After Kyle Rittenhouse’s verdict, could a libel lawsuit or DOJ investigation be the next step?

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In the aftermath of the Rittenhouse verdict, figures on both sides of the case threaten new cases and investigations.

It seems likely that the case will enter a new contentious phase, in particular civil. However, defenders on both sides can overstate the basis of a Rittenhouse 2.0. These lawsuits can involve considerable risks and costs. This is why Voltaire lamented “I have never been ruined more than twice: once when I lost a lawsuit, and once when I won one”.

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Here’s a look at how things might turn out:

RITTENHOUSE AS A FUTURE DEFENDANT

Federal action by the Ministry of Justice

Immediately after the verdict, House Judiciary Committee Chairman Jerry Nadler asked 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 prosecuting “miscarriages of justice” due to erroneous jury decisions.

Rittenhouse was acquitted of state charges by a state jury. Additionally, while some have called for cutting back on self-defense protections, the jury applied the law as it now appears in the books. It is not permissible to simply ignore the law in order to seek our own rules of criminal justice.

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The Rittenhouse jury faithfully applied Wisconsin law and reached a well-founded acquittal verdict. It is a dangerous precedent to investigate the decisions of a jury just because you disagree with their decisions.

There is also no clear basis for a pursuit of civil rights. Rittenhouse is white and shot three white men. He has not been charged with a hate crime. In addition, he is not a member of law enforcement or a government agency, so he did not deprive anyone of their civil rights under federal law.

Public liability

Rittenhouse could face lawsuits from the families of the deceased or from Gaige Grosskreutz, who survived a gunshot to the arm. This includes wrongful death actions, much like the lawsuit against OJ Simpson after his acquittal for the murder of his ex-wife, Nicole Brown Simpson, and his friend Ronald Goldman. However, he was later found guilty in a tort action brought by the Goldman family and ordered to pay $ 33.5 million. This damage then rose to $ 58 million.

The risk with such tort actions is that they will proceed to a lower standard of proof. Rather than assuming the “beyond a reasonable doubt” standard of the prosecution, complainants would only have to prove their responsibility by a “preponderance of evidence”. However, this is not a guarantee of conviction.

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The three men attacked or threatened Rittenhouse before he used his weapon. The common law protects not only self-defense, but also mistaken self-defense where a person may have wrongly (but reasonably thought) thought that he was attacked.

When attacked, Rittenhouse is authorized under the common law to use proportional force. Although 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 step back before using force.

There is also more latitude in admitting evidence in civil cases on both sides. This could further complicate any recovery by these plaintiffs.

Finally, Wisconsin is a “modified comparative negligence” state. As a result, any claimant (or his estate) is excluded if he is 51 percent or more at fault.

RITTENHOUSE AS A FUTURE APPLICANT

Defamation

Rittenhouse does not have a viable claim for wrongful arrest or prosecution given the deaths in the case and the reasonable disagreement over the need for lethal force.

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However, many commentators have suggested that he has a strong case for defaming President Joe Biden and many media outlets for calling him a “white supremacist”, “domestic terrorist” and “murderer.”

There is no doubt that Rittenhouse has been the subject of false and damaging statements in the media. Indeed, many people who watched the trial were surprised by the marked disconnect between what they had seen about the case in the media and what was presented in court.

Such libel cases are, however, notoriously difficult to win and the odds are against Rittenhouse in prevailing over these characterizations of prejudice or guilt.

It is likely that Rittenhouse will be considered a limited public figure or a public figure given the notoriety of the case and its public defenses.

The Supreme Court ruled that the status of public personality applies when a person “pushes[s] itself in the vortex of [the] public problem [and] to hire[s] public attention in an attempt to influence its outcome.

A limited-use public personality status applies if someone “draws voluntarily[s] attention to itself “or allows itself to be part of a controversy” as a fulcrum for creating public debate. “Wolston v. Reader’s Digest Association, 443 US 157, 168 (1979).

If a court finds such status, it 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 drafted and he is precisely the type of complainant 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 freedom of the press. The Court sought to create a “breathing space” for the media by articulating this standard which now applies to both public officials and public figures.

In addition, the courts are very protective of statements of “opinion”. People are allowed to draw a different conclusion than the jury’s in calling Rittenhouse a murderer or calling his actions racist given the topic of the underlying protests. It doesn’t mean they are right or right. There is no evidence that Rittenhouse is a white supremacist. However, the courts place great emphasis on freedom of expression in such public controversies.

Many cite the lawsuit of Nicholas Sandmann, a former high school student who has been widely and unfairly accused of abusing a Native American during a pro-life event at the Lincoln Memorial.

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Journalists clung to the fact that he was wearing a MAGA hat and called out a racist and falsely accused of starting the confrontation.

He went on and settled with a few media outfits. However, the courts rejected his claims on the grounds that he was characterized as racist. Where he won was on statements that he “blocked” the activist at the scene.

There may be more specific misrepresentations like those in Sandmann’s case, but characterizations of his motives or beliefs will be the most difficult to dispute.

Bond debts

Finally, there is likely to be a dispute over who will receive the $ 2 million bond deposited in the Kyle Rittenhouse. Now that he has been acquitted, the bond usually goes to the defendant. However, his former lawyer, Lin Wood, and his organization Fightback Foundation are asking for the money.

In a letter to Kenosha County Circuit Court Judge Bruce Schroeder, Kenosha’s attorney Xavier Solis wrote that the money should be returned to Fightback:

“These funds were transferred by the Fightback Foundation to the trust account of the law firm Pierce Bainbridge and paid by lawyer John Pierce on behalf and as agent of the Fightback Foundation.

Accordingly, the $ 2 million will be returned to the Fightback Foundation, if and when these funds are released in accordance with Wisconsin law and in accordance with court orders releasing the money from the bond to the person or entity that paid the deposit in cash. “

This poses a new question. The court received the money on behalf of Rittenhouse. The family also claim that her mother collected a good chunk of the bail money. It could amount to a contractual dispute if Rittenhouse expressly agreed that it was a loan to be returned to the foundation. Otherwise, the court could simply return the money to Rittenhouse and ask the lawyers to sue the family to recover the funds owed.

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What is clear is that this Rittenhouse case (like the Simpson and Sandmann cases) will continue for years to come. Indeed, Sandmann is still awaiting trial for some of his defamation allegations.

This is why Thomas Edison once said that “a trial is the suicide of time.”

This column is adapted from an article on the author’s blog: JONATHAN TURLEY / Res ipsa loquitur – The Thing Itself Speaks.

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