“We’re looking at all of it, that was an interesting situation, you saw the same tape as I saw…he was trying to get away from them, I guess, it looks like….and he fell, and they very violently attacked him….and it was something that we’re looking at right now and it’s under investigation…uh…I guess he was in very big trouble, he probably would have been killed, but…..it’s under investigation.”
Trump is wrong. Hey Trump! It’s NOT under investigation! The investigation is OVER AND KYLE KITTENHOUSE HAS BEEN INDICTED ON 6 FELONY COUNTS AND MURDER CHARGES! YOU’RE SUPPORTING A MURDERER, MR. PRESIDENT! YOU’RE CONTRIBUTING TO VIOLENCE IN THE STREETS FROM YOUR SUPPORTERS! YOU’RE A MURDERER!
Prosecutors want to give Rittenhouse the death penalty; however, even if Rittenhouse agrees to a plea bargain to a lessor degree of murder, the minimum he will get is 60 years in a state penitentiary. By next year Trump will be sitting in an orange jumpsuit in a federal pententiary, while his buddy Kyle does his 60-year sentence in state prison.
Dave Aronberg, the state attorney for Palm Beach County, Florida says:
“His lawyers are setting up for a self-defense claim,” Aronberg said. “Keep in mind he was the one that put the night of violence in motion. He was the one that travelled across state lines as a 17-year-old, to possess a weapon he was not allowed to possess, to stand guard outside a used car lot that no one asked him to stand guard at.”
“So he was the initial aggressor, and under the initial aggressor doctrine, he’s not allowed self-defense unless he makes it clear he’s abandoning the fight or others come at him using excessive force, and according to videos doesn’t look like either of those claims hold water,” he continued. “Because the first person that he shot didn’t have a weapon. The second person he shot and killed came at him with a skateboard. The lawyers will say a guy wielding a skateboard could be dangerous. You tell that to a jury that Rittenhouse, who had an AR-15, was in reasonable fear of his life from a guy with a skateboard.”
A crowd chases a suspected shooter down in Kenosha. He trips and falls, then turns with the gun and fires several times. Shots can be heard fired elsewhere as well, corroborating reports of multiple shooters tonight #Kenosha #KenoshaRiots pic.twitter.com/qqsYWmngFW
— Brendan Gutenschwager (@BGOnTheScene) August 26, 2020
According to the criminal complaint against Rittenhouse, multiple videos show him carrying a Smith & Wesson AR-15-style .223 caliber rifle and a 30-round magazine. The complaint says the rifle and magazine were both recovered by law-enforcement officers.
One of the men allegedly killed by Rittenhouse was Joseph Rosenbaum, 36, of Kenosha.
The complaint, signed by Kenosha County Deputy District Attorney Angelina Gabriele and Assistant D.A. Carli McNeil, says videos show Rosenbaum throwing a plastic bag at Rittenhouse and show the two men later moving across a parking lot.
“A loud bang is heard on the video,” the prosecutors wrote. “Then a male shouts, ‘F— you,’ then Rosenbaum appears to continue to approach the defendant and gets in near proximity to the defendant, when four more loud bangs are heard. Rosenbaum then falls to the ground”
A reporter removed his shirt and tried to give Rosenbaum first aid, when Rittenhouse appeared to make a cell phone call and began to run away, the complaint says.
“As the defendant is running away, he can be heard saying on the phone, ‘I just killed somebody,’ ” the prosecutors wrote.
The complaint says a friend of Rittenhouse’s told a detective he received a phone call from the defendant and that Rittenhouse said in the call that he had shot someone.
An autopsy showed Rosenbaum had gunshot wounds to the groin, back, hand, thigh and forehead, according to the complaint.
The alleged Murder
The other man killed was Anthony Huber, 26, of Silver Lake, about 15 miles west of the city.
The complaint says a video shows people pursuing Rittenhouse down a road and yelling that he had shot someone. Then Rittenhouse tripped and fell to the pavement.
As the defendant is on the ground, an unidentified male “jumps at and over the defendant,” the complaint says, adding that it appears Rittenhouse fired two quick shots at this person but missed him.
