Kyle Rittenhouse, a person who killed two people and wounded a third will be going home.
There is no denying that he has blood on his hands. His deceased victims, Anthony Huber, 26, Joseph Rosenbaum, 36 and the surviving victim Gaige Grosskreutz, now 27 have been spun into aggressors. Instead of facing responsibility the jury rewarded him for his tears and accepted his claim of self-defense by acquitting him last week.
Before the verdict was read, I was preparing for the worst and so were many other African Americans. Sadly, the current state of our criminal justice system did not disappoint. From the beginning, when Rittenhouse left the crime scene to go home, it was apparent that he would not be exposed to the same criminal justice machine that has wreaked havoc in communities of color.
The trial itself was a sort of controlled circus with a judge who seemed unconcerned with the appearance of impropriety and a bumbling prosecutor who commented on Rittenhouse’s constitutional right to remain silent. In spite of the embarrassing players within the criminal justice system, Rittenhouse would likely have escaped responsibility regardless.
One of the saddest parts of the verdict is the message it sends to others. Rittenhouse, who caused the death of two people, confidently said in his testimony that he did nothing wrong – and the jury agreed. The truth is, Rittenhouse did a lot of things wrong, if not legally, then morally. He is no hero but rather a recipient of the benefit of the doubt from the moment he showed up at the protest with an assault rifle until the not guilty verdict.
The best way to explain Rittenhouse is probably to set it in a typical law school hypothetical.
Imagine a Black man named “Instigator” going to a meeting where he knew there would be white supremacists. Imagine that “Instigator” was not only armed but was visibly holding an AR-15 assault rifle. Imagine the white supremacists lunge to disarm the Instigator and some begin chase.
“Instigator” will later claim he was being attacked so he shoots and kills two. If we were only strictly looking at the law, he would be in trouble in most states, except Wisconsin. Unlike the majority of states that require the defendant to prove self-defense, in Wisconsin, the prosecution would have to prove beyond a reasonable doubt that the Instigator did not act in self-defense. Proving a negative is almost impossible to do.
The Rittenhouse case shines a light on the problem with bad laws. It is also a case about white privilege.
In the above hypothetical, “Instigator” probably would never see a courtroom because there’s a good possibility that Instigator would probably have been shot by the police. After all, Tamir Rice, a 12-year-old child playing with a toy gun was shot dead within seconds of the police arriving. It is doubtful that “Instigator” would have been allowed to walk the streets in public with an AR-15 during a protest, approach a police car and get offered a bottle of water. It is doubtful that after shots were fired that “Instigator” could have been observed walking from the scene with an AR-15 and his hands raised while the police sped past him, allowing him to go home. It is doubtful that large amounts of money would have been raised for his defense. It is this reality that makes the jury’s verdict difficult to swallow but legally correct.
Although in an ideal world, criminal cases do not send messages or influence behavior and policy, we do not live in an ideal world. What Rittenhouse and the public heard was not that he escaped punishment because of a bad law; rather he escaped punishment because he did nothing wrong. He will be seen as a hero of Second Amendment rights. Nothing could be further from the truth.
While Rittenhouse claimed he wanted to support the police, showing up with a loaded military-style semi-automatic rifle is not a show of peace and goodwill. It is a show of force and terror.
In the context of Black Lives Matter protests regarding the shooting of Jacob Blake in the back, it is also a show of white supremacy. There are many ways to support members of law enforcement, including providing meals, donations, and encouragement. Deputizing oneself and brandishing an assault rifle at a protest did not support law enforcement, it escalated an already tense situation.
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Of course, there were other bad actors at the protests. There are some who see night time protests as an opportunity to steal, and commit other crimes. There is no evidence that Rittenhouse’s victims were present with ill motives. If anything, Rittenhouse’s victims were motivated to diffuse a gunman with an agenda and things escalated.
In most states in the country, a person cannot go into an area armed and ready to pick a fight and then claim self-defense later. In most states, Rittenhouse would be viewed as a bad actor who made the first act of aggression by bringing an assault rifle to a protest. But this case happened in Wisconsin, the same place where a Black man can be shot seven times in the back and the officer never charged. Should we really be surprised?
Njeri Rutledge is a legal expert, law professor, speaker, writer and former prosecutor. She serves as an Ambassador with The OpEd Project and a tenured professor at South Texas College of Law Houston. Follow her on Twitter @njerirutledge.
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