Saturday, November 20, 2021

Not-guilty verdict in the Kyle Rittenhouse shooting case was no shock, but sadly, it is likely to have a chilling effect on free-speech rights of those on the left

 

We reported eight days ago about a Western Michigan University law professor who stated that Kyle Rittenhouse trial judge Bruce Schroeder was pulling out all the stops to force an acquittal in the case. Prof. Jeffrey Swartz is a former judge, prosecutor, and defense attorney, so we put a lot of stock in his opinions on the case -- and thus, it was no surprise in this corner of the Web when a jury came back yesterday with not guilty findings across the board.

That's an alarming outcome for the many Americans (including me) who see the case as a relatively straightforward instance of cold-blooded murder, which came after the police shooting of Jacob Blake, an unarmed black man in Keosha, WI. But taken in a broad sense, the Rittenhouse incident might have even darker implications than many of us can even imagine, according to an op-ed at Salon. Columnist Amanda Marcotte sees it as part of a right-wing assault on the free-speech rights of those who do not agree with them. Writes Marcotte:

Indeed, one of the main selling points of the Republican march towards fascism, for its base, is this fantasy of a society where people live in abject terror of their right-wing neighbors, afraid to express progressive opinions or even to admit historical facts about the United States. That much is evident in the GOP base rallying around Kyle Rittenhouse, who has been on trial for shooting three people at a Black Lives Matter protest last year, killing two of them. 

The case itself is mired in of-the-moment debates about who started what violence with who at the protest. But that's not really the reason that Rittenhouse has become a right-wing folk hero. He's become a cipher for widespread anger on the right about the very existence of Black Lives Matter protests, and a desire to use violence to silence anti-racist speech. [The Rittenhouse acquittal], it sends a signal to all the gun nut right-wingers out there: It's cool to show up at Black Lives Matter protests loaded down with guns, which is, of course, about scaring people out of showing up to protest racism in the first place. 

As a jury finding in a Wisconsin trial court, the Rittenhouse verdict should have no precedential impact in other jurisdictions, as a matter of law. But as a practical matter, it certainly could have a chilling effect on the free speech of those who happen to hold left-of-center views. Imagine this scenario: a police shooting, or some other incident that you view as an injustice, happens in your town, and you decide to make your voice heard by attending a protest. As you arrive, you spot several dozen militia types (not actual law enforcement officers), armed with long rifles and plenty of ammunition. Your mind shifts to the Rittenhouse case, where he shot three men and killed two (much of it captured on video) but was not held accountable under the law. Would you turn around and go home? Fearing the possible presence of the militia crowd -- in an era of open-carry laws -- would you decide not to attend at all? 

Marcotte sees this as  a form of right-wing terrorism -- and it probably is working already:

"People cannot freely exercise their speech rights when they fear for their lives," Diana Palmer and Timothy Zick write at the Atlantic. "The increased risk of violence from open carry is enough to have a meaningful 'chilling effect' on citizens' willingness to participate in political protests."

That silencing is the underlying intent is evident, as I noted in yesterday's column, by the fact that a number of Republican legislatures have introduced and even passed laws that make it easy to get away with murdering left-leaning protesters, so long as you run them over with your car. There's a lot of hand-waving about "self-defense" used to justify such awfulness, but the purpose is not exactly hard to see. This is about deputizing ordinary conservatives to suppress free speech — with violence — when the Constitution prevents the government from doing so directly. 

This trend, of course, can go way beyond Kyle Rittenhouse and anything having to do with policing:

The connective tissue between the valorization of vigilante violence against progressive speech and the Texas "bounty hunter" abortion law is not hard to see. As Jill Filipovic argued in her newsletter, the law is "the codification of anti-abortion terrorist tactics" and rooted in the "same urge to publicly shame and humiliate women" and "the impulse toward vigilantism and violence" that drives anti-choice protesters to stake out abortion clinics to heckle the people going inside — or worse, as the long history of anti-choice violence demonstrates. 

That longing from right-wingers to police and abuse their neighbors isn't the only thing that abortion bans have in common with book banning to combat "critical race theory" and Rittenhouse-style intimidation tactics. The right has long used the touchy subject of abortion as a place to field test their ugliest ideas. That extends very much to the right-wing war on free speech.

