I’ve made a number of comments on stories about the Kenosha shootings since they had me thinking about the changes that have occurred over the last year at protests around the country in terms of the police and armed citizens. Things seem to have entered a dangerous phase, with both militia members and protesters frequently seen with firearms at the protests.
My wish is this: BLM protesters should calmly, and with an open mind, try to understand and appreciate the positions of the right-wing militia people who are starting to show up at these events. I’m not worried about “giving them credibility” or “bothsiderism” or things like that, because the purpose of this diary is not to prove that the militia people are wrong, or racist, or evil. Rather, I believe that understanding the thought processes of these people is the key to not being killed at a protest.
Taking the Law Into Your Own Hands. From the militia perspective, the protesters did this first by committing arson and destroying property. In some cases, protesters have described these actions as justified attempts to seek justice when lawful methods have failed:
"We tried kneeling," protester Jesus Guzman, 19, told NPR's Doualy Xaykaothao near the Santa Monica Pier. "We tried putting on those T-shirts that said 'I can't breathe.' We tried those hashtags. We tried doing it all peacefully, but they haven't heard us — they haven't done nothing."
"The violence, for him, is justified," Xaykaothao reported.
I’ve seen comments along the lines of, “what gives these vigilantes the right to take the law into their own hands?” From the militia perspective, the protesters gave them that right by doing it first. They feel completely justified from a moral perspective of taking it upon themselves to enforce the law and protect property in situations where the police have withdrawn or are outnumbered. When they’re interviewed by the media or bloggers, they do not act as if they have “been caught” but rather are proud of the roles that they have appropriated for themselves.
The risk of untrained people doing this may be magnified in the future if protests occur in jurisdictions with far-right law sheriffs, most of whom do in fact still maintain the Wild West-era ability to deputize ordinary citizens as law enforcement. Doing this would create an extraordinarily dangerous situations, with the new “deputies” feeling both morally justified and empowered with actual law enforcement authority.
Gun Laws. There have been many comments along the lines of why the police didn’t stop the shooter from “walking down the street carrying a deadly weapon.” The Kenosha shooter was breaking the law by possessing a rifle as a minor. If he was one year older, however, he would have been free to carry an assault rifle and hundreds of rounds of ammunition down the street and into a protest. This is because Wisconsin, like many areas, is an “open carry” state where this is permitted.
It’s important to understand the mindset of the militia on gun laws, because with respect to situations like this it is the polar opposite of many on the left. Those on the left look at these shootings and say: (1) this is why assault weapons should be banned; (2) this is why high capacity magazines should be banned; and (3) this is why regular people should not be allowed to carry firearms in public. The militia types look at the exact same facts and say: (1) this is why assault weapons should be allowed, we may be called upon to defend ourselves at a protest with hundreds of people, and require the capability to kill multiple attackers without exposing ourselves while reloading; (2) this is also why high capacity magazines should be available; and (3) the protests, and the need to protect our community, are a perfect example of why citizens should have the right to go armed in public.
The fact that in much of the country untrained people can legally walk down public streets openly carrying military weapons is tragic, but at least for now that is the situation.
The Protesters Misread The New Ramifications of Violence, and the Law of Self-Defense. At most protests, the police operate under rules of engagement from their leadership. The protesters have learned that a certain level of violence, such as shoving police officers, throwing objects at them and tearing down barricades, will not result in the police firing their guns at them, even though the police do carry guns. Rather, the police will respond with “less than lethal” measures such as teargas, bean bag guns and the like. Sometimes these measures cause significant injury, but most often their “less than lethal” label is true and they do not cause death.
Protesters may mistake encounters with militia types as having the same ground rules. They may believe that four or five of them can gang up on a gun-toting militia type using only shoving or fists, and that doing so will not risk the militia type responding with gunfire. This assumption is incorrect, because it conflates the situations in which a law enforcement officer is permitted to use deadly force in the performance of his duties, with the situations in which a regular citizen can use deadly force in self-defense.
