A young man in Wisconsin, Kyle Rittenhouse, is on trial for shooting three men, killing two and injuring one, during protests in Kenosha following the police shooting of a Black man, Jacob Blake. Shortly before the trial began, the trial judge entered a conditional ruling that should concern everyone. It flouts common sense, is legally tenuous, and worse, conveys a troubling message: the defense may be allowed to refer to the three men who were shot as “rioters,” “arsonists” or “looters,” but the prosecution may not refer to the men as “victims” because that is a “loaded word.”
True, juries decide who is, or is not, a victim in a legal sense. But American judges routinely allow prosecutors to describe people injured or killed as “victims” in jury arguments. Imagine a domestic violence trial in which the judge would allow the husband’s defense to refer to the wife as a “brawler” but not allow the prosecutor to describe her as a “victim.” We can’t.
A fair defense is essential, but this is not that: It risks excusing vigilantism. And skewing the contest by favoring one side’s argumentative rhetoric over the other carries further risk.
Expanding a claim of self-defense
Miles away, three older white men in Georgia are on trial for killing a Black man, Ahmaud Arbery, who was jogging in the neighborhood. They suspected him of property crimes and tried to make a lawful “citizen’s arrest,” they said. The relevant Confederate-era Georgia law, since repealed, was enacted primarily to assist white people in continuing to dominate slaves and other Black people. According to the defendants, the man they killed was suspected of wrongdoing, so they had a legal privilege to take his life.
Both cases resonate with a third — the 2013 trial of “neighborhood watch captain” George Zimmerman for killing unarmed Black teenager Trayvon Martin, whom he described as a “suspicious person” in a 911 call. Advised not to confront that person, Zimmerman did anyway and shot him to death. Zimmerman, who did have face and head injuries, later was acquitted.
We don’t know who is guilty or not. Jurors should and will decide that. But here the similarities are chilling. In each case, a claim of self-defense is being expanded into a pass to use deadly force against another person the defendant simply suspects of doing something unlawful. That’s not American law.
Unless another’s unlawful conduct presents a reasonably perceived and imminent risk of death or great bodily injury, a deadly response is not self-defense: it is a crime. We cannot provoke violence and then claim to be the victim of it.
Suppose a woman is walking with her 12-year-old son on a city sidewalk. She is approached by a man who pulls a gun and demands her wallet; he threatens to kill her and her son if she refuses. She lawfully may respond with deadly force (unwise though that might be), firing her own handgun in defense of self or in defense of a third person, her son, or both.
Now suppose that the man she sees does not confront her or her son at all, but instead is 100 yards ahead wielding a hammer against a shop window. She may call 911. She may yell or try to dissuade him. But she may not pull her gun, threaten him, and then shoot him.
On the reported facts so far, both ongoing trials look more like vigilantism than legitimate self-defense. No state allows for that. No civilized society should.
As a country, we have been rightly concerned about police use of deadly force and the role race plays in determining whom they suspect of crimes, and who police harm or kill. But the police at least are trained. To suggest that the right to use deadly force extends to private citizens who suspect a crime and who then provoke violence is to lurch in the wrong direction.
Not everyone agrees on what should be done about pervasive problems in policing. But there should be broad agreement about the harms of vigilante justice and its frequent racial bias.
If by changing common practice in American courts this Kenosha judge silently invites a jury to acquit Kyle Rittenhouse contrary to law, then he also will be engaging in a form of vigilante justice. Or at least endorsing it.
Nancy Gertner is a former federal judge in Boston and is now a professor at Harvard Law School. Dean Strang is a Loyola University-Chicago law professor and a criminal defense lawyer in Madison, Wisconsin.
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