Under Donald Trump, the Department of Health and Human Services banned doctors at clinics that receive federal funds from even mentioning abortion to patients. As with the "critical race theory" laws that intimidate teachers from even talking about slavery or Jim Crow, the abortion "gag rule" was about creating a Stasi-like environment at public health clinics, where doctors feared even mentioning abortion to patients — even when patients asked for it — out of fear that they might be ratted out to the government. President Joe Biden's administration thankfully repealed the gag rule, allowing doctors to once again direct patients who want abortion to safe options — but the template for the right's war on free speech has been fixed.

As for Rittenhouse, a common question is this: Why in the world was he, a non-resident, in Kenosha, and why did he bring an AR-15 rifle with him? Let's consider some of Rittenhouse's statements about his presence in Wisconsin -- and his actions while there:

(1) Rittenhouse said he was there to protect property -- 

A general principle of law is that you can't use deadly force to protect property. Here is how UCLA law prof. Eugene Volokh puts it:

In nearly all states, you can't generally use deadly force merely to defend your property. (Texas appears to be an exception, allowing use of deadly force when there's no other way to protect or recapture property even in situations involving simple theft or criminal mischief, though only at night,  Tex. Penal Code § 9.42; see, e.g., McFadden v. State (Tex. Ct. App. 2018).) That's where we get the conventional formulation that you can't use deadly force just to defend property.

This conventional formulation, though, omits an important limitation: In basically all states, you can use non-deadly force to defend your property—and if the thief or vandal responds by threatening you with death or great bodily harm, you can then protect yourself with deadly force. So in practice, you can use deadly force to protect property after all, if you're willing to use non-deadly force first and expose yourself to increased risk.

Volokh makes clear that various qualifiers apply in a number of states. But the general principle still holds: You can't use deadly force merely to defend property. So why did Rittenhouse have an AR-15 in Kenosha? As a 17-year-old at the time, Rittenhouse probably was not aware of the law. But he almost certainly was not there to protect property.

(2) Rittenhouse said he wanted to provide medical aid -- 

This borders on laughable. There is no discernible evidence that Rittenhouse has medical training or skills -- or that he rendered aid to anyone in Kenosha.

(3) Rittenhouse said he shot his first victim, Joseph Rosenbaum (yes, we refer to the dead and injured as "victims" here) because he feared Rosenbaum would take his gun and shoot him with it. 

Videos and photos show the gun firmly strapped to Rittenhouse's chest, so how was Rosenbaum supposed to get it away from him? Answer, it almost certainly could not have happened.

(4) Rittenhouse admitted he knew Rosenbaum was unarmed, so how was it self-defense to use deadly force against him?

Under the law, it probably couldn't be self-defense, but jurors apparently made a finding that does not square with the law.

We can reach no other conclusion but this: Rittenhouse traveled to Kenosha with an AR-15 because he knew his presence, with such a weapon, would be intimidating. He wanted to silence, or limit, the voices of protesters -- and he wound up silencing two of them permanently.

Let's give the final word to Amanda Marcotte:

Republicans use the hot button issues of race and sexuality to create oppressive environments, where people like teachers or doctors refrain from speaking even basic truths. This makes ordinary people afraid to go to an anti-racism protest for fear of getting shot or run over by right-wingers, whose murderous impulses are being validated by the courts or state governments. The goal is a society where everyone is looking over their shoulder all the time, scared that a malicious right-winger will make their lives hell for thought crimes like "racism is real" or "women have a right to choose." It's the stuff of what is usually considered dystopian fiction. But for the Republicans, it is apparently what they hunger for America to look like.

11 comments:

Anonymous said...

I think the Salon writer has a point. I certainly would think twice before attending a protest at this point.

Anonymous said...

So this case sets no legal precedent? If so, that's at least a little reassuring.

legalschnauzer said...

My background, of course, is in journalism, not law. But my understanding is that legal precedent is set by appellate courts, not trial courts -- and it certainly is not set by jury decisions. I believe precedent usually comes from rulings by state Supreme Courts, U.S. Circuit Courts, and the U.S. Supreme Court.

That's not to say the Rittenhouse verdict won't have an impact on society, as noted in the post. But it should not be cited to support or strike down future legal rulings.

Anonymous said...

If Rittenhouse's right-wing supporters start throwing cash at him, I wonder if the victims' families might start hitting him with lawsuits.

legalschnauzer said...

