Kyle Rittenhouse, SB8 and the Dangerous Legalization of Vigilante Justice

Posted in: Criminal Law

The not guilty verdict in the Kyle Rittenhouse case was shocking but not surprising. Even before the Kenosha, Wisconsin, jury acquitted him on all counts (intentional and reckless homicide, and attempted murder) for killing Joseph Rosenbaum, Anthony Huber, and for wounding Gaige Grosskreutz, numerous commentators had predicted that he would be found not guilty. They cited a string of judicial rulings favoring the defense, Rittenhouse’s effective testimony on his own behalf, and a less than stellar prosecution performance.

But it is still shocking that we live at a time when a juvenile can cross state lines and carry an assault rifle to help police the scene of a protest, that he can kill two people and escape with no punishment, and that he is now being lionized by members of one of this country’s major political parties.

Rittenhouse, who was then 17, went to Kenosha in August 2020 at the height of the protests that followed the police shooting of Jacob Blake, a Black man. Rittenhouse later said that he had taken up arms to protect businesses from rampaging, disorderly protesters.

He went to enforce a kind of vigilante order in a community stirred to outrage by an act of racial violence. And his vigilantism now has the blessing of a jury of his peers.

Some are praising the Kenosha verdict for upholding the presumption of innocence and the allocation of the burden of proof to the prosecution. They argue that a jury does not have the power to make conduct lawful.

But when a jury acquits, it sends a power message about conduct that can be carried on with legal impunity. The jury verdict tells us what the community finds tolerable or intolerable.

What happened in the Rittenhouse case represents a dangerous legalization of vigilantism, more characteristic of political regimes dependent on paramilitary organizations than of American law’s traditional attitude toward vigilante justice.

But it is not the only sign of this kind of danger.

Passage last spring of the infamous SB8, Texas’ draconian anti-abortion legislation which authorized private enforcement of its prohibitions, is yet another example of the legalization of vigilantism.

SB8 became law on May 19, 2021, between the time Rittenhouse took up his vigilante role in Kenosha and last week’s jury verdict. The law bans abortions six weeks into a pregnancy, but it contains no provision for governmental enforcement of that ban. Instead it authorizes any person to sue medical practitioners or anyone else who helps a woman get such an abortion. And it offers a bounty of at least $10,000 to anyone who succeeds in such a suit.

The Supreme Court is expected to rule on the constitutionality of SB8 soon. But, however it rules, the issue of the legalization of vigilante justice is not going away.

And lest anyone think that SB8 and the vindication of Kyle Rittenhouse are anomalies, law professors Jon Michaels and David Noll, writing in the New York Times in September, note that “[r]ecent years have seen an alarming number of vigilante threats or acts against immigrants seeking asylum, Black Lives Matters protesters and voting rights drives.”

Such threats were regularly encouraged during the administration of Donald Trump, who was what my colleague Jonathan Obert and I have called “America’s first vigilante president.”

Trump used his presidency to encourage vigilantism, regularly “threatening, encouraging, or obliquely endorsing violence directed against individual political opponents and/or racial minorities.”

Michaels and Noll also report that what Texas did in passing SB 8 is part of a growing national trend. “Since the beginning of this year,” they write, “Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams. Additional bills,” they continue, “are in the works across several jurisdictions authorizing parents to sue schools if teachers or outside speakers mention the principles of critical race theory.”

Michaels and Noll are right to note that “the new private enforcement laws endorse what amounts to a civilized form of vigilantism.”

But what they and most other commentators don’t note is the disturbing way in which SB8 and its imitators, as well as the Rittenhouse verdict, invert the traditional relationship of state legality and vigilantism. The vigilante classically operates outside of and against the law — not as a tool of law itself. Legal systems are supposed to centralize the apparatus of law enforcement to protect citizens from vigilante justice.

Obert and I note that the American vigilante tradition can be traced back to the early nineteenth century; it reached its heyday in the years leading up to the Civil War. During that period vigilantism was most prominent in the West and South, where groups formed with the express intent of protecting civic values and white supremacy in a context where they claimed crime and vice were rampant.

From the 19th century to today, vigilantes have seen themselves as defending values and ways of life that they believe the government is not adequately protecting. This commitment to protecting values and a way of life is exactly what Rittenhouse claimed when he went to Kenosha.

It is the motivating force behind SB8 and the growing movement for private enforcement of state laws. As Michaels and Noll put it, “In essence, the states are manufacturing and subsidizing a community of grievance activists. Their work will provide headlines for allies in the right-wing press to stoke the divisions that are necessary for a minoritarian political party…to maintain an active and enthusiastic base.”

And like today’s own brand, earlier outbreaks of vigilantism took root in times of social, cultural, and political transition and in places with high levels of cultural diversity and institutional instability. Vigilantes attack outsiders who, in their view, do not really belong in their community.

It is, of course, not surprising that reactions to the Rittenhouse verdict were divided along predictable political and cultural fault lines, with progressives condemning it and the Republican party celebrating.

New York Representative Jerold Nadler, chairman of the House Judiciary Committee, called on the Justice Department to review the not guilty verdict, calling it a “miscarriage of justice.”

In contrast, Republican Representative Marjorie Taylor Greene tweeted, “Kyle Rittenhouse ACQUITTED on ALL charges! May Kyle and his family now live in peace. Those who help, protect, and defend are the good guys. Kyle is one of good ones.”

Not to be outdone, speaking about the Rittenhouse verdict, Trump told Fox News’s Laura Ingraham, “I think it is a great decision. I was very happy to see it. A lot of people were happy to see it – most people.”

Rittenhouse is scheduled to be interviewed Monday night by Fox News’s leading culture warrior, Tucker Carlson, who called the verdict “a wonderful moment.” The interview will be the icing on the cake for the political party that brought us the January 6 insurrection and SB8.

That party is now the party of Kyle Rittenhouse.

What it offers Americans is a legal regime increasingly used to sanction what Justice Potter Stewart once labeled a world of “revenge, reprisal and retaliation.”

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