

              You have a point, and it’s something I fight against constantly lest max stupid take over. It’s not as easy to do as people think, especially when I try hard to let people speak their mind, even when what they say is mind-numbingly fucking idiotic.

            4. DaveL

              Do not go gentle into that dumb night
              Old age should burn and rave at the addled pate
              Rage, rage against the dying of insight

      3. Lex

        “Play stupid games, win stupid prizes.”

        Don Corleone makes a similar point in the book-version of The Godfather:

        “There are men in this world,” he said, “who go about demanding to be killed.  You must have noticed them.  They quarrel in gambling games, they jump out of their automobiles in a rage if someone so much as scratches their fender, they humiliate and bully people whose capabilities they do not know.  I have seen a man, a fool, deliberately infuriate a group of dangerous men, and he himself without any resources.  These are people who wander through the world shouting, ‘Kill me.  Kill me.’  And there is always somebody ready to oblige them.”

  2. Laches

    On the Blake shooting, it’s probably correct that the shooting was legally justified under the Reasonably Scared Cop rule. But what drives a lot of the anger is the sense that cops are far more likely to be “reasonably scared” into using deadly force by black folks than white folks. I’m not sure this is the case I’d pick to go to battle with on that issue. As you noted, there’s more to it than the “police shoot innocent man in the back for no reason” narrative advanced by some of the protesters. But those who have pointed to examples of equally or more dangerous white suspects being taken peacefully have a fair point.

    On Rittenhouse, from what I have read (see e.g. the Milwaukee JS article on the charging documents – no link out of respect for the house rules), Huber went after Rittenhouse after seeing him shoot Rosenbaum and run, presumably to try to stop him from shooting other people – not sure why else a guy armed only with a skateboard would go after a guy carrying an AR-15. I’ll defer to you on whether that would have any impact on Rittenhouse’s self-defense claim.

  3. Corey

    Greg I’m confused about one thing. You state that the police knew that Blake had a warrant out for his arrest, yet the article you link to says that that is unknown at the moment. Does that information then come from a different source you didn’t link to?

  4. Quinn Martindale

    ” Rittenhouse was being chased and someone fired a handgun. Someone, presumably Rittenhouse, returned fire, about 4 rounds”

    That’s not an accurate paraphrasing of the New York Times reporting and omits that Rittenhouse shot Rosenbaum and ran prior to being hit with the skateboard by Huber. Their article from the 27th described the first 4 rounds this way:

    ” Six minutes later footage shows Mr. Rittenhouse being chased by an unknown group of people into the parking lot of another dealership several blocks away.

    While Mr. Rittenhouse is being pursued by the group, an unknown gunman fires into the air, though it’s unclear why. The weapon’s muzzle flash appears in footage filmed at the scene.

    Mr. Rittenhouse turns toward the sound of gunfire as another pursuer lunges toward him from the same direction. Mr. Rittenhouse then fires four times, and appears to shoot the man in the head.”

  5. Keith DeMaggio

    I have criticisms.

    First, Kenosha dispatch had informed officers that Blake was “10-99,” not the character of the warrants.

    Second, it is unclear at this time whether Blake was holding a knife at the time he was tased and subsequently returned to his vehicle. The above-included picture comes from a Facebook post that is now identified as containing false information. There are scant media reports that Blake was holding a knife, instead that a knife was found along the floorboard of his vehicle.

    Nevertheless, eyewitnesses report that officers called out “Drop the knife,” which would likely not change the reasonably scared cop calculation but may change your perceptions of the protestors.

    Third, I generally agree with your analysis of the second killing and third shooting, but your analysis and legal conclusions do not address the first killing of Rosenbaum by Rittenhouse. Rittenhouse shot Rosenbaum prior in time to his altercation with Huber and Grosskreutz (the pistol brandisher who was shot in the arm). Based on media reports, Rosenbaum was unarmed when he was killed by Rittenhouse. I believe a claim of self defense will be more challenging for Rittenhouse w/r/t Rosenbaum.

    1. Lee Keller King

      You are correct. However, there is video or stills showing that Rosenbaum threw a rock (misidentified as a Molotov cocktail) and at least one witness reported that Rosenbaum was attempting to take Rittenhouse’s rifle away from him. In the end, it is a question for the jury, but it is not as cut and dried as some would have us believe.

    2. Jeffrey

      “Based on media reports, Rosenbaum was unarmed when he was killed by Rittenhouse. I believe a claim of self defense will be more challenging for Rittenhouse w/r/t Rosenbaum.”

