Jacob Blake, 29, was shot seven times in the back by a police officer Aug. 23 after police responded to a report of a domestic dispute in Kenosha, Wisconsin. Kyle Rittenhouse, 17, is accused in the fatal shootings of two men who his lawyers say chased and attacked the teen Aug. 26 as he was trying to protect property from rioters in the wake of the Blake shooting.

What is the media alleging about Rittenhouse, and what are the known facts? Amy Swearer, a legal fellow in the Edwin Meese Center for Legal and Judicial Studies at The Heritage Foundation, joins “The Daily Signal Podcast” to discuss.

We also cover these stories:

  • President Donald Trump visits Kenosha, despite the wishes of state and local politicians who asked him not to come. 
  • Chad Wolf, acting secretary of the Department of Homeland Security, tells Portland Mayor Ted Wheeler in a letter that the federal government will get involved if local leaders don’t quell the ongoing violence since the May 25 death of George Floyd in Minneapolis.
  • The Department of Justice is looking into possible criminal activity by the Black Lives Matter organization.  

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Rachel del Guidice: I’m joined today on “The Daily Signal Podcast” by Amy Swearer. She’s a legal fellow in the Edwin Meese Center for Legal and Judicial Studies at The Heritage Foundation. Amy, it’s great to have you with us on “The Daily Signal Podcast.”

Amy Swearer: Thank you so much for having me.

Del Guidice: We’ll be talking a little bit about Kyle Rittenhouse as well, but let’s start with Jacob Blake, who is the 29-year-old man who was shot multiple times by police on Aug. 23 in Kenosha, Wisconsin. Amy, can you tell us what we know about what happened here?

Swearer: Sure. With Jacob Blake, this was really the event that kicked off the firestorm, if you will, that has been going on in Kenosha over the last week or so.

The first video that came out is a very short video that was about 20 seconds. Admittedly, it’s very hard to watch. It’s Jacob Blake walking away from an officer with the officer’s gun drawn. Jacob Blake tries to get into the car. The officer tries to pull him back. As he’s leading into the car, he shoots Jacob Blake roughly seven times in the back.

Now, again, it’s difficult to watch. I will point out that it was immediately apparent to me that this is different from the George Floyd situation.

If you remember George Floyd, again, was the man in Minnesota who had his neck kneeled on for four minutes by an officer as he was unconscious—something like that, kneeling on an unconscious man for four minutes. There’s no context that is going to justify that. That man is in no capacity a danger to anyone. He can’t be.

There are times like this where even when it looks bad, … there’s context that can matter, there’s contexts that can come out. I could point you to dozens of videos of individuals quickly reaching into a vehicle, or a pocket, or within a split second, having a weapon, and now the cop is injured or dead.

I think it was important for us to wait for the facts to come out, but that’s not what happened. You immediately have this narrative of police shooting an unarmed individual for no reason. Then the facts started coming out, and it was a little different than what was initially reported.

The officers had been called to the residence for a domestic dispute in which Blake was reportedly threatening a woman. The officers knew he was wanted on a felony warrant for sexual assault.

Previous video shows him about 30 seconds earlier, physically fighting with the officers, brushing off a taser. At some point, it’s unclear whether he had a knife on him. The officers seemed to be under the impression he had a knife on him, and a knife was ultimately found on the floorboard of the car.

There’s just a lot going on here with that added context. I don’t know that there’s enough to determine from what we have that the officer either did everything right or absolutely nothing wrong, but it was immediately apparent that this was far more complicated and dangerous of a situation than what we saw reported and clearly, what we saw with the George Floyd situation. There was a way in which the shooting was not as grotesque and inexplicable as it might’ve been initially reported.

Del Guidice: On that note, Amy, what questions would you say remain to be answered about Blake’s shooting?

Swearer: It would have been helpful if there [were] body camera images, something where we could see from the officer’s perspective sort of what the officer saw that made him believe he needed to use lethal force at that moment against Jacob Blake, whether he saw Blake reaching for a weapon or reaching for something, that there is a sense in which if Blake is reaching for a weapon, if Blake had made threats to the officers.

I’ve seen some reports saying he had threatened to shoot the officers, but again, none of that has been confirmed. It’s just sort of up in the air, this idea of what initiated, what prompted that officer to believe lethal force was necessary. That belief may be reasonable. It may be unreasonable. We just don’t know, but the facts are going to affect that belief.

