Columns, Criminal law, Lawyering, Torts

Rittenhouse 2.0: Threats of New Litigation Fly in the Aftermath of Rittenhouse Verdict

In the aftermath of the Rittenhouse verdict, figures on both sides of the case threatened 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.”

RITTENHOUSE AS A FUTURE DEFENDANT

Federal Action

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 on the books. It is not allowed to simply ignore the law to seek its 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.

Civil Liability

Rittenhouse could face lawsuits from the families of the deceased or 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

Defamation

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 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 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.

Bond claims

Finally, there is likely to be litigation over who receives the $2 million bond posted in the Kyle Rittenhouse case. 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 raised 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 the family for recovery of owed funds.

What is clear is that the 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.”

162 thoughts on “Rittenhouse 2.0: Threats of New Litigation Fly in the Aftermath of Rittenhouse Verdict”

  1. Democrats have always been the true racists in America. Always. Promoting racism has been and continues to be one of their favorite Marxist tools to divide and destroy America. The racist Democrats, of course, hate that Lyndon Johnson’s true racist feelings about blacks were revealed by his infamous quotation in connection with the passage of the Civil Rights Act that “I’ll have those ——s voting Democrat for the next 200 years.”. But facts are facts. Robert M. MacMillan, an Air Force One steward, and an eyewitness and earwitness, told what happened. Yes, Mr. MacMillan did hear Johnson did say to two governors that “I’ll have those ——s voting Democrat for the next 200 years.” Oh, and by the way, Robert MacMillan was a black man. According to Mr. MacMillan, “That was the reason he was pushing the bill. . . not because he wanted equality for everyone. It was strictly a political ploy for the Democratic Party. He was phony from the word go.” Interview with Robert M. MacMillan, March 23, 1993, cited in Ronald Kessler, Inside the White House (New York: Simon and Schuster, 1996), p. 33, ISBN 0671879197. Nobody has ever attempted to discredit what Mr. MacMillan said because it was true.

    1. Feldman…………..as a Texan for all but 8 of my 75 yrs, I have to say you speak the truth. I have always loathed and been ashamed of Lyndon…..but I loved Lady Bird.

  2. Racist Biden flashing his White Power Sign Proudly: https://img.rt.com/files/news/2e/2e/c0/00/biden-gaffe-packwood-women.jpg
    Racist Democrats Honoring KKK White Supremacist Robert Byrd and Praying to their One-World-Government Authority to Create More Poisonous Racism to Help Destroy America: https://bloximages.newyork1.vip.townnews.com/herald-dispatch.com/content/tncms/assets/v3/editorial/c/93/c93ccfb0-2245-59c8-9160-ef3ae3546679/5620643f6c23a.image.jpg?resize=971%2C630

  3. What is truly shocking is that people (some of whom ought to know better) are questioning a NOT guilty verdict, and calling it a “travesty” and a “miscarriage.” This is not a situation in which an innocent person was unjustly convicted, this was a situation, regardless of the actual facts, in which a prosecution failed to prove its case in court. This is what happens when there is such a failure. Do these people want prosecutions to succeed when they bring literally no evidence in support of their charges? They have not thought this through. They are asking to reverse our system of law, and presume the guilt of defendants, and then to condemn them not for their own failure to prove innocence, but on the say-so of the mob. They want lynchings with a veneer of legal process.

    1. Like the aquittal of the men who murdered Emitt Till, legitimate jury nullification of the law.

      1. There was no jury nullification here and to compare the Till murder to the Rittenhouse case is an insult across the board. WTH is wrong with you? You actually think Kyle killed blacks, don’t you?

  4. Regarding the reaction to to the verdict, the supposed “protesters” are part of the organized terrorists called to intimidate and destroy property. Incapable of making choices for themselves, they are told what to think and do.

    It does not take a rocket scientist to see through the bull excrement. Like the members of the 1960s Manson family or the Nazi Brown Shirts (Sturmabteilung), the “protesters” are a small component of a larger, darker plan to tear down this nation.

    Regardless of the verdict in this case, life will be pure hell for many years to come for this young man, his family and many others involved.

      2. Anonymous, who is or may just as well be Anonymous the Stupid, has been wrong every time he has posted such links. Typical lies and smears from the left.

        Rittenhouse shot in self defense those that were trying to kill him. The left can’t handle the 12 to 0 verdict so they start on a campaign to destroy his reputation. That is what they always do. Anonymous the Stupid, also the green icon, has made claims of this nature on a continuous basis and almost always has been wrong.