      Yet Greg Prickett is a former police officer and supervisor who went to law school, says there is a valid self-defense claim? Why? Perhaps because there is no requirement Rosenbaum be armed?

      My understanding of self-defense, using deadly force, requires a reasonable belief that a person is in imminent danger or death or great bodily harm, and that that the use of deadly force is necessary to prevent said harm. Anyone vaguely familiar with recent mobs of this type, and several of the severe beatdowns people have received, while already submissive or incapacitated, would very well be scared. In Kyle’s first encounter, if a 36 year old, with the mentality already shown earlier that evening, that is chasing you, heaving bottles (and bricks if other witness reports are true), upon hearing the first pistol shot nearby in that same parking lot you were trying to escape through, but now feel cornered, having him charge up, full-tilt despite him knowing you are armed, would be legitimately scared of dire results when he reaches you and looks to actually grab the rifle. What if he wrests it from you? My guess, at minimum, is he beats him over the head with it.

      While the subjectivity of “reasonable” and whether a conclusion of “great bodily harm” was warranted, there appears to be much documented evidence so far that a compelling case of self-defense could be successfully argued.

    3. Gregory Prickett

      One other thing on Kenosha PD. The dispatcher will likely tell the officers that the subject is wanted (10-99) on the radio, and send the details over the MDC/laptop. That’s how we did it. It keeps sensitive info off the radio and saves time.

  6. Natalie

    In the same circumstances, I’m confident the police would have shot the similarly-situated white guy. They had reason to fear for their safety and the safety of the children, and it had nothing to do with the color of Blake’s skin.

    Having said that, I do believe there is a systemic bias against black men among police and the community at large. This is just not the case that informs that belief.

  7. John Barleycorn

    Go figure, and here I thought the Open Carry Rifle Badge for “protest” zones was a thing with that the officer safety cadet program Rittenhouse was involved in.

    I noticed he didn’t even pee his pants.

    P.S. when are you CDL’s gonna start a cadet program?

  8. Bob

    It just blows my mind that people accept the idea that Rittenhouse was illegally carrying the gun because they charged him with that. Isn’t that the first thing every defense lawyer tries to establish with jurors, that being accused of something doesn’t mean you’re guilty?

    Read the statute. It disallows minors from carrying deadly weapons, except rifles and shotguns. Rittenhouse was carrying a rifle. The information seems to have been filed on the theory that the exception for rifles is “intended for” hunting, which is absurd. The charges against Rittenhouse are frivolous on their face.

  9. Richard Parker

    I hope this comment is allowed. If not, I understand. Everyone on the street that night was foolish.

    ” . . . more has come out about the 17-year-old who killed two and wounded a third on Tuesday . . .”

    He only killed one person (tragic for all of us) that night. There is clear video showing him running away when the first person killed was accidentally shot in the back by a fellow chaser. He never fired a shot. In fact, he stopped and called 9-1-1.

      1. Richard Parker

        Maybe. I have seen comments that the video I am thinking of is doctored. Maybe, maybe not.

        Hopefully this can all be sorted out in an honest court of law which can determined which videos are authentic and which are suspect.

        Meanwhile, as a country, we continue to slip off the cliff.

        1. Lee Keller King

          It will be interesting to see the autopsy reports for the two that were killed. Until then, we only have what we think we see in the videos.

  10. Pingback: Update on Kenosha – Lex Ferenda

  11. Atown

    Knife in hand picture is fake. No knife was present until found in the car according to Sept 1 DOJ report. Report includes vague language, “During the investigation following the initial incident, Mr. Blake admitted that he had a knife in his possession.” What is the boundary on “the initial incident?” Did he tell the police he had a knife before or after he attempted to enter the car?

    1. Lee Keller King

      Thanks for posting the link to the Department of Justice news release.

      So it seems that what we have here is a fugitive from justice who admitted to police he had a knife in the car, shrugged off two taser attacksand attempted to get into a car in which he had admitted he had a knife. What are the police supposed to do? Wait until he actually pulls the knife on them?

      As the facts develop, they are destroying the original narrative that he was an innocent black man trying to stop a fight between two women, who got shot by the cops for no reason. Unfortunately, the facts will have little effect on those who have already made up their minds that this was just another unjustified police shooting of a black man. 😔

  12. Chris Halkides

    “Rittenhouse apparently only killed two white people, Anthony Huber (on the left) and Joseph Rosenbaum (on the right).” I am unclear on why the number or the race of the two individuals is important. Is there some context that I am missing?

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