Del Guidice: Amy, the Blake shooting has been often compared to the death of George Floyd. I know you mentioned this a little bit earlier on. Are there any other distinctions that you think should be drawn between the two situations?

Swearer: Yes. I mean, other than that sort of factual reality that there is a way, given certain facts, that the Jacob Blake [shooting] could have been reasonable … I think more than anything with their distinctions is what you saw in the similarities of sort of the aftermath, how it immediately set off a firestorm that has since destroyed major parts of the city in which it took place.

It’s interesting because in many ways, despite their differences, the similarities in outcome, I think, is so profound that it’s hard to get over that.

Del Guidice: Let’s talk about Kyle Rittenhouse. He’s the 17-year-old boy who, per CBS, is “accused of killing two protesters [who were actually protesting the Jacob Blake shooting] and injuring another with an AR-15 style rifle” in Kenosha, Wisconsin, on Aug. 25, and “has been charged as an adult with two counts of first-degree homicide and one count of attempted homicide.

What do we know about why the 17-year-old was in Kenosha in the first place and guarding the town?

Swearer: Well, this, again, is going to come down to what we know, is going to come down to, if you will, competing narratives.

I think this is another example of how, even with some very clear video timelines that we have in this case, you can read different narratives into it, that if you’re reading them, that they appear to be written about completely different events depending on who’s writing them.

What do I mean by that? I’d say the three different narratives that you have … First, you have sort of the common media narrative, which, right now, it seems to be that Rittenhouse was a white nationalist member of right-wing militia who drove across state lines with a rifle because he was intent on threatening peaceful protesters. He intimidated and provoked the crowd, and opened fire indiscriminately. The protesters who attacked him and were killed were heroes who sacrificed themselves to protect others. That’s one narrative you have.

I’d say, then you have the narrative from Rittenhouse and his attorney, which is that he showed up unarmed earlier in the day. He just wanted to clean up graffiti in a town where he worked, where he had many friends. He was either invited to or heard about an invitation from store owners who wanted people to protect the property. He legally obtained a firearm in Wisconsin. He was administering first aid to protesters. Basically, he never did anything unwise, illegal, or otherwise wrong.

Then you have, what I would say, is the more objective video evidence. There’s a lot of videos from all across that night. I think when you put them all together, you get a third narrative that, frankly, is far closer to Rittenhouse’s account than to the media account. If you want, I can sort of get into what that more objective account looks like.

Del Guidice: Yes, let’s talk about that for a minute. What do you see? What do you think people should know?

Swearer: Yes. The videos are graphic, but The New York Times in particular has put together sort of a video timeline from all of the different live streams. I think when you put all of these together and you watch them, a number of things become very clear.

I’m not going to reiterate the entire timeline, but sort of the main points. I think the first is that Rittenhouse was never the initial aggressor in either of the deadly confrontations. In fact, both times, he was actively trying to remove himself from the confrontation. He was walking, and in one case, running away from the confrontation.

In fact, the second point is that, contrary to this idea of the protesters being unarmed and peaceful, I think it’s very clear from the video that the protesters in particular who were shot, either killed or injured, were not only confrontational and threatening, the initial aggressors, several of them were armed and appeared to be, in both cases, either firing or preparing to fire guns at Rittenhouse. They were these initial aggressors who actively attacked him as he’s trying to get away.

… Third, I think that this is very, very important here, you’ve got this narrative of, essentially, he just opened fire indiscriminately, which, you’ll actually see in the video, … that Rittenhouse only fired his gun at individuals who at least arguably posed an imminent and serious threat to him.

The moment that other protesters stopped approaching him in a threatening manner, he put down his firearm and continued trying to remove himself from the situation, the individuals who were shot, or those who attacked him with a skateboard pointed a gun, literally, at his face, or who was chasing him down for 40, 50 yards, things of that nature.

It paints a very different narrative than, I think, you’ve seen on either side. But I’d say, definitely, it’s closer to the narrative that you’re getting from Rittenhouse’s attorney.

Del Guidice: Something else that’s been a big topic of discussion and, I think, confusion is about Kyle Rittenhouse’s gun. Was that a firearm legally or illegally obtained?

Swearer: This is, again, where you have the version from his attorney, which is actually quite vague. According to his attorney, the firearm never crossed state lines. Apparently, he, at some point, was given a firearm in Wisconsin.

There are serious questions, however, at least in my mind, about the legality of that. Wisconsin has a law that prohibits, in most cases, individuals under the age of 18 from … it’s called going about armed with a dangerous weapon, so basically, open carrying guns.