Then Huber approached Rittenhouse, now on his back, the prosecutors wrote.
“The defendant rolls towards his left side and, as Huber appears to be trying to grab the gun, the gun is pointed at Huber’s body. The defendant then fires one round, which can be heard on the video. Huber staggers away, taking several steps, then collapses to the ground.”
Huber died from that round, which tore through his heart, aorta, pulmonary artery and right lung, the complaint says. The murder charge stems from his death.
Rittenhouse, still on the ground, pointed his gun at a third man — Gaige Grosskreutz, 26 — who had begun to approach him, according to the prosecutors.
When Rittenhouse shot Huber, “Grosskreutz freezes and ducks and takes a step back,” the complaint says.
“Grosskreutz puts his hands in the air [and] moves towards the defendant, who aims his gun at Grosskreutz and shoots him, firing one shot.”
Grosskreutz was shot in the right arm and appeared to be holding a handgun in his right hand at the time, the prosecutors wrote. He ran away from Rittenhouse and screamed for a medic.
Grosskreutz, of West Allis, Wisconsin, was volunteering as a medic when he was shot, according to Bethany Crevensten, who was also among the group of about two dozen activists.
“He was a hero and he is a hero,” she told the Associated Press.
Grosskreutz is recovering after surgery and is not yet giving interviews, Crevensten said.
Police let gunman walk away
Rittenhouse was arrested Wednesday in Illinois. He was assigned a public defender for a hearing Friday at the Lake County courthouse on his transfer to Wisconsin. Under Wisconsin law, anyone 17 or older is treated as an adult in the criminal justice system.
His attorney, Lin Wood, said the teenager was acting in self-defense.
“From my standpoint, it’s important that the message be clear to other Americans who are attacked that there will be legal resources available in the event false charges are brought against them,” he said. “Americans should never be deterred from exercising their right of self-defense.”
Kenosha police faced questions about their interactions with the gunman on Tuesday night. According to witness accounts and video footage, officers apparently let him walk past them and leave the scene with a rifle over his shoulder and his hands in the air, as crowd members yelled for him to be arrested because he had shot people.
As for how the gunman managed to slip away, Kenosha County Sheriff David Beth has described a chaotic, high-stress scene, with lots of radio traffic and people screaming, chanting and running — conditions he said can cause “tunnel vision” among law officers.
Video taken before the shooting shows police tossing bottled water from an armored vehicle and thanking civilians armed with long guns walking the streets. One of them appears to be the gunman.
The national and Wisconsin chapters of the American Civil Liberties Union on Thursday called for the resignation of Beth and Kenosha Police Chief Dan Miskinis over their handling of Blake’s shooting and the subsequent protests.
Blake, 29, was shot in the back seven times Sunday as he leaned into his SUV, in which three of his children were seated.
Wisconsin authorities have identified the officer who shot him as Rusten Sheskey, a seven-year veteran of the Kenosha Police Department.
Authorities said Sheskey was among officers who responded to a domestic dispute, though they have not said whether Blake was part of the dispute. Sheskey shot Blake while holding onto his shirt after officers unsuccessfully used a Taser on him, the Wisconsin Justice Department said. State agents later recovered a knife from the floor on the driver’s side of the vehicle, the department said. State authorities did not say Blake threatened anyone with a knife.
Ben Crump, the lawyer for Blake’s family, said Tuesday that it would “take a miracle” for Blake to walk again. He called for the arrest of Sheskey and for the others involved to lose their jobs. State officials have announced no charges.
In solidarity with Blake, Milwaukee Bucks players refused to play their NBA playoff game Wednesday. Much of the sports world was following the team’s lead by Thursday night.
Also Thursday, Wisconsin Lutheran College, located about 40 miles from Kenosha, said it canceled a planned Saturday commencement speech by Vice President Mike Pence, citing the unrest.
But four groups representing Wisconsin sheriffs and police departments on Thursday urged Democratic Gov. Tony Evers to stop making “premature, judgmental [and] inflammatory” comments about Blake’s shooting that they say “only add to the anger and divisiveness of an already dangerous situation.”
