It’s come to my attention that some folks with a limited grasp of how the law works were confused by some of my commentary regarding the Dominick Black gun charge during my recent appearance on the Tim Pool IRL. Always on the lookout for a teachable moment, I thought I’d take few minutes to bring clarity to the confusion apparently plaguing some minds.
As usual, the problem is that some people are failing to fully engage their mental gears to the extent they think they are, and as a result they fail to understand even the actual question being answered, much less the correctness of the answer being provided.
Dominick Black, you may recall was the friend who purchased the AR-15 pattern rifle that Kyle Rittenhouse would use so successfully in self-defense in Kenosha WI. Within days of that event, however, Rittenhouse was charged with a variety of crimes, including the misdemeanor of being someone under 18 years old in possession of a deadly weapon–that rifle purchased by Black. Not very long afterward Black would find himself charged with his own criminal offense–that of having provided a minor with a deadly weapon which was later involved in a death.
Although both of these crimes are found in separate sections of a single statute, they are in every legal sense nevertheless distinct crimes, with distinct legal elements. One can be guilty of one and not the other, or the other and not the one.
Indeed, Rittenhouse was charged with the possession crime but not the provision crime, and Black was charged with the provision crime but not the possession crime. Because possession and provision are two different crimes.
I hope everybody is still with me–and if this explanation sounds painstaking, my apologies it’s because I’ve found that certain folks need every single breadcrumb in the reasoning trail.
The possession charge against Rittenhouse was dismissed shortly before the jury was given its final instructions and sent to deliberate–and rightfully so, as Kyle was never legally subject to the charged offense in any case, for reasons I cover in detail here:
When the matter of the Dominick Black gun provision charge came up on Tim’s show, the issue arose as to whether Black’s gun provision charge should be dismissed because Kyle’s gun possession charge was dismissed. My answer was that I saw no reason why that would be the case.
Let me re-state that again because precision of language is important in the law: My answer was that I saw no reason why Black’s gun provision charge should be dismissed because Kyle’s gun possession charge was dismissed. (Pay attention to that “because,” well, because it makes all the difference.)
My answer to that question is the correct answer because the two statutes involved are distinct criminal violations, each with its own elements, and neither is itself an element or required component of the other.
That is, there are factual scenarios in which one person could be in criminal violation of having unlawfully provided a gun without the recipient being in unlawful possession of that gun, and there are factual scenarios in which one person could be in criminal violation of unlawful possession of the gun without the gun having been provided unlawfully.
The crimes might occur simultaneously with each other, as the prosecution argued with respect to Kyle and Black (mistakenly, on the facts), but that need not necessarily be the case, as each is a distinct criminal offense, and neither requires the other.
Now, there are criminal offenses that cannot exist without the simultaneous presence of some other criminal offense, where one is a required element of the other or a predicate of the other. In that circumstance, the loss of the second required offense or predicate offense means that they both legally dissolve. In such a case, one charge does disappear because the other has disappeared.
The charge of being an accessory to a crime, for example, requires the underlying predicate crime–such as someone being the lookout for a burglary actually being committed by another person. If someone has been charged as an accessory to burglary, but then it’s determined the other person’s conduct was not burglary, then the accessory charge dissolves as a matter of law. The accessory charge cannot exist without the underlying predicate crime. In our example there can be no accessory to burglary without the underlying predicate burglary.
The accessory to burglary charge disappears because the burglary charge has disappeared.
Similarly, the crime of felony murder requires an underlying predicate felony. If someone is charged with felony murder, but then the underlying crime is determined to be a mere misdemeanor or not a crime at all, the felony murder charge dissolves as a matter of law. The felony murder charge cannot exist without the underlying predicate felony.
The felony murder charge disappears because the felony disappeared.
Now, in theory, the Wisconsin legislature could have created such a dependency between the Black gun charge and the Kyle gun charge, such that one could not exist in the absence of the other. In that case, the dismissal of one would necessarily result because of the dismissal of the other.
That, however, is not Wisconsin law. There exists no such predicate relationship between the unlawful gun possession charge against Kyle and the unlawful gun provision charge against Black. They are unrelated criminal offenses, with neither being a required element or predicate of the other–they each stand alone, each independent of the other.