Now, there are exceptions to that, such as if you have a valid hunting license or [are] accompanied by an adult, but it’s unclear whether any of those exceptions sort of exist. …

Again, you have a narrative from his attorney. How well does it match up with the facts? That sort of thing doesn’t come out on video. We just don’t have enough evidence at this point just to sort of weed through that.

Del Guidice: Something else that, as you’ve mentioned earlier, Amy, has been a topic of discussion amongst people across the country is, was Rittenhouse the aggressor in this situation, as a lot of people are saying he was? What do you see when you look at the facts?

Swearer: Yes. This idea of who was the initial aggressor becomes important.

Wisconsin, like most states, has a law that essentially says, look, you can claim self-defense except for in two circumstances. The first is when you do something unlawful to provoke the violence, or when you do something, regardless of whether it’s lawful or unlawful, with the intent, specifically, of provoking people to attack you so that you can then use it as a guise to kill your attacker.

In those two situations, it’s provocation, and you can’t claim self-defense anymore.

Now, at least as to this idea of, was he provoking? Was he intentionally seeming to provoke the attack? I mean, it’s hard to say that when you look at the video. You have an individual who is, in the first case, actively running away and being chased.

Now it’s possible, maybe he said something or did something prior to that. I think, certainly, the state will try to argue that if he was in illegal possession of that rifle, he was doing something unlawful.

You also have this reality that I think the state is going to play into of saying, “We’re going to paint this kid as essentially showing up with a rifle planning to kill someone.” Again, “He was this white nationalist who was trying to create a situation where he could kill protesters and claim self-defense.”

It’s just so hard because you have videos from earlier in the day where he is just cleaning graffiti, saying, “Look, I’m here peacefully. My goal is not to hurt anybody.”

Again, just a lot to weed through with that, but it would seem to me that, at least on its face, I think the state has an uphill battle, trying to prove that Kyle Rittenhouse was provoking his attackers or showed up there intent on killing someone.

Del Guidice: Can we talk, Amy, a little bit more about the charges Rittenhouse is facing and what his likely defense will be?

Swearer: Yes. I think these are very serious charges. I mean, he’s looking at life in prison. He’s got five felony charges, including two for first-degree intentional murder, one for attempted murder, and then two counts of what’s called reckless endangerment. Then, as I mentioned earlier, he’s got … a misdemeanor count for carrying a dangerous weapon as a person under the age of 18.

Here’s where it gets interesting: First-degree intentional murder in Wisconsin doesn’t require premeditation. It just requires that you intended to kill the person.

I think it’s very clear from the video and from the context that Rittenhouse was intentionally using deadly force against specific individuals. He intended to fire at them. The only question is whether he acted in lawful self-defense because that’s considered privileged action. You can’t be held criminally liable for acting in self-defense, even if you intentionally killed someone.

What’s going to happen is Rittenhouse is going to argue, “Look, when I shot them, it was because I was in reasonable fear of imminent, serious bodily harm. I had to do this to lawfully defend myself.”

Then after that, the state is going to have to prove beyond a reasonable doubt that he actually wasn’t in reasonable fear or in the case of provocation, that he unlawfully provoked the situation.

Then real quick, not to get too far into the weeds here, but as I said, he’s facing two charges of reckless endangerment. These are quite odd to me. I anticipate these not coming into play and probably getting dropped because they appear to be related to the two deaths for which he is also facing intentional murder charges.

Kind of just a technical issue here, is that the way recklessness works is that you don’t have intent. Recklessness would be like, you just sort of fired randomly without regard for who it was going to injure.

I don’t think anyone’s actually arguing that he, Rittenhouse, wasn’t intentionally firing at specific people. He’s essentially saying, “Yes, I intended to shoot them, but it was in self-defense.”

It’s a weird charging decision to sort of get him for intent and recklessness. Unless Rittenhouse suddenly changes his self-defense argument, I think those two at least are going to be dropped. Again, when you’re facing intentional first-degree murder counts, you’re still looking at life in person, even without those.

Del Guidice: Amy, what do you think the prosecution, which is the state of Wisconsin, will say? Will they argue Rittenhouse didn’t have grounds for self-defense?

Swearer: Yes. I think, to me, the most probable thing that the prosecution is going to go after is this idea of, “He waived his right of self-defense by provoking the situation,”—I kind of touched on this earlier—it could say that, again, they say, “Look, he was illegally armed and therefore, he was doing something unlawful. Just carrying his gun, that provoked the attack.”

