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In the aftermath of the Rittenhouse verdict, figures on both sides of the case are threatening new filings and investigations.
It seems likely that the case will move into a new stage of litigation, particularly civil litigation. However, advocates on both sides may be overstating the basis for a Rittenhouse 2.0. These lawsuits can come with risks and considerable costs. That is why Voltaire once lamented “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.”
Here’s a look at how things could go:
RITTENHOUSE AS A FUTURE DEFENDANT
Federal Action from the Justice Department
Immediately following the verdict, House Judiciary Committee Chairman Jerry Nadler called for the Justice Department to investigate the “miscarriage of justice.” Others have called for a federal civil rights case against Rittenhouse.
The Justice Department does not have an office for the prosecution of “miscarriages of justice” due to errant jury decisions.
Rittenhouse was acquitted on state charges by a state jury. Moreover, while some have called for reducing self-defense protections, the jury applied the law as it currently appears on the books. It is not allowed to simply ignore the law to seek our own criminal justice rules.
The Rittenhouse jury faithfully applied the Wisconsin law and came to a well-founded verdict of acquittal. It is a dangerous precedent to investigate jury decisions simply because you disagree with their decisions.
There is also no clear basis for a civil rights prosecution. Rittenhouse is white and shot three white men. He was not accused of a hate crime. Moreover, he is not a member of law enforcement or government agency, so he did not deprive anyone of their civil rights under federal law.
Rittenhouse could face lawsuits from the families of the deceased or from Gaige Grosskreutz, who survived being shot in the arm. That includes wrongful death actions much like the litigation against O.J. Simpson after he was acquitted for the killings of his ex-wife, Nicole Brown Simpson, and her friend Ronald Goldman. However, he was then found guilty in a torts lawsuit brought by the Goldman family and ordered to pay $33.5 million. Those damages later rose to $58 million.
The risk of such torts actions is that they proceed under a lower standard of proof. Rather than shouldering the “beyond a reasonable doubt” standard of the prosecution, the plaintiffs would have to only prove responsibility by a “preponderance of the evidence.” However, that is no guarantee of conviction.
All three men attacked or threatened Rittenhouse before he used his weapon. The common law protects not just self-defense but mistaken self-defense where a person may have erroneously (but reasonably) thought that he was under attack.
When attacked, Rittenhouse is authorized under common law to use commensurate force. While Wisconsin does not have a “Stand Your Ground” law, the common law has always recognized such a right and did not require a person to retreat before using force.
There is also more leeway in the admission of evidence in civil cases on both sides. That could further complicate any recovery by these plaintiffs.
Finally, Wisconsin is a “modified comparative negligence” state. Accordingly, any plaintiff (or his estate) is barred if he is 51 percent or more at fault.
RITTENHOUSE AS A FUTURE PLAINTIFF
Rittenhouse does not have a viable claim for wrongful arrest or prosecution given the fatalities in the case and the reasonable disagreement of the need to use lethal force.
However, many commentators have suggested that he has a strong case for defamation against President Joe Biden and many in the media for calling him a “white supremacist,” “domestic terrorist,” and “murderer.”
There is no question that Rittenhouse has been subject to false and harmful claims in the media. Indeed, many watching the trial were surprised by the sharp disconnect between what they had seen on the case in the media and what was being presented in court.
Such defamation cases however are notoriously difficult to win and the odds are against Rittenhouse in prevailing on these characterizations of prejudice or guilt.
It is likely that Rittenhouse will be considered a limited public figure or public figure given the notoriety of the case and his public defenses.
The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.”
A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
If a court finds such a status, he would be subject to a higher standard of proof under in New York Times v. Sullivan. This is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter.
The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures.
Moreover, courts are highly protective of “opinion” statements. People are allowed to reach a different conclusion from the jury in calling Rittenhouse a murderer or to characterize his actions as racist given the subject of the underlying protests. That does not mean that they are right or fair. There is no evidence that Rittenhouse is a white supremacist. However, courts give a wide berth to free speech in such public controversies.
Many cite the litigation by Nicholas Sandmann, a former high school student who was widely and unfairly accused of abusing a Native American at a pro-life event at the Lincoln Memorial.
Reporters latched on to the fact that he was wearing a MAGA hat and called a racist and falsely accused of starting the confrontation.
He sued and settled with some media outfits. However, courts rejected his claims based on being labeled a racist. Where he prevailed was on statements that he “blocked” the activist at the scene.
There may be more specific false statements like those in Sandmann’s case but the characterizations of his motivations or beliefs will be the most challenging to litigate.
Finally, there is likely to be litigation over who receives the $2 million bond posted in the Kyle Rittenhouse. Now that he has been acquitted, the bond ordinarily goes to the defendant. However, his previous lawyer, Lin Wood, and his organization Fightback Foundation claim the money.
In a letter sent to Kenosha County Circuit Court Judge Bruce Schroeder, Kenosha attorney Xavier Solis wrote that the money should be returned to Fightback:
“These funds were transferred by the Fightback Foundation to the Pierce Bainbridge Law Firm’s trust account and paid by attorney John Pierce on behalf of, and as an agent for, the Fightback Foundation.
Accordingly, the $2 million shall be returned to the Fightback Foundation, if and when such funds are released consistent with Wisconsin law and pursuant to court rulings releasing the bail money back to the individual or entity that posted the cash bail.”
That presents a novel question. The court received the money on behalf of Rittenhouse. The family also claims that his mother raise a fair amount of the bail money. This could come down to a contractual dispute if Rittenhouse expressly agreed that this was a loan to be returned to the foundation. If not, the court could just return the money to Rittenhouse and have the lawyers sue to the family for recovery of owed funds.
What is clear is that that Rittenhouse case (like the Simpson and Sandmann cases) will continue for years. Indeed, Sandmann is still awaiting trial on some of his defamation claims.
This is why Thomas Edison once remarked that “a lawsuit is the suicide of time.”
This column is adapted from a post on the author’s blog: JONATHAN TURLEY/Res ipsa loquitur – The thing itself speaks.
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