Karla Cote / SOPA Images Sipa USA via AP
Over a thousand demonstrators gathered at Federal Plaza in Chicago to protest the acquittal of Kyle Rittenhouse, November 20, 2021.
I fear that our society has entered an age of vigilantism that reflects a profound distrust in government institutions and individuals. It is a path that only can lead to disaster. Consider several quite different events of the last few weeks.
In November, a jury acquitted Kyle Rittenhouse of crimes connected with his killing of two and wounding of a third person—and astoundingly some on the right, including Donald Trump, celebrate Rittenhouse as a hero. After police officers shot Jacob Blake in Kenosha, Wisconsin, there were protests and demonstrations. Rittenhouse, who lived in Illinois, decided to go to Kenosha. Then age 17, he armed himself with an AR-15 rifle, which he was too young to legally obtain. He went on the streets of Kenosha in violation of a curfew. He testified during the trial that he was doing this to help protect local businesses.
Everything imaginable is wrong with this. A 17-year-old should not have a military assault weapon, let alone in the midst of a tense situation. He was neither trained nor capable of providing law enforcement. No police department would hire a teenager. Rittenhouse was simply a vigilante, taking the law into his own hands. It was a recipe for tragedy, and that is what occurred as he killed two people. Although the jury found that Rittenhouse acted in self-defense, it was unquestionably his effort at vigilantism that led to these deaths.
Less than a week later, a jury in Georgia convicted three men for killing Ahmaud Arbery.
Arbery, who was Black, was jogging in a primarily white neighborhood. Father and son Greg and Travis McMichael, who were white, grabbed guns and pursued Arbery in a pickup truck after spotting him running through their subdivision. They said that they were going to make a citizen’s arrest of Arbery because they had seen him in a house that was under construction and there had been burglaries in the area. Neither ever had seen Arbery commit any crime. No police officer could have arrested him because there was no probable cause that he had violated the law.
I do not think it is a coincidence that this is happening now, when trust in government is at its lowest ebb in memory.
The case received national attention because three white men had taken the law into their own hands, saying that they wanted to make a citizen’s arrest under a Georgia law that has since been repealed, and then killing a Black man. It brought to mind the tragic history of white vigilantes chasing fugitive slaves and white lynch mobs against Blacks they suspected, very often in the absence of any evidence, of crimes.
In a quite different effort to encourage vigilantism, Texas adopted an unconstitutional law that prohibits abortions at about the sixth week of pregnancy. Under current law, and since Roe v. Wade in 1973, women have the constitutional right to an abortion until the fetus is viable and can survive outside the womb, about the 24th week of pregnancy. The Texas law is unusual in that it is not enforced by the government or government officials. Instead, it authorizes private citizens to bring civil suits, and recover $10,000 from any doctor who performs an abortion or any person who aids or abets an abortion.
Texas enacted this law in an attempt to immunize it from lawsuits in federal court that would declare it unconstitutional and enjoin it. The state argued to the Supreme Court that since government officials play no role in enforcing the law, they cannot be sued in federal court for an injunction. Instead, Texas would rely on vigilantes to enforce the law.
In a stunning decision last Friday, the Supreme Court, by a vote of 5-to-4, agreed with Texas: If no state officials play a role in enforcing a law, none can be sued for an injunction. The Court concluded that state licensing officials do play a role under the Texas law, so they can be sued if they move to revoke the licenses of physicians who violate that law. But supporters of the Texas law already have announced that they will amend the law so no suit can be brought against it in federal court. The five most conservative justices let the Texas law remain in effect, as it has been since September 1, even though it is flagrantly unconstitutional.
Texas enacted this law in an attempt to immunize it from lawsuits in federal court that would declare it unconstitutional and enjoin it.
Under the Court’s decision, a state can create civil liability for any constitutionally protected behavior, and so long as no state official plays any role in enforcing it, the law will remain on the books until someone violates it, is sued, and then challenges the law in court. Under the Court’s new doctrine, for instance, a state can create civil liability for anyone who performs a same-sex wedding or owns a gun or criticizes the governor. The state conceivably can set civil liability at a million dollars, so that no one would risk being sued. In fact, on December 11, one day after the Supreme Court’s ruling, California Gov. Gavin Newsom proposed a state law that would allow civil suits against those who sell assault rifles or the parts for ghost guns, providing a $10,000 recovery for successful plaintiffs.
Justice Sonia Sotomayor outlined this danger powerfully in her dissent when she declared, “While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”
These are obviously all separate and unrelated events, yet they all share one thing in common: They involve private citizens attempting to enforce the law. I do not think it is a coincidence that this is happening now, when trust in government is at its lowest ebb in memory. Neither the left nor the right trust the police. There is a loss of confidence in the electoral system, as 70 percent of Republicans say they believe that the 2020 presidential election was stolen from Donald Trump. President Biden’s approval ratings hover just above 40 percent. Even the Supreme Court’s approval ratings are the lowest in history, with a Gallup poll showing that only 40 percent approve of its performance and 53 percent disapprove.
The solution is obviously not for people to take the law in their own hands, nor for state legislatures to enact laws that encourage this. As hard as it will be, there must be real attention devoted to restoring trust in government—and how we can go about that. There is no road map to doing this, but the rise of vigilantism must be seen as a warning that is imperative if we are to preserve the rule of law and the rights that it protects.