That probably is a real possibility. Rittenhouse probably would be wise to check with a financial consultant or lawyer if money starts flowing in. Right-wingers certainly would be wise to find something else to do with their money.

legalschnauzer said...

BREAKING: House Judiciary Chair Jerry Nadler demands that Biden’s Justice Department conduct an official review into Kyle Rittenhouse’s “heartbreaking” not guilty verdict, calling it “a grave miscarriage of justice.”


Doubt anything will come of this.

legalschnauzer said...

From Axios:

Legal scholars say Kyle Rittenhouse's acquittal was no surprise due to the "wide berth the legal system gives to defendants who say they acted out of fear, even if others around them were also afraid," The New York Times reports (subscription).

"Wisconsin’s rules for self-defense are well within the national mainstream. If people reasonably believe they are at risk of death or great bodily harm, they can use deadly force."

Why it matters: The case raised profound issues of self-defense, gun culture and video evidence.

Between the lines: The jury saw video evidence from multiple angles, including drones, livestreams and bystanders' cellphones.

"This is one of those incredibly rare cases where the defendant taking the witness stand may not have been the singular most important issue," ABC News legal analyst Dan Abrams said. Instead, he said, the jurors' request to rewatch video may have told the story.
Former federal prosecutor Elie Honig said on CNN: "This was a split-second, freeze-frame kind of case."

For many Black Americans, the verdict bolstered their belief white people have a different justice system, AP writes.

Video footage played during the trial showed Rittenhouse running toward police still wearing his rifle, and continuing past the police line.

legalschnauzer said...

AP: EXPLAINER: Why did judge drop Rittenhouse gun charge?

Prosecutors in Kyle Rittenhouse’s murder trial may have lost their best chance at convicting the Illinois man of something when the judge threw out a charge that Rittenhouse was a minor in possession of a dangerous weapon.

Rittenhouse shot three men, killing two of them, with an AR-15-style rifle during a chaotic protest against police brutality in Kenosha last year. A jury deliberated about 3 1/2 days before finding Rittenhouse not guilty on Friday of five felony charges, including a murder charge that could have carried a life in prison sentence.

That jury never got to consider the gun possession charge — one that at one time had seemed a slam-dunk for the prosecution. Rittenhouse was 17 at the time, and there was no dispute that he was armed the night of the shootings with a Smith and Wesson AR-style semi-automatic rifle strapped to his chest.

Though the charge was only a misdemeanor — punishable by a maximum nine months in jail — it might have offered the jury a way to convict Rittenhouse of a lesser crime if they were persuaded by his self-defense claims but agreed with prosecutors that he made a poor decision to carry a rifle on the streets of Kenosha.

So what happened?

Hours before closing arguments began on Monday, Judge Bruce Schroeder granted a defense motion to toss out the weapons charge. Rittenhouse attorneys Mark Richards and Corey Chirafisi pointed to an exception in the law that they said allows minors to possess shotguns and rifles as long as they’re not short-barreled.

Assistant District Attorney James Kraus argued that the exception renders the state’s prohibition on minors possessing dangerous weapons meaningless. But when he acknowledged that Rittenhouse’s rifle’s barrel was longer than 16 inches, the minimum barrel length allowed under state law, Schroeder dismissed the charge.

Though the charge was only a misdemeanor — punishable by a maximum nine months in jail — it might have offered the jury a way to convict Rittenhouse of a lesser crime if they were persuaded by his self-defense claims but agreed with prosecutors that he made a poor decision to carry a rifle on the streets of Kenosha.

So what happened?

Hours before closing arguments began on Monday, Judge Bruce Schroeder granted a defense motion to toss out the weapons charge. Rittenhouse attorneys Mark Richards and Corey Chirafisi pointed to an exception in the law that they said allows minors to possess shotguns and rifles as long as they’re not short-barreled.

Assistant District Attorney James Kraus argued that the exception renders the state’s prohibition on minors possessing dangerous weapons meaningless. But when he acknowledged that Rittenhouse’s rifle’s barrel was longer than 16 inches, the minimum barrel length allowed under state law, Schroeder dismissed the charge.

Though the charge was only a misdemeanor — punishable by a maximum nine months in jail — it might have offered the jury a way to convict Rittenhouse of a lesser crime if they were persuaded by his self-defense claims but agreed with prosecutors that he made a poor decision to carry a rifle on the streets of Kenosha.

So what happened?