        That is the nature of Stupid people.

  5. Only in modern day America can a white kid shot three other white guys who were attacking him… and the media, Hollywood, big Tech, the sports world, Immensity International, The ACLU, the NAACP, politicians and THE PRESIDENT call you a white supremacist racist, lol.

  6. ​Professor Turley neglected to mention Biden’s reaction to the Rittenhouse verdicts: Biden: “I stand by what the jury has concluded. The jury system works, and we have to abide by it.” 2 years ago, Trump said it was “a total miscarriage of justice” when a jury in federal court convicted & sentenced his friend Roger Stone of 8 felonies.

    Trump publicly attacked the Supreme Court after they dismissed the Texas lawsuit which attempted to invalidate millions of votes in Georgia, Pennsylvania, Michigan, & Wisconsin. Trump: “The U.S. Supreme Court has been totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election…The people of the United States were cheated, and our Country disgraced.”

    The OJ Simpson civil suit ended with $33.5 million awarded to the families of the murder victims. Nicholas Sandmann was seeking $250 million from the Washington Post & $275 million from CNN. The Post & CNN first reported about the Lincoln Memorial incident involving Sandmann on January 18, 2019. On January 22, 2019, the Post presented a more accurate account of the incident with their article “Viral standoff between a tribal elder and a high schooler is more complicated than it first seemed.” CNN followed suit. Sandmann contends that in the 4 days it took the Post & CNN to set the record straight, his reputation was irreparably ruined.

    Dominion filed a $1.6 billion defamation lawsuit against Fox News for spreading false claims that the company had altered vote counts and manipulated its machines to benefit Biden in the election. Smartmatic also filed a $2.7 billion defamation lawsuit against Fox News. Fox News hosts continued to report false claims about Dominion & Smartmatic voting machines for 3 months. The day after Smartmatic filed their defamation lawsuit, Fox News cancelled Lou Dobbs program, their highest rated program on Fox News Business.

    As JT says, Sandmann is still awaiting trial on some of his defamation claims. So are Dominion & Smartmatic.

    1. What did Biden say afterward?

      “Shortly afterward, the White House issued a written statement by Biden.

      “While the verdict in Kenosha will leave many Americans feeling angry and concerned, myself included, we must acknowledge that the jury has spoken,” Biden said.

      In other words, Biden felt a gun pointed at Rittenhouse’s head wasn’t good enough for Rittenhouse to shoot in self-defense. Rittenhouse shot only after the individual aimed his gun at him. The videos are explicit, but some people have placed their ideologies in front of their eyes.

    2. You’re a despicable American-hating leftest. You purposely omitted Biden’s further statements on the verdict. You are liberal pondscum.

      1. I’m an independent. Duly noted that you purposefully omitted Trump’s statements on Roger Stone’s multiple guiitly verdicts & his unprecedented attacks on the Supreme Court & instead resorted to entirely predictable insults & name-calling. Love & peace, my dear fellow poster.

        1. Patriot American says:

          “[you] resorted to entirely predictable insults & name-calling.”

          You sound as if you expected an intelligent response! You have been privy to Trumpists here long enough to know better!

          When we are openly dehumanized as “pond scum,” is there any inhibition to liquidate the pool? I’m not claiming that dehumanization is sufficient for mass killing, but it is necessary.

          And, sadly, Darren does not seem to think that such extirpative name-calling is uncivil….

        2. You are arguing against your self.

          Either both are wrong, or both are right.

          Let’s not forget ALL of the leftist are still, yet today, declaring Citizens United was a bad law by SCOTUS. Even though the First Amendment, opens with CONGRESS SHALL MAKE NO LAW…. Which is exactly what Citizens United did. Made a law restricting political speech.

          Citizens United is the template President followed. Right?

          It is infantile and ignorant to play a stupid game of who did it first. There are no winners in such a stupid game.

  7. Don’t the feds go after people all the time after states don’t come through? I don’t think he’s out a the woods criminally yet. Why wouldn’t the feds charge him now on conspiracy for the ar15 purchase? Esp given his testimony. It wouldn’t be double jeopardy after the Gunn vs…… from alabama by scotus couple years ago.

    1. Keep dreaming. the Feds aren’t going after him because there is nothing to go after him for. Three lowlife criminals (one a child molester) chased and attacked him and only after he was taken to the ground by the mob did he DEFEND HIMSELF, having no other choice.