I’ve seen comments on self-defense that demonstrate a lack of understanding about how these laws work. The core part of the Wisconsin self-defense law is similar to most states, and says:
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
I’ve seen the following misconceptions about this law:
(a) “He can’t bring an assault rifle to a protest and then expect to claim self-defense.” Yes, he can. There is an exception to self-defense that arises when a person engages in unlawful activity that provokes another. As stated above, however, walking down the street in Wisconsin, even to a protest, is a lawful activity. It is true that the Kenosha shooter was engaged in an unlawful activity by reason of his age, but his age was not a provocation. Assuming he was 18 or over, simply bringing an assault rifle to a protest would not negate a self-defense argument.
(b) “The fact he brought a rifle to a protest means he intended to kill.” No, it doesn’t. See (a) above — in court, engaging in a lawful activity is not evidence of an intent to kill.
(c) “He wasn’t entitled to shoot someone who was only threatening him with fists, a skateboard, etc. — his life was not in danger.” The bolded language above describes the standard for using self-defense, being a “reasonable belief” that deadly force is needed to prevent death or great bodily harm. Proving that his life was actually in danger is not required, it is the belief that counts. A good defense lawyer will paint a protest as utter chaos, with the person claiming self-defense engaged in a good faith if perhaps misguided effort to protect his town. He will describe the protesters as the first to use violence (see section above about protesters misreading the new ramifications of violence), given the person claiming self-defense a reasonable belief his life was in danger. The decision itself is made by a jury, not a mayor, police captain, city council or civil rights investigator from the DOJ. A unanimous verdict is required to convict, and in many of these areas it would not be surprising to find at least a few jurors sharing the militia mindset. This is the reason I believe it is likely the Kenosha shooter will be acquitted.
The most famous recent example of this approach succeeding was the Trayvon Martin case. Martin was a single individual, with no weapon. Zimmerman was still found not guilty based on his assertion that he feared for his life, even though Zimmerman had created the situation for himself by taking (at no one’s request) the position that he would protect his neighborhood rather than relying on the police, and then initiating the encounter by following Martin. Most do not agree with this decision, but it is easy to see how it could be replicated over and over by a jury considering a chaotic situation at a protest with multiple “attackers.”
Engaging With Militia is Largely Apolitical. Protests are by their nature political. They are efforts to effectuate change, remedy injustice, and convince lawmakers to change policy. While it is certainly true that most of the militia types are politically far-right, when you hear them interviewed at protests it is clear they don’t view their physical presence as politically motivated. They instead perceive themselves in quasi-military fashion as “guardians,” who are there to fulfill their “mission.” The Kenosha shooter, just 17 years old and with no training, expressed this position in his own words:
“Part of my job also is to protect people,” Rittenhouse told the Daily Caller moments before he allegedly began shooting. “If someone is hurt, I’m running into harm’s way. That’s why I have my rifle. I’ve got to protect myself, obviously.”
Protesters make another mistake by engaging with militia types on political terms, believing that their interactions serve the same political purposes and have the same political effect as interactions with actual law enforcement or government representatives. In fact, they are dealing with people holding the deranged belief protesters who act against them are “threatening the mission.” This disparity in worldviews is a recipe for tragedy.
So Why This Diary? I wrote this diary because I think there are new rules to be followed with respect to the increasing presence of militias at the protests. I would very much like to live in a place where people are not legally permitted to carry assault weapons into the midst of an angry crowd, but that is not the current situation.
I think the rules for interacting with militia members at protesters are simple: Do not engage them, at all. Do not communicate with them, do not try to prove your point with them, do not try to show them how angry you are, do not try to prove you’re not afraid of them, and do not give them any reason to believe they are under threat. They are not law enforcement, the government, or people who would ever support our causes. What they are is dangerous, and treating them like an otherwise normal feature of a protest may be a fatal mistake.