Even assuming that’s all true, in that scenario, you can regain your right to self-defense by withdrawing from the confrontation. Then if you’re threatened with deadly force after you’ve withdrawn from the confrontation and say, “Hey, OK. Fine. I’m done with this fight,” you can regain that right of self-defense.

As we talked about, even if he said something that provoked people to chase him, he’s running away. He is clearly booking it out of there saying, “Hey, I want no part of this.” At that point, if you’re in imminent fear of your life, you regain that right to self-defense. I think that’s an uphill battle for the state.

Then, as I said, there’s the second argument, essentially, that he showed up intending to kill people, intending to provoke them to attack him so that he could kill them in … “self-defense.”

Again, when you look at the video evidence, when you look at both what you see, which is someone actively running away, not standing there, and say, “Yes, now I get to kill people in self-defense,” you also see someone who’s distraught, who immediately turns himself into police, who says, “Yes, I shot someone. It was in self-defense,” who doesn’t use it to then shoot random other people, who showed up there, apparently, not even armed, initially, who was administering aid to others.

I think if all those facts are true, there’s just a lot of things that don’t match up with that narrative that the state would have to prove of he intended to show up and shoot people.

Del Guidice: Well, big picture, Amy, what do you think about what happened in Kenosha? Do you think Rittenhouse was wise to go to Kenosha with the gun?

Swearer: Even while recognizing that, I think, Kyle Rittenhouse has very clear claims of self-defense, there is this idea of him being there in the first place as an armed 17-year-old who doesn’t live there. That makes a lot of people, frankly, myself included, very uncomfortable.

There’s still a lot of facts we don’t know. I think sort of broad picture, from a Second Amendment perspective, there’s a difference between lawful defense and questionable vigilantism. I think the clearest way of distinguishing those two things is the posturing.

Are you actively going out to find and take on criminals or are you simply prepared to defend yourself and your community in a reactive way of when crime happens?

I think there are facts that have been alleged here that, if true, make this case more like active vigilantism. I think that there are facts in this case that, if true, make it more like community defense, like in Koreatown, and much more uncomfortable.

We don’t know how those facts are going to shake out. I think broad picture, that distinction between lawful defense and vigilantism, is something that gun owners have to be very, very careful with and think about very deeply, especially in times of chaos and disorder like this.

I think, finally, above and beyond all that, there are a lot of arguments for why Kyle Rittenhouse shouldn’t have been there that night. Most compelling for me is that he shouldn’t have been there because this shouldn’t have been happening.

Government officials in Wisconsin should’ve been better willing and able to protect Kenosha in previous days. We shouldn’t have gotten to a point where a 17-year-old thinks that he needs to go protect a city. You have a governor who declined to send in an extra 500 National Guardsmen that had been requested by local law enforcement.

Even beyond that, you have the reality that for several days, the entire nation watched as Kenosha was burning because of, yes, largely peaceful protesters, but protesters who still, over the last three months, for various reasons, caused hundreds of millions of dollars in damage across the country.

I think there’s a lot of blame to go around even before we get to a point where we start questioning the wisdom of a 17-year-old showing up, thinking he needs to keep the peace. I think we start with, how did we get to that situation? And how do we prevent us from getting to that situation again?

Del Guidice: Lastly, Amy, can you talk about the difference in how the media has treated the Kenosha and Portland shootings?

Swearer: This is interesting because I think a lot of people may not have even heard that there was also a shooting between Black Lives Matter protesters, or I guess it was an Antifa protester and a more of a far-right counter-protester in Portland.

The reason a lot of people don’t know that is because it just has sort of not made the news in the way that Kyle Rittenhouse has, that when the rules are switched, it seems that the media hasn’t been very apt to talk about it.

We immediately knew everything there was to know about Kyle Rittenhouse. The people are questioning, how did he get the gun? What’s his life story? What’s everything he’s ever said online ever?

Whereas you have this individual in Portland who all of a sudden, it’s not interesting to them sort of who he was affiliated with, or that he was in illegal possession of a firearm, that he had been arrested at previous protests.

I think that says a lot just sort of about the state of, really, the narrative, that it’s very easy for one particular narrative to be crafted to the exclusion of other important information, to other important stories that are out there. It’s very disappointing.

Del Guidice: Well, Amy, thank you so much for joining us today on “The Daily Signal Podcast.” We appreciate having you.

Swearer: Thank you for having me.