Hours before closing arguments began on Monday, Judge Bruce Schroeder granted a defense motion to toss out the weapons charge. Rittenhouse attorneys Mark Richards and Corey Chirafisi pointed to an exception in the law that they said allows minors to possess shotguns and rifles as long as they’re not short-barreled.

Assistant District Attorney James Kraus argued that the exception renders the state’s prohibition on minors possessing dangerous weapons meaningless. But when he acknowledged that Rittenhouse’s rifle’s barrel was longer than 16 inches, the minimum barrel length allowed under state law, Schroeder dismissed the charge.

The wording is hardly straightforward. Schroeder himself said he was confused about it when Richards first asked him to toss the possession charge out earlier this year.

legalschnauzer said...

WaPo: Kyle Rittenhouse acquittal sparks sporadic protests and Portland clashes — but Kenosha remains peaceful

There were sporadic demonstrations across the United States on Friday evening after a jury cleared Kyle Rittenhouse of all criminal charges for fatally shooting two people and injuring a third during mass protests in Wisconsin against police violence last year.

Wisconsin Gov. Tony Evers (D) placed 500 National Guard members on standby ahead of the verdict in Kenosha. But, although protesters gathered outside the courthouse and expressed disappointment at the verdict, there were no signs of major clashes or unrest there Friday night or early Saturday.

A local pastor, the Rev. Monica Cummings, led a prayer vigil Friday evening and urged the Kenosha community to “begin the long process of healing.” Her remarks echoed those of President Biden, who on Friday asked that people “express their views peacefully, consistent with the rule of law.”
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The relative calm in Kenosha was a contrast to last year, when the police shooting of Jacob Blake, a Black man who was wanted for alleged sexual assault, set off peaceful protests and then bursts of rioting and property damage in the city. Blake survived the shooting but was left partially paralyzed.
There were celebrations and skirmishes outside the county courthouse in Kenosha, Wis., on Nov. 19 as Kyle Rittenhouse was acquitted on all counts. (James Cornsilk, Laura Dyan Kezman/The Washington Post)

Rittenhouse had traveled to Kenosha from his home in Antioch, Ill., to join armed civilians who took to the city’s streets amid the unrest, when he shot the three men.

Rittenhouse acquittal magnifies divisions in a polarized America

Friday’s acquittal also sparked protests in Portland, Ore., and Brooklyn. In Portland, which has seen multiple street clashes between left- and right-wing activists, police declared a riot, saying protesters tried to breach the Justice Center building and threatened to “burn it down.”

There were also reports of vehicle windows being smashed, and the windows of a city print shop also were smashed, police said, adding that one arrest was made for a warrant and that five citations and 17 warnings were issued.
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Demonstrators rallied in the Loop neighborhood of Chicago on the night of Nov. 19, peacefully protesting the acquittal of Kyle Rittenhouse in Kenosha, Wis. (Tyler Lariviere/AP)

In New York, about 300 people protested outside the Barclays Center in Brooklyn. About 10 people held signs in front of the entrance in remembrance of Joseph Rosenbaum and Anthony Huber, the two men shot dead by Rittenhouse.
Crowds of protesters took to the streets of New York on Nov. 19 after a Wisconsin jury acquitted Kyle Rittenhouse of all charges against him. (Ben Von Klemperer via Storyful)

Anonymous said...

I don't agree with any of what has happened but...he received his constitutionally guaranteed trial by a jury of his peers and it will continue to flow through the judicial system. People who disagree with the outcome can look at writing laws to actually protect people including teenagers who are led to believe carrying a weapon of war to a riot is ok. They need to actually design laws to protect all victims and that make it obvious that accountability comes first instead of laws that lobbyists and special interests want to serve them best. Prosecutors need to focus on enforcing instead of self promoting. But they don't need to waste more tax dollars on trying to second guess a jury who probably didn't want the job to begin with but did their best..or were tasked to. I think about how long this country has existed and each of those years a new bunch of politicians writes a new list of laws and yet this kid didn't get how wrong his approach to the problem was...after over 200 years of laws being on the books. Victims can't be given their family back. The idiot Rittenhouse will probably buy more weapons while all this effort is being spent on trying to force a new outcome. It's done. Focus on preventing it in the future...not reversing the outcome now.

legalschnauzer said...

@7:43, Thanks for an excellent comment. Thoughtful and well stated.