Gage Grosskreutz holds a pistol immediately after being shot by Kyle Rittenhouse in Kenosha, Wisc. in this screen shot from @MrAndyNgo's Twitter feed 8/27/20
One of the most disturbing things about the Kyle Rittenhouse saga is the evidence it provides that both sides are escalating the battle in the streets. Often lost among the discussion of Rittenhouse’s actions is the simple fact that at least two people among the rioters were armed. If right-wing vigilantes and militia members are going to open fire on demonstrators then it is very likely that the demonstrators are going to start shooting back. Without some sort of de-escalation, we may be very close to literal war on the streets of some cities.
To be strictly correct, the rioters may already be shooting. As I noted a few days ago in my article about the Kenosha shootings, the video shows muzzle flashes before Rittenhouse opened fire. It isn’t clear who fired these shots, which apparently were not aimed and may have been directed into the air, but it is likely that they came from someone in the crowd of protesters. The bottom line is that there were multiple gunshots in addition to the shots fired by Rittenhouse.
It isn’t difficult to see where things are headed. Guns have been present and now pandora’s box has been opened with an incident that left two protesters dead and a third wounded. Rightly or wrongly, the demonstrators will believe that the right-wing counter-demonstrators are out for blood and respond accordingly.
Guns will become more common among the violent demonstrators. Long before the Kenosha shootings, I had already seen many social media posts that allege that Antifa members have been training with guns. Whether that was real in the past or not, it is likely to become a self-fulfilling prophecy for the future.
In opposition to the rioters, we have right-wing vigilantes and militia groups, who themselves are often breaking the law. Although laws vary by state and locality, Wisconsin’s self-defense law allows the third-person defense of property only in certain circumstances. Among those is the requirement that the “3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant’s employee or agent.” It is not legal for militia members or concerned citizens to unilaterally decide to defend property without any legal authority to do so.
Wisconsin also stipulates that “person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense.” An exception to this rule is when the person “reasonably believe[s] that he or she is in imminent danger of death or great bodily harm,” but even then the person must not use deadly force until he “reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.”
These self-appointed protectors of neighborhoods in which they may not even live have also disobeyed orders from the police to disperse. The Milwaukee Journal-Sentinel references a post by Kevin Mathewson, “commander” of the Kenosha Guard, which seems to exist primarily on Facebook. Mathewson admits that officers have told his men “go home under threat of arrest… in the past.” When asked about deputizing civilians to assist police, Kenosha County Sheriff David Beth told the Wisconsin Examiner it would represent an “immense” liability to have untrained and deputized civilians working alongside officers.
Yet Mathewson and others reject the law enforcement requests that they stand down, saying, “But by definition, we don’t need the government’s permission. We don’t need to be told — we can do it. In fact, the Constitution tells us we can do it. And the Second Amendment was put in there for instances like this — when we’re at war and under siege.”
As we have seen, state law indicates that Mathewson is wrong. Resisting lawful orders to disperse and illegally acting to defend property that doesn’t belong to them is just as much a violation of the law as what the the violent mob is doing. Rationalizing the situation does not change the law.
Finally, it is a failure of government that has allowed the situation to escalate in the first place. Too many governors and mayors have looked away from the violence and destruction of property. One of the most important functions of government is to protect its citizens. In too many cities, that has not been happening, which leaves a vacuum for militia groups to fill.
Too often, local police are overwhelmed by brawlers on both sides and just step back, as they did in Portland last week as Proud Boys and other right-wingers battled leftist demonstrators. Many on both sides are looking for trouble and increasingly they are finding it.
To me, the best solution seems to be the riot-control trucks from “Soylent Green.” Scoop up the demonstrators indiscriminately and cart them off to the hoosegow. The rowdies on both sides need to be removed from the streets.
Failing that, if local police departments cannot control the situation, mayors and governors need to call out the National Guard to pacify their cities. If mass arrests need to be made and water cannons need to be used to bring things under control then so be it. Americans should not be brawling in the streets like brownshirts and communists in Weimar Germany.
But the riot-control must come from state and local governments. For citizens to take up arms to police the streets both undermines the rule of law that they claim to be upholding as well as inviting escalation and retaliation. For the federal government to step in undermines the Constitution and federalism.
What we really need is for our elected officials to rise above the partisan calculations about the election and work together for the good of the country. Our leaders should be calling for peace and calmness rather than stirring up emotions and justifying criminal behavior. Both sides need to tamp down the rhetoric and denounce the violence on the part of their own supporters, not just that of the opposition.