Vigilante Justice: Leave Policing to Police

         Three people, largely innocent, were killed at the hands of armed vigilantes: two trials, with different verdicts. The gunslinging teenager Kyle Rittenhouse was acquitted in Kenosha, Wisconsin, for killing two people and seriously injuring a third, by claiming self-defense against assailants who supposedly intended to do him harm. By contrast, the McMichel father and son were convicted in Brunswick, Georgia, of multiple counts of murder for killing the young Black jogger, Ahmaud Arbery, on Feb. 23, 2020. The death amounted to a present-day lynching, even if the lynch mob consisted only of three neighbors concerned with home break-ins and equipped with a shotgun instead of a rope.

            Despite the different outcomes, together the two episodes powerfully refute the myth that a good guy with a gun is part of the answer to crime and disorder in the streets. Policing is a demanding profession, best left to trained professionals who follow use-of-force rules laid down by publicly accountable administrators. With his military-style rifle, Rittenhouse possibly helped protect the used car lot from damage during the disorder in Kenosha, but the truth is that Rittenhouse was responsible for the only deaths during the disorder on the evening of August 25, 2020, more than a year before his eventual trial.

The two trials differed in multiple aspects. In Brunswick, Georgia, the experienced prosecutor Linda Dukinoski was sure-footed in presenting evidence and cross-examining young Travis McMichel in contrast to the occasional trial errors by assistant district attorney Thomas Binger in the Kenosha trial. Rittenhouse had the benefit of a two-million-dollar legal defense financed by a go-fund-me campaign by conservatives and gun rights partisans that allowed practice trials to rehearse Rittenhouse’s eventual testimony.

The McMichels and their neighbor, William “Roddie” Bryan, had no donors to help finance their somewhat meager defense. To the contrary, once the video of Arbery’s killing surfaced and the twice-delayed prosecution began, public opinion recognized the killing for what it was: a lynching that cried out for justice and accountability rather than celebration and legal impunity for the perpetrators.

The judges in the two cases differed as well. In Kenosha, Rittenhouse had the benefit of a judge, the 75-year-old Bruce Schroeder, who was clearly partial toward the defense and perturbed by the prosecution. In Georgia, Judge Timothy Walmsley, called in from nearby Savannah after the local judges in Glynn County all recused themselves, presided over the thirteen-day trial evenhandedly with calm and patience.

The death of Ahmaud Arbery began with racial profiling in its starkest terms. In his phone call to the local police, Travis McMichel reported “a black man running down the street,” their street so to speak in this white neighborhood. The father, Gregory McMichel, had weak grounds at best to initiate a citizen’s arrest of the Black jogger. At a distance, he could not have identified Arbery as the supposed intruder at the nearby construction site and could not have known what if anything the intruder had stolen.

 With Rittenhouse’s acquittal fresh in mind, convictions in Georgia seemed by no means certain despite Travis McMichel’s acknowledgment on cross-examination that he faced no threat from the unarmed jogger. Their defense relied weakly in the end on the premise that Arbery’s attempted flight from two armed white men amounted to proof of his guilt. With all three men convicted of multiple murder counts, court watchers credited Dukinoski with carefully downplaying the racial elements of the case for a jury that included only one Black juror in a county where African Americans comprise about one-fourth of the population. The McMichels’ defense lawyers had used peremptory challenges to excuse all of the Black potential jurors even as Dukinoski objected.

            Reacting to the Nov. 24 verdicts on the PBS NewsHour, Paul Butler, a Black law professor at Georgetown Law School and a former federal prosecutor, recalled McMichel’s initial report of “Black man running down the street” as evoking the “American history of racial violence and white supremacy and unequal justice under the law.” “You might say,” Butler continued, “that today these jurors disrupted that history.”

            “Criminal trials are not designed to be instruments of social change,” Butler added. “But sometimes verdicts reveal something about social progress. Today we learned that in Glynn County, Georgia, in a trial in which three white men