Because they each stand alone, neither automatically gets dismissed or dissolved as a matter of law simply because the other no longer exists. Whether Black is guilty of unlawful gun provision is not dependent on whether Rittenhouse is guilty of unlawful gun possession, and vice versa.
Two distinct criminal offenses, neither requiring the presence of the other.
Or, as I said on Tim’s show, there’s no legal reason why Black’s unlawful gun provision charge would be dismissed simply because Kyle’s unlawful gun possession charge was dismissed.
And that’s 100% correct. It was correct on Tim’s show, and it still is correct today.
Now, there’s a different question that I was not answering–and if I had been answering the different question my answer would have been different.
And I’m afraid there are a lot of people who heard me answer the question of whether Black’s charge gets dismissed because Kyle’s charge got dismissed, and imagined that I was answering this entirely different question.
What’s the different question? This: does the unlawful gun provision charge against Black share the same “exclusion” provision as does the unlawful gun possession charge against Rittenhouse? In other words, is there a common “exclusion” mechanism that can apply independently to each charge, regardless of the status of the other, or even if the other was ever charged at all?
As it happens, the answer to that question is yes–the unlawful gun provision charge against Black happens to enjoy the same “exclusion” provision as does the unlawful gun possession charge against Kyle.
Accordingly, Black’s gun charge should be dismissed for the same reason Kyle’s gun charge should be dismissed.
But that’s not the same thing as saying that Black’s charge should be dismissed because Kyle’s was dismissed–there is no because, because the two statutes are not dependent on each other. Each ought to be dismissed on its own legal merits, and that would be true even if the second charge had never been brought. Again, there is absolutely no dependency between the two at all.
The question I answered on Tim’s show was whether Black’s charge gets dismissed because Kyle’s charge got dismissed, and the answer to that question was correctly answered no, is correctly answered no, and remains correctly answered no, unless the relevant statutes are changed sometime in the future.
The question that I was not answering on Tim’s show was whether the “exclusion” language that applied to Kyle’s gun charge also applied to Black’s gun charge. It should go without saying that I can’t very well provide a wrong answer to a question I wasn’t answering in the first place.
Now, had I been asked on Tim’s show whether the “exclusion” language applied to both charges, I would have answered “I don’t know”–my interest is not gun law, it’s use-of-force law, and so I’ve no great interest in the criminal charge against Black and hadn’t bothered looking at it closely prior to my appearance on the show.
But I wasn’t answering that question.
The question I was answering was whether Black’s charge gets dismissed because Kyle’s charge got dismissed–is one dependent on or a predicate of the other–and the correct answer to that question, as provided on the show, is “No.”
The question I actually answered: Does Black’s gun provision charge get dismissed because Kyle’s gun possession charge got dismissed? No, because there’s no dependency between the two distinct criminal offenses, either can exist independently of the other.
The question I was not answering: Does Black’s gun provision charge get independently dismissed on the same grounds as Kyle’s gun possession charge got dismissed. The answer to that question is yes, they both independently benefit from the same exclusion provision.
Anyone conflating those two questions shouldn’t be surprised when they are confused by even the correct answers.
Hopefully, that clears the issue up for anyone who cares, and for those who still don’t get it–my apologies, but my even my powers of explanation are not infinite.
In closing, for any of you who would like to avoid falling into the same broken thinking that led many into the thinking error I’ve just described, you might be interested in this opportunity to gain genuine expertise in the law:
Law of Self Defense ADVANCED Class: Sat. Jan. 8, 2022
Perhaps once every 12 or 18 months we do one of our full-day Law of Self Defense ADVANCED Self-defense Law Classes.
This is a full-day class that’s the equivalent of a law school seminar on self-defense law, applicable to all 50 states, and taught in my usual plain English style without any confusing legalese. This class is taught live by me, streamed to you at your computer using Zoom, and there is plenty of opportunity for live Q&A with me during the class.
Because we allow for Q&A, however, we have to sharply limit the number of seats available, so on the rare occasions when we do one of our Law of Self Defense ADVANCED Self-defense Law Classes, they invariably fill up almost immediately after we announce the date.
And we’ve announced the date for this one: It’s taking place on Saturday, January 8, 2022. If you’ve ever wanted a true mastery of the law of self-defense, here’s the best—really, among the only—opportunities to grab that expertise with both hands.
Again, seats are already going fast, so if you’re at all interested, I urge you to GRAB YOUR SLOT TODAY!
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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