Evers has said he stands with everyone demanding justice, equity and accountability and against the excessive use of force against Black people.
State and federal responses
The governor has authorized the deployment of 500 members of the National Guard to Kenosha, doubling the number of troops in the city of 100,000. Officials on Thursday said Guard troops from Arizona, Michigan and Alabama were coming to Wisconsin to assist.
In Washington, the Justice Department said it was sending in more than 200 federal agents from the FBI, U.S. Marshals Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
By Thursday night, U.S. marshals in unmarked vehicles were assisting Kenosha police in arrests as they enforced a citywide curfew, according to the Chicago Sun-Times.
In July, officers from the U.S. Marshals Special Operations Group and U.S. Customs and Border Protections Border Patrol Tactical Unit were deployed to Portland to guard federal property amid rioting. NPR reported that federal officers in Portland were using unmarked vehicles to take demonstrators in custody.
The Justice Department also announced that the FBI and the U.S. Attorney’s Office for the Eastern District of Wisconsin would conduct a civil rights investigation into Blake’s shooting in cooperation with Wisconsin state law enforcement agencies.
(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
(a) In this subsection:
1. “Dwelling” has the meaning given in s. 895.07 (1) (h).
2. “Place of business” means a business that the actor owns or operates.
(ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies:
1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor’s dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.
2. The person against whom the force was used was in the actor’s dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.
(b) The presumption described in par. (ar) does not apply if any of the following applies:
1. The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time.
2. The person against whom the force was used was a public safety worker, as defined in s. 941.375 (1) (b), who entered or attempted to enter the actor’s dwelling, motor vehicle, or place of business in the performance of his or her official duties. This subdivision applies only if at least one of the following applies:
a. The public safety worker identified himself or herself to the actor before the force described in par. (ar) was used by the actor.
b. The actor knew or reasonably should have known that the person entering or attempting to enter his or her dwelling, motor vehicle, or place of business was a public safety worker.
(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.
(4) A person is privileged to defend a 3rd person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person’s intervention is necessary for the protection of the 3rd person.
(5) A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death.
(6) In this section “unlawful” means either tortious or expressly prohibited by criminal law or both.
History: 1987 a. 399; 1993 a. 486; 2005 a. 253; 2011 a. 94.
Judicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]
When a defendant testified that he did not intend to shoot or use force, he could not claim self-defense. Cleghorn v. State, 55 Wis. 2d 466, 198 N.W.2d 577 (1972).
Sub. (2) (b) is inapplicable to a defendant if the nature of the initial provocation is a gun-in-hand confrontation of an intended victim by a self-identified robber. Under these circumstances the intended victim is justified in the use of force in the exercise of the right of self-defense. Ruff v. State, 65 Wis. 2d 713, 223 N.W.2d 446 (1974).
Whether a defendant’s belief was reasonable under subs. (1) and (4) depends, in part, upon the parties’ personal characteristics and histories and whether events were continuous. State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989).
Evidence of prior specific instances of violence that were known to the accused may be presented to support a defense of self-defense. The evidence is not limited to the accused’s own testimony, but the evidence may not be extended to the point that it is being offered to prove that the victim acted in conformity with his or her violent tendencies. State v. Daniels, 160 Wis. 2d 85, 465 N.W.2d 633 (1991).
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
The reasonableness of a person’s belief under sub. (1) is judged from the position of a person of ordinary intelligence and prudence in the same situation as the defendant, not a person identical to the defendant placed in the same situation as the defendant. A defendant’s psycho-social history showing past violence toward the defendant is generally not relevant to this objective standard, although it may be relevant, as in spousal abuse cases, where the actors are the homicide victim and defendant. State v. Hampton, 207 Wis. 2d 369, 558 N.W.2d 884 (Ct. App. 1996).
The right to resist unlawful arrest is not part of the statutory right to self-defense. It is a common law privilege that is abrogated. State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), 96-0914.
While there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person. A jury instruction to that effect was proper. State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App. 1999), 98-1739.
