By Nancy Gertner and Dean Strang

November 8, 2021

To read on the Chicago Sun Times website, click here.

A young man in Wisconsin, Kyle Rittenhouse, is on trial for shooting three men, killing twoand 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 thatshould concern everyone. It flouts common sense, is legally tenuous, and worse, conveys atroubling 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 judgesroutinely allow prosecutors to describe people injured or killed as “victims” in juryarguments. Imagine a domestic violence trial in which the judge would allow the husband’sdefense 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 skewingthe 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, AhmaudArbery, who was jogging in the neighborhood. They suspected him of property crimes andtried to make a lawful “citizen’s arrest,” they said. The relevant Confederate-era Georgialaw, since repealed, was enacted primarily to assist white people in continuing to dominateslaves and other Black people. According to the defendants, the man they killed wassuspected 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” GeorgeZimmerman 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 didanyway and shot him to death. Zimmerman, who did have face and head injuries, later wasacquitted.

We don’t know who is guilty or not. Jurors should and will decide that. But here thesimilarities 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 doingsomething unlawful. That’s not American law.

Unless another’s unlawful conduct presents a reasonably perceived and imminent risk ofdeath or great bodily injury, a deadly response is not self-defense: it is a crime. We cannotprovoke 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 approachedby a man who pulls a gun and demands her wallet; he threatens to kill her and her son ifshe 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 is100 yards ahead wielding a hammer against a shop window. She may call 911. She may yellor 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 legitimateself-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 rolerace plays in determining whom they suspect of crimes, and who police harm or kill. Butthe police at least are trained. To suggest that the right to use deadly force extends toprivate citizens who suspect a crime and who then provoke violence is to lurch in the wrongdirection.

Not everyone agrees on what should be done about pervasive problems in policing. Butthere should be broad agreement about the harms of vigilante justice and its frequentracial bias.

If by changing common practice in American courts this Kenosha judge silently invites ajury 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 criminaldefense lawyer in Madison, Wisconsin.