    2. Oh, my! You are so right. The federal government and the communists (liberals, progressives, socialists, democrats, RINOs) in Congress have egregiously violated the Constitution since 1860. Figure it out. Secession is not prohibited by the Constitution making war illegal, and Chief Justice Taney told “Crazy Abe” Lincoln that he had no authority to suspend habeas corpus. The fool did both anyway! And much more. Dang! You’ve got a head on your shoulders. See if you can read the 5th Amendment with respect to “double jeopardy.” Go slowly now. It says no person…twice put…. You understand twice, right? Am I right? I’m right aren’t I? NO. TWICE.
      ________

      RITTENHOUSE AS A FUTURE DEFENDANT

      Federal Action

      Immediately following the verdict, House Judiciary Committee Chairman Jerry Nadler called for the Justice Department to investigate the “miscarriage of justice.”

      – Professor Turley
      ______________

      “…TWICE…”

      “…FOR THE SAME OFFENCE…”

      “NO PERSON SHALL BE…SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB;…”

      The only words in fundamental law that bear on secondary, federal prosecution are “…for the same offence to be twice put in jeopardy…,” jurisdiction and purview notwithstanding.

      Additional prosecution would constitute a violation and denial of Rittenhouse’s absolute and immutable constitutional rights.

      Rittenhouse has been ONCE PUT in jeopardy and shall not be TWICE PUT in jeopardy.
      _____________________________________________________________________

      5th Amendment

      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    3. Will the Feds go after the peaceful ” dmonstrators” who were setting buildings on fire, looting and assaulting people. Not a good narrative.

    4. Feds investigated the entire thing for a year. Keep dreamin’, and operating without foundation.

  8. I am not a Gastroenterologist but it is my understanding Joe Biden’s colonoscopy was successful. The physician doing the procedure was able to remove a set of lips that belonged to the MSM

  10. The videos and testimony from the trial would seem to support assault and possibly even attempted murder charges against Gaige Grosskreutz and Maurice Freeland. When will those charges be brought? If not, why not?

    And what about hate crime charges? Violence perpetrated against another human being for his political views in the middle of a politically motived, violent insurrection would seem to be the very definition of a hate crime. Certainly that should be investigated too. If the attacks on Mr. Rittenhouse weren’t a hate crime, what is? And if they weren’t, what is the purpose of the hate crime laws other than a tool for the selective persecution of the regime’s political enemies?

    1. It would depend on Wisconsin’s hate crime law (if any), but in most states a hate crime is defined as a crime committed because of the victim’s (real or perceived) race, religion, sex, and a few other criteria, but political opinion is not usually one of them. So in most states their assaults on Rittenhouse would not be hate crimes; just ordinary and very serious crimes.

      But their defense would be that they honestly, though mistakenly, believed he was a mass shooter and they had to stop him with the means they had available, whether it was boots, a skateboard, or an illegal handgun.

  11. Why are the insane people on MSNBC and CNN allowed to have such a powerful platform to spread their insanity?

    2. Because we have a first amendment. Thank God for it, even though it does let them do that; there’s no way to craft a law that would prevent them, but leave us free to speak our minds.

  12. Leftists are against the idea of white people having rifles just like the Redcoats were against the idea of colonists and Minutemen having rifles. It’s easier to tyrannize, oppress, confiscate, loot, steal, etc. when people don’t have rifles. That’s what they want to do. The rifles are an obstacle to what they would really like to do.

  13. If a white homeowner were to shoot and kill a black burglar, whose side would the black community be on? I think you know. Would they give a damn if the burglar killed the homeowner. Of course not. And they want to talk about fairness and justice?

    1. There is no “the black community,” although there are many organizations claiming to speak for us.

  14. I watched the Squid Game, and I didn’t see one damn squid. Very disappointed I am.

  15. All of this Tom foolery by politicians such as Jerry Nadler, Joe Biden and other propagandist is designed to keep the black vote in tow. They realize that losing even a small percentage of the black vote will cost them their power. They see a part of the black vote slipping away and they are terrified. Regardless of what is right or wrong they must display themselves as the friend of the black man even as the black man rots in the cities controlled by Democrats due to the policies that they have implemented. Therefore, they find it necessary to find a racist behind every bush to display their loyalty. They didn’t give a damn about the black man in 1930 and they don’t really give a damn about the black man now except as a reliable voting block. Don’t forget. They want to own your children.