When a defendant fails to establish a factual basis to raise self-defense, prior specific acts of violence by the victim have no probative value. The presentation of subjective testimony by an accused, going to a belief that taking steps in self-defense was necessary, is not sufficient for the admission of self-defense evidence. State v. Head, 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9, 99-3071.
Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under sub. (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant asserting perfect self-defense against a charge of 1st-degree murder must meet an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and that the force used was necessary to prevent imminent death or great bodily harm. A defendant asserting the defense of unnecessary defensive force s. 940.01 (2) (b) to a charge of 1st-degree murder is not required to satisfy the objective threshold showing. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
When a defendant successfully makes self-defense an issue, the jury must be instructed as to the state’s burden of proof regarding the nature of the crime, even if the defense is a negative defense. Wisconsin JI-Criminal 801 informs the jury that it “should consider the evidence relating to self-defense in deciding whether the defendant’s conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another.” This instruction implies that the defendant must satisfy the jury that the defendant was acting in self-defense and removes the burden of proof from the state to show that the defendant was engaged in criminally reckless conduct. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011.
When the circuit court instructed the jury to “consider the evidence relating to … defense of others, in deciding whether defendant’s conduct created an unreasonable risk…. If the defendant was acting lawfully in defense of others, his conduct did not create an unreasonable risk to another,” the instruction on the state’s burden of proof on defendant’s defense of others defense was wholly omitted and the instructions were erroneous. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011.
Sub. (1m) does not justify continued use of deadly force against an intruder when that intruder is no longer in the actor’s dwelling. The applicable definition of the actor’s dwelling, s. 895.07 (1) (h), requires that the part of the lot or site in question be “devoted to residential use.” While s. 895.07 (1) (h) lists several parts of a residential lot that are part of a “dwelling,” it does not include a parking lot. The common denominator of the listed parts of dwellings is that all are property over which the actor has exclusive control. An apartment building parking lot is not exclusive to one tenant or devoted to the residential use of any one tenant. State v. Chew, 2014 WI App 116, 358 Wis. 2d 368, 856 N.W.2d 541, 13-2592.
Wisconsin law establishes a low bar that the accused must surmount to be entitled to a jury instruction on the privilege of self-defense. The accused need produce only “some evidence” in support of the privilege of self-defense. State v. Stietz, 2017 WI 58, 369 Wis. 2d 222, 880 N.W.2d 182, 14-2701.
The jury instruction for self-defense in this case was not erroneous. The circuit court gave the jury a general instruction on the state’s burden to establish guilt beyond a reasonable doubt. Because self-defense is a negative defense, the state disproves self-defense beyond a reasonable doubt if the state proves the elements of the crime beyond a reasonable doubt, specifically criminal negligence. Therefore, the jury was aware that the state had to prove criminal negligence—the element that self-defense would negate—beyond a reasonable doubt. State v. Langlois, 2018 WI 73, 382 Wis. 2d 414, 913 N.W.2d 812, 16-1409.
A person may employ deadly force against another, if the person reasonably believes that force is necessary to protect a 3rd-person or one’s self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F.2d 79 (1975).
Self-defense — prior acts of the victim. 1974 WLR 266.
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin’s Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
Home Safe Home: Wisconsin’s Castle Doctrine and Trespasser Liability Laws. Hinkston. Wis. Law. June 2013.
939.49 Defense of property and protection against retail theft.
(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one’s property.
(2) A person is privileged to defend a 3rd person’s property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person’s property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant’s employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
(3) In this section “unlawful” means either tortious or expressly prohibited by criminal law or both.
History: 1979 c. 245; 1981 c. 270; 1993 a. 486.
Sub. (1) is a defense to criminal liability. It is irrelevant to the issue of whether the emergency doctrine can apply in a civil action to excuse a party’s contributory negligence. Kelly v. Berg, 2015 WI App 69, 365 Wis. 2d 83, 870 N.W.2d 481, 14-1346.
Flight on the part of one suspected of a felony does not, of itself, warrant the use of deadly force by an arresting officer, and it is only in certain aggravated circumstances that a police officer may shoot a fleeing suspect. Clark v. Ziedonis, 368 F. Supp. 544 (1973).