Vigilante Justice an American Tradition

Trump interview by ABC News’ Jonathan Karl conducted at Mar-a-Lago 

referencing the violent January 6th vigilante attack on the Capitol: 

                                                “Well, the people were very angry,” Trump said.

“They said, ‘hang Mike Pence,’” Karl told Trump.

“It’s common sense, Jon. It’s common sense that you’re supposed to protect,”  

 Trump said. “How can you, if you know a vote is fraudulent, right, how can 

 you pass on a fraudulent vote to Congress?”

 

As Texas seeks to circumvent those aspects of the Bill of Rights, amplified by the post-Civil War equal protection amendment (the 14th), that prevent government agencies from denying or abridging fundamental Constitutional rights, it has resorted to vigilantes to do its dirty work. Assuming that Roe vs Wade remains valid (very much in question with the precedent voiding ultra conservative Supreme Court), somehow the Texas legislature and the governor believe that their passage of a vigilante-enabling statute – pretty clearly a governmental action – allows any state to use private citizens to abridge those constitutional rights… and get away with it. Bounty hunters empowered by lucrative civil litigation. Well, Texas has at least convinced a yearning conservative majority of that Court not to stay (pending a trial someday) the recent Texas abortion of an abortion statute (banning abortions after six weeks from conception) based on that amazing premise. See also, my November 4th Circumventing the Constitution – Unintended Consequences blog.

Vigilantism has been a part of American history since inception. How many Westerns have we seen with a “string him up” premise? The Reconstruction Era and Jim Crow South took vigilantism to an entirely new and more devastating level. Black Americans paid a steep price for rights and liberties that had been granted to them but somehow never truly materialized. Cross burnings. Hangings. Beatings. Shootings. But those were extra-legal vigilantes. Texas may have crossed a bright line (I hope) with the above anti-abortion statute, but the law in most states has actually legalized private citizens to act on behalf of the government, one way or another.

Even before this nation was formed, the common law of England allowed some citizens to sue on behalf of the government: “a writ of qui tam is a writ through which private individuals who assist a prosecution can receive for themselves all or part of the damages or financial penalties recovered by the government as a result of the prosecution. Its name is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning ‘[he] who sues in this matter for the king as well as for himself.’” Wikipedia. Some US statutes, state and federal, also enable qui tam litigation on specific matters, often to enforce whistleblower lawsuits. But all of these are civil actions. Armed Americans often can do much more in purported criminal matters… unless legally barred from such actions. 

Debra Cassens Weiss, writing for the November 9th Journal of the American Bar Association (ABA), digs into where citizens are literally encouraged to take the law into their own hands: “Laws that permit citizens arrests or entitle citizens to stand their ground have been blamed for vigilante shootings and tragic consequences. Yet many states still have them on the books… An opponent of citizens arrest laws is Ira Robbins, a professor at the American University Washington College of Law… ‘We are in a period of vigilante justice,’ he told the Washington Post. ‘And frankly, when you have vigilante justice, what it ends up being is vigilante injustice.’” Including murder?

Such is the case of the Georgia shooting death of Black jogger Ahmaud Arbery, whom self-appointed private citizen enforcers – Gregory McMichael, 65, his 35-year-old son, Travis McMichael, and their neighbor, William Bryan, 52 – thought was involved in the burglary of a home under construction. He was unarmed. He had not burglarized any home.  “The slaying of Mr. Arbery was also captured on a videotape that was widely viewed by the public. And the trial of his accused killers will also bring up issues of policing — although in this case, it will involve questions about private citizens and their rights to detain people who they believe to be breaking the law.

“Those rights in Georgia were spelled out in a controversial Civil War-era statute that was significantly weakened by state lawmakers in direct response to the outrage over the Arbery killing. Lawmakers also passed Georgia’s first hate crimes law as a result of the shooting.” New York Times, November 9th. With only one Black juror on the panel, the case was just as much about racial prejudice as the viability of non-police private enforcers. Some states seem to allow self-declared enforcers even to bait individuals they consider “suspicious.” Hardly the “probable cause” standard imposed on police. They call them “stand your ground” laws. A weak defense, literally laced with de facto confessions, led defense lawyers to ask for a plea bargain. Rejected.

But Arbery was not the only vigilante trial in the headlines. Here’s how The Guardian UK framed that other case: “On August 25, then 17-year-old Kyle Rittenhouse traveled from his home in Antioch, Illinois to Kenosha, Wisconsin to volunteer as a member of an armed militia in the midst of growing protests against the police shooting of Jacob Blake, a 29-year-old black man, in front of his children two days earlier. Later that night, Rittenhouse fired his AR15-style rifle numerous times during confrontations with protesters, killing two men and seriously injuring a third.

