Proving that there is no shortage of creative lawyering to be found in this country, several of those facing serious criminal charges for their participation in the Jan. 6 insurrection and attack on the U.S. Capitol have signaled they intend to play the “Kyle Rittenhouse” card, asserting that their violent assaults against law enforcement officers were simply innocent efforts to protect themselves and others from police use of excessive force against them. One has even claimed he was motivated by his outrage at officers’ callous treatment of female rioters, and that his subsequent acts of violence against police were instinctively triggered by these noble and chivalrous sentiments.
As reported by Alan Feuer for the New York Times, this remarkable legal strategy has begun to rear its head in court filings preceding several of the terrorists’ criminal trials, scheduled to begin early next year.
The first person to have said he would pursue a self-defense case was Edward Jacob Lang, a self-described social media influencer from New York. He has been charged with seven counts of assaulting officers, some with a riot shield and others with a baseball bat.
In court papers filed by his lawyer, Stephen Metcalf, Mr. Lang said he became violent only after seeing several women in the mob being attacked by the police, including Rosanne Boyland, a Trump supporter who ultimately died...[.]
As Feuer reports, Lang gave an interview from jail earlier this year in which he bemoaned the “heartless” actions of the police in “pushing people on top of each other, creating this dogpile effect.” It’s not clear whether the “self-described social media influencer” was actually immersed in any “dogpile” himself, but evidently the very thought of such ignominious mistreatment so offended him that he was prompted to assault the police as a result, including clubbing one officer with a baseball bat.
Feuer notes that another insurrectionist, Ryan Nichols, has described a “horrific” scene “inside a tunnel at the Lower West Terrace where tear gas filled the air and screaming rioters were being crushed.” As an ex-Marine, Nichols evidently felt this was sufficiently outrageous to warrant assaulting the police. His lawyer has helpfully produced a video showing an officer repeatedly striking one of the female insurrectionists, but prosecutors have indicated that Nichols was nowhere nearby at the time, and that his efforts to cast himself as some type of valiant hero defending against police overreach were “preposterous.”
As reported by the Longview News-Journal, Nichols arrived at the Capitol steps armed with pepper spray and a crowbar. He and another insurrectionist, Alex Harkrider, also brought arms and ammunition to the D.C. area, although they weren’t carrying them during the rioting.
In Facebook posts prior to Jan. 6, Nichols called people who voted for President Joe Biden “‘true traitor(s) to the country,’ and called for violence against government officials, including President Biden and Vice President Pence.” [...]
The day before the riots, Nichols commented on Facebook, “hunting pedo politicians in DC.”
Beginning at about 1:40 p.m. on Jan. 6, Nichols live streamed the march to the Capitol on Facebook. The clip mentioned in court documents was described as an “expletive-laden, threatening tirade” which included his expressed desire to drag politicians through the streets.
As Feuer observes, claims of self-defense or protection of others under these circumstances are very difficult to prove, particularly when there exists ample video evidence of the defendants’ own violent behavior.
Indeed, in order for such defenses to be viable, the rioters will have to persuade a judge and jury that they or others in the mob at the Capitol were victims of unlawful attacks by the police. That could be difficult given that so much of the rioters’ own violent behavior was caught on video and that officers are justified in using some amount of force in the performance of their jobs.
For example, for Lang to sell his “knight-in-shining armor” strategy to a jury he’ll have to explain why he spent an hour fighting with police before Boyland was trampled to death by his co-insurrectionists. And he will also likely have to square his delicate sensibilities with the fact that he later threatened to “get an arsenal together” to disrupt Biden’s inauguration.
As Feuer reports, most of the defendants who have raised these “self-defense” claims took part in “the ferocious melee at the Lower West Terrace of the Capitol, where the fighting was worse than anywhere else on Jan. 6.” Consequently, their lawyers are well aware that enough video footage and social media evidence exists to convict their clients several times over. That probably explains why they feel they have no choice but to pursue such a high-risk strategy, one which seriously risks backfiring on them with both judges and juries.
But many may not even get the chance. Prosecutors have begun filing motions seeking to bar such defenses at trial as unsupported by either the facts or the law. The strong likelihood is that any of the insurrectionists who claims he was acting in self-defense—or out of some noble feelings of empathy, for women or otherwise—is in for a very rude awakening.