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Wednesday, August 26, 2020

Civil rights puzzles in the Kenosha shooting (Updated)

Seventeen-year-old Kyle Rittenhouse was arrested and charged with killing two people and shooting a third during protests in Kenosha. According to reports, Rittenhouse considered himself a part of the militia and was hanging around with adult members of a group called the Kenosha Guard, which had put out a call for people to come protect property.

In a Facebook posted addressed to Kenosha's Chief of Police, the group urged KPD not to send members home in enforcing the curfew and seeking to "open a discussion" with KPD. The Kenosha County Sheriff said he fielded a call urging him to deputize armed citizens to patrol the streets, which he declined to do. But video from early in the evening (prior to the shooting) showed a law enforcement officer giving water* to a group of armed civilians (apparently including Rittenhouse) who are out past the 8 p.m. curfew and expressing appreciation for their being there in all their armed cosplay glory. Police also allowed Rittenhouse to leave the scene following the shooting, with an automatic a semi-automatic weapon over his shoulder, as witnesses identified him as the shooter.

[*] The sheriff insisted that his officers would give water to anybody. I am waiting for the video of police officers sharing water with people protesting police violence.

So, some possibilities (conceding that more and more accurate facts may emerge): A civil rights prosecution against Rittenhouse, based on some joint-participation theory. By expressing appreciation for their armed presence in a protest zone, not telling them to leave at curfew time, and supporting his efforts by sharing water, the police implicitly encouraged or supported Rittenhouse in his subsequent actions, making him a state actor. True, it is not Cecil Price agreeing to deliver Goodman, Chaney, and Schwerner to the Klansmen. But the officers sent a message.

Alternatively, a § 1983 action against the water-bearing officer (if not the department). This could be based on a state-created danger theory--the officer encouraged Rittenhouse and let him believe he could play cop with impunity, thus worsening the situation for the protesters and subjecting them to a greater risk of violence. (The Seventh Circuit has been forgiving in some SCD cases). Or on race- or speech-based retaliation theory--he encouraged the white person supporting the police, perhaps suspecting he might act against non-whites critical of police.

Update: The Chief of Police said that part of the problem was people being out after curfew and that if people respected the curfew they would be protected. But Rittenhouse was out after curfew and instead of telling him to take his large gun and go home, police gave him water. They are not helping themselves.

Posted by Howard Wasserman on August 26, 2020 at 04:40 PM | Permalink


At least some people (including one op-ed writer in the NYT) claim that it is a class A misdemeanor for a minor to openly carry a firearm in Wisconsin. I'm not an expert on Wisconsin law and don't have a view on whether this is true or not.

In any event, it's irrelevant to the only important legal issue here, which is whether the shooter has a good self-defense claim to the charges of first and second degree murder and attempted murder. That seems to me to be purely a fact question: Did the shooter reasonably believe his life was in danger or that he was in danger of serious bodily harm when he fired his weapon? I guess a jury will have to decide that question unless the case pleads out. Of course, even if the the jury finds that the shooter acted in self-defense, they might find him guilty on the misdemeanor open carry charge, assuming that's actually a thing.

Any federal charges here would be a stretch, to put it mildly.

Posted by: Douglas B. Levene | Aug 28, 2020 7:07:25 PM

Once again, thanks to @thegreatdissapointment for providing context and filling up some of the blank spaces left in the original post.

Personally, I find the following paragraph written by the original author to be unbecoming of a law professor:
"If there were evidence outside right-wing fever swamps showing that he acted in self-defense, it would have emerged. And the police would not have charged him with First Degree murder if they could have charged a lesser offense. I have not seen it. Maybe I will turn out to be wrong."

We do not wait for evidence to emerge before reaching conclusions as to someone's guilt? We forget that police always overcharges as a bargaining tactic? Would we be that impatient and forgetful under a different set of circumstances?

I cannot imagine what it must feel like to be a law student these days if this is what goes on in class.

Posted by: theRealAnonymous | Aug 27, 2020 1:49:04 PM

For those interested, here's a thread from NYT on the shooting. Given that the NYT's would pounce on any chance to decry this kid as a crazy militia member, the shockingly professional attempt at journalism is worth looking at.


Posted by: thegreatdisappointment | Aug 27, 2020 10:10:23 AM


"And the police would not have charged him with First Degree murder if they could have charged a lesser offense."

Posted by: thegreatdisappointment | Aug 27, 2020 9:41:57 AM

I didn't say #4 or anything close to it.

Posted by: Howard Wasserman | Aug 27, 2020 8:58:43 AM

1. https://twitter.com/AntifaWatch2/status/1298649108585099264
Here's video that clearly shows the teenager trying to retreat. The child molester then throws something at him, and continues to chase him.

2. After this shooting, the teenager continued trying to retreat. That's when the mob attacked him and he shot two more. Incidentally, each one he shot threatened him. One was jumping up to kick him. One was beating him with a skateboard, and one held a pistol. What's even more interesting, is that the teenager didn't shoot the guy with the pistol until the guy with the pistol lunged at the teenager.

3. Once that mob left, the teenager *continued* retreating.

4. Your contention: "he was charged with this crime rather than a lesser crime, so obviously he is guilty of this crime" is distressing. Actually, it's scary.

Posted by: thegreatdisappointment | Aug 27, 2020 8:49:04 AM

If there were evidence outside right-wing fever swamps showing that he acted in self-defense, it would have emerged. And the police would not have charged him with First Degree murder if they could have charged a lesser offense. I have not seen it. Maybe I will turn out to be wrong.

If you want to make substantive relevant points without being robnoxious, I will leave the comments up. If you are obnoxious, I will take it down. If you don't want me to delete the comment, don't be obnoxious. Not complicated.

The § 242 argument is weaker than the SCD argument; I should have made that clearer. You may be right that a more conscious agreement between individual and officer is necessary.

Posted by: Howard Wasserman | Aug 27, 2020 8:00:39 AM

The idea that Rittenhouse opens himself up to a totally new crime by taking water from the police seems troubling to me. Surely that can’t be compatible with the rule of lenity and clear statement rules. Surely he couldn’t have reasonably foreseen that this would open him up to this new crime. Especially since he wouldn’t have had knowledge of how the police treated others with different views.

Indeed, I find it hard to imagine a bright line rule for when you are implicitly a government actor that includes this situation which wouldn’t be unconstitutional as infringing on the 1st amendment. You don’t want to transform a non-crime into a crime because the individual involved expressed support for the government.

Posted by: Peter Gerdes | Aug 27, 2020 1:13:42 AM

To be clear, Howard, you're mad at the kid with the rifle, but you're ok with the protester who got shot in the arm who pointed the gun at the kid, right?

Posted by: thegreatdisappointment | Aug 27, 2020 12:36:46 AM

Good to know that Howard is ok with a mob chasing a guy down in the street and then trying to beat him.

Posted by: thegreatdisappointment | Aug 27, 2020 12:36:06 AM

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