Criminal Law

Many State Laws Tend to Support Vigilante Justice: How the Law Helped Kyle Rittenhouse and Travis McMichael

  In the trial of Kyle Rittenhouse there were few facts in dispute. Rittenhouse, who has demonstrated some white supremacist inclinations, traveled from Illinois to Kenosha, Wisconsin. He brought an assault rifle with the ostensible purpose of defending business property from looting and destruction related to ongoing protests stemming from the previous shooting of an unarmed black man by police in Kenosha.

Wisconsin law permitted Rittenhouse to publicly carry a firearm with a barrel more than 16” long. When Rittenhouse ran toward a used car lot with his rifle and a fire extinguisher, a protester pursued him. Rittenhouse shot the man pursuing him and killed him. Other protesters started reacting with hostility, crying “why did you shoot him?” Rittenhouse then fled the scene. He was pursued and attacked by two other men who were trying to prevent Rittenhouse from departing the area. Rittenhouse shot and killed one man, who attacked Rittenhouse with a skateboard, and shot and wounded another man, who was pointing a handgun at Rittenhouse.

The trial involving the death of Ahmaud Arbery also involved self-appointed citizen police officers. In the town of Satilla Shores, Georgia, surveillance video showed Arbery quickly run in and out of the garage of a home under construction. Travis McMichael and two other men from the neighborhood saw Arbery running down the street. Armed with shotguns and pistols, the vigilantes jumped in a pair of trucks and went off in pursuit. Brandishing their weapons, they ran Arbery off the road, yelling, “we want to talk to you.” 

Travis McMichael got out of the truck with his shotgun, when Arbery, no doubt feeling cornered, attempted to fight back and grabbed the shotgun, trying to tear it from McMichael’s arms. During the struggle McMichael shot Arbery three times, killing him. All of the men involved in the Arbery shooting were permitted to carry guns under Georgia’s “open carry” law. At the time McMichael shot Arbery, Georgia law also  permitted one citizen to arrest another if the citizen had “reasonable suspicion” to believe his fellow citizen had committed a felony crime and there was no police officer on the scene. Georgia law also provides that entering a home under construction without permission constitutes a felony.

Rittenhouse was acquitted of the charges against him. Because he was legally carrying the firearm, this result was unsurprising given the evidence that he acted in self-defense. The State relied on the theory that he provoked the attack against him, but the evidence that Rittenhouse provoked the protester who attempted to disarm him was weak. Moreover, one must bear in mind that once a self-defense claim has some evidentiary support, under Wisconsin law, it was the prosecutor’s burden to disprove it beyond a reasonable doubt.

The facts of Arbery killing are, if anything, more disturbing than those in the Rittenhouse case. Arbery’s “crime” was simply running in and out of an empty garage. Being a black man in Georgia, confronted by three armed, hostile men, his decision to defend himself seems entirely reasonable. Once again, however, the self-appointed citizen police have the law on their side. Incredibly, Georgia law permits any citizen to carry a weapon and employ it to arrest another citizen so long as they have “reasonable suspicion” to believe the individual whom they are arresting committed a felony. 

The jury, however, found all three men involved in Arbery’s shooting to be guilty of murder. Despite the law being favorable to the defendants, most of society seems reluctant to embrace the dubious proposition that any citizen should be permitted to effect the armed arrest of another citizen based on their suspicion that the other citizen committed a crime. If trained police officers occasionally get it wrong and use unnecessary deadly force, what can one expect to happen when any untrained but armed individual is the one making instantaneous life and death decisions? The verdict in the Arbery case demonstrates that even with laws that strongly favor vigilante actions, when the issue goes to the jury, common sense often will prevail.

For all the gun rights supporters who are cheering the actions of these vigilantes, I wonder what their reaction will be when the self-appointed police claiming these legal protections and doing the shooting are black, or ANTIFA, and those being shot are white. I’m waiting for the case when some black individual shoots an innocent white person, who for some reason, appears to be doing something suspicious while walking through a predominantly black neighborhood.

Author: Attorney Mick Mickelsen – Dallas Murder Defense Lawyer 

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