- Mike Huseman
The Facebook Lawyers Are Wrong Again
By now everyone has heard about the aspiring police officer from Antioch who drove to Kenosha and killed two people. Predictably, my social media feed is split right down the middle between people who are outraged at his actions and those who declare that he was justified because he was defending private property from looters.
The people with common sense are outraged that a former police cadet from Illinois would drive to Wisconsin with a rifle just to insert himself into the mix, in violation of Kenosha's local curfew. The people with Facebook law degrees, on the other hand, confidently declare that he will "never be convicted" because he was defending a convenience store from protesters and/or he was acting in self-defense.
I decided to research the law as if the incident had happened in Illinois to see who was right. I have not researched Wisconsin law, so I don't know if he actually has defenses to the Wisconsin charges. But, hypothetically speaking, if this incident had happened in Illinois, I'm pretty sure this guy would have just bought himself a lifetime membership to the Gray Bar Motel.
Illinois has three statutes dealing with the justifiable use of force. Under certain circumstances, people are justified in the use of force if they are defending (1) themselves or another person; (2) a dwelling that is intended for use as a home or residence; or (3) real property other than a dwelling or personal property.
This case does not involve a dwelling, so the issues will be whether his use of force was justified while defending himself or the convenience store. These are complicated issues so just stick with me for a moment.
A person can justifiably use force against another person when "he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force." However, a person is only justified in the use of force "which is intended or likely to cause death or great bodily harm" if he reasonably believes that such force is "necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony." 720 ILCS 5/7-1.
The two deaths occurred during completely separate incidents. Being convicted of only one will be disastrous for this guy's future as a police officer, not to mention his freedom. Because of that, I'll discuss the first killing only. Considering that he shot the first victim squarely in the head with a rifle at point-blank range, the part of the statute dealing with deadly force will apply. In order to argue self-defense, he will have to show that his own use of deadly force was necessary to prevent his own imminent death or great bodily harm, or the commission of a forcible felony against him. From the video I saw, it did not appear that the shooting was necessary to prevent his own imminent death or great bodily harm. If anything, he was apprehensive of receiving a simple battery from the shooting victim who was arguably the aggressor in the situation.
Next, he could try to argue that he was defending the store. But in order to be justified in the use of force while defending property other than a dwelling, he would have to show that he was (1) lawfully in possession of the property, (2) the property was lawfully in the possession of a member of his family or immediate household, or (3) he had a legal duty to protect the property. 720 ILCS 5/7-4.
The facts are still emerging, but I do not believe he will be able to argue that he was defending his own store, the store of a family member, or that he otherwise had a legal duty to protect the store, such as that he was working there as a security guard.
Lastly, these defenses become more difficult to prove because there is another statute in Illinois that says the justifications are not available to a person who "initially provokes the use of force against himself, with the intent to use such force as an excuse to inflict bodily harm upon the assailant." The question here will be whether he provoked anyone by his words or actions prior to the incidents occurring. If he did that, these defenses will not be available to him in the first place.
Based on my review of the videos and published news articles, I do not think the shooter was justified in killing two people because he was defending himself or the convenience story. I'm going to rule against the Facebook lawyers who are defending this guy's actions.