“Based on video evidence and eyewitness descriptions, the shooter was charged with five felony counts, including first-degree intentional homicide in the death of Anthony Huber, 26; first-degree reckless homicide in the death of Joseph Rosenbaum, 36; and attempted first-degree intentional homicide against Gaige Grosskreutz, 26, who was struck by a bullet in the bicep and survived.

“Rittenhouse turned himself in the following morning after driving back to Antioch the night before and was held for two months in the local jail until his extradition to Kenosha on October 30. From the start, Rittenhouse was hailed by the far right as a hero and backed by President Donald Trump. Several organizations launched a national fundraising campaign for his legal defense and raised the $2 million required for Rittenhouse to post bail at his arraignment on January 5 where he pled not guilty to all charges.” 

The GiveSendGo crowdfunding website raised a further total of $585,940, according to The Guardian, with donations from right wing groups and even some police officers. Rittenhouse had one of the best legal teams in Wisconsin and a judge who repeatedly excoriated the prosecution… in front of the jury… and excluded evidence that would have corroborated the prosecutor’s claim that Rittenhouse was hardly a sweet teenager on a mission of mercy as he was portrayed by the defense. 

“‘What’s dangerous is he’s going to become a mascot or a martyr,’ [former gun industry executive Ryan] Busse said. ‘Every time there’s a Rittenhouse, it moves the window of what’s acceptable. I think Rittenhouse has moved the window.’…  Among much of society, whether Rittenhouse is guilty or not guilty won’t change anyone’s minds about guns, he said.” Associated Press, November 15th. The televised trial was short. Rittenhouse, now a darling of the right-wing, was acquitted on all charges on November 19th. For many Black Americans, Kyle Rittenhouse's acquittal confirmed their belief in two justice systems: one for white people and another for Black people. For vigilantes, hunting season was open! 

Meanwhile, after the Arbery killing, Georgia tweaked its citizen’s arrest law, but it was not repealed. In gun-crazy America, existing “take the law into your own hands” bills are not being removed. “Other efforts to reform citizens arrest laws failed following charges in the Arbery case, according to the Washington Post. One example is in South Carolina, where a reform citizens arrest measure didn’t make it out of committee… The South Carolina law still in place allows citizens to arrest a felon or a thief and take the arrestee to a judge if the arresting citizens see the theft or felony or if they have information that a felony has been committed.

“Citizens arrests are also allowed in some circumstances ‘in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken.’… The circumstances include situations in which a person commits a felony, possesses stolen property, enters a home without permission or breaks ‘into an outhouse with a view to plunder.’

“No state, including Georgia, has repealed a stand-your-ground law since Arbery’s death, according to the Washington Post. The law in Georgia provides that a person who is not the aggressor doesn’t have to retreat before using potentially deadly force if they reasonably think that it is needed to prevent death, serious injury or a forcible felony.

“Ohio and Arkansas, meanwhile, approved expanded stand-your-ground laws earlier this year. In Ohio, for example, people can use lethal force in self-defense, without any duty to retreat, in any place where they have a lawful right to be, rather than just at home or in their car, according to prior coverage by the Associated Press.” Cassens. 

Citizen violence seems acceptable and even lawful once again. Massive support from GOP stalwarts has consistently sided with the January 6th insurrectionists, the vigilante actions noted above, and even House Republican Rep. Paul Gosar’s posting of his photoshopped anime video on his Twitter and Instagram accounts showing him killing Democratic Rep Alexandria Ocasio-Cortez and attacking President Joe Biden. House censure of Gosar on November 17th was almost exclusively along party lines. Meaningful GOP condemnation? Not a shot. Trump endorsed Gosar’s reelection immediately after the censure vote. Funny how they always use the word “patriot” when supporting and condoning such violent and usually unlawful acts.

Makes a heart go warm and fuzzy knowing that there are over-armed citizens out there with the power to arrest you… and if you resist, to kill you. Think about those elements (dubbed “militia”) that were asked by former President Donald Trump to “stand back and stand by.” Those Proud Boys, part of the Trump army of vigilantes who want to reinstate Trump without an election. Who needs cops with militia like that enforcing their vision of what the law should be?

I’m Peter Dekom, and even as rising generations are clearly more liberal and tolerant and the bulk of the nation is a bit left of center, according to the latest polls, our entire legal system has been coopted by the right, to empower their values at the expense of what most of us want.