    1. You’re beginning to understand and grasp the very fundamental forms of election manipulation and corruption, and vote fraud which began in 1863 and continued 100 years later by the likes of Lyndon Baines Johnson and continues to this day. Per immigration law in 1863, a large, current voting block must have been deported in 1863. For that matter, turnout was restricted by the Founders to 11.6% in 1788. Biden is importing millions of new “American” voters as we speak.
      ___________________________________________________

      “I’ll have those ——s voting Democrat for the next 200 years.”

      – Lyndon B. Johnson

      1. George, do you know the source of that Lyndon Johnson quote? I saw it recently in a documentary but it didn’t give the source either. Thanks.

        1. Did God send the Ten Commandments down with Moses?

          Johnson’s may be a paraphrased quote, but it is a quote nonetheless, and it has been accepted as fact since Johnson’s presidency.

          It was obviously too inflammatory for all concerned, to put on the books.

          It is also accepted publicly that Johnson was as low and indecent as any man has ever been, including Caligula.

          In the same fashion, The Prentis Cycle, which asserted that “…popular self-government ultimately generates disintegrating forces from within…” or “…democracy cannot exist as a permanent form of government…always collapses over loose fiscal policy, always followed by a dictatorship…” was attributed to Alexis de Tocqueville and Alexander Fraser Tytler, but actually written by Henning Webb Prentis Jr. Even though those sources were dubious, the quote was rightly accepted.

          Ultimately, it’s the effect that we observe and deem true or false. Look around you. How does the referenced “block” vote? Would you believe, democrat?

        1. Yeah. “Crazy Abe” Lincoln “…fundamentally transformed the United States of America…,” prosecuted a murderous unconstitutional war, and amended immigration and election laws with a gun to America’s head, under the duress of brutal post-war military occupation. “Crazy Abe” was kinder and gentler than Stalin, Hitler or Mao, he only killed a million Americans during his tyrannical, despotic and dictatorial “Reign of Terror.”

          “Crazy Abe” and his successors ignored and nullified the Constitution, actions without which LBJ’s voting “block” would have been summarily deported and immigration law would still, to this day, require citizens to be “…free white person(s)….”

  16. RITTENHOUSE AS A FUTURE DEFENDANT

    Federal Action

    Immediately following the verdict, House Judiciary Committee Chairman Jerry Nadler called for the Justice Department to investigate the “miscarriage of justice.”

    – Professor Turley
    ______________

    “…TWICE…”

    “…FOR THE SAME OFFENCE…”

    “NO PERSON SHALL BE…SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB;…”

    The only words in fundamental law that bear on secondary, federal prosecution are “…for the same offence to be twice put in jeopardy…,” jurisdiction and purview notwithstanding.

    Additional prosecution would constitute a violation and denial of Rittenhouse’s absolute and immutable constitutional rights.

    Rittenhouse has been ONCE PUT in jeopardy and shall not be TWICE PUT in jeopardy.
    _____________________________________________________________________

    5th Amendment

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  17. This is the left:

    Rep. Cori Bush (D-Race Baiter) tweeted: “The judge. The jury. The defendant. It’s white supremacy in action. This system isn’t built to hold white supremacists accountable. It’s why Black and brown folks are brutalized and put in cages while white supremacist murderers walk free. I’m hurt. I’m angry. I’m heartbroken.”

    Do any of you on the left not see the craziness of such statements? Or are all those on the left the same?

    1. This is what happens when people think their notion of “justice” matters more than that enshrined in law. It would be very interesting to know what Rep. Bush would change about Wisconsin law.

      1. It’s easy to know what Bush would change about the law. Make it lawful for those espousing leftist, anti-American, One-World-Government Communazi views to commit arson, violence, and murder as long as the victims are patriots/conservatives and to make it crime for patriots/conservatives to defend themselves against arson, violence, and murder. And, as part of that, only criminals should be allowed to have weapons to defend themselves, and all judges that want to follow the Constitution must be replaced with leftist, anti-American, One-World-Government Communazi judges.

  18. Exactly who had what power to wantonly traumatize the suffering girl behind Rittenhouse?

  20. If you don’t get rewarded for not using fallacies of logic,
    and if you don’t get punished for using them, then
    what’s the point in educating people about them?
    It seems that the people who deliberately use fallacies of logic
    are sometimes the winners.

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