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.
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. 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.
Under the guidelines in Tennessee v. Garner, 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.
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. Wisconsin has not allowed the death penalty since 1853, and only had one execution after becoming a state in 1848.
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.
 And there will be plenty of others that disagree with me, I’m sure.
 See Roper v. Simmons, 543 U.S. 551 (2005), which prohibited the execution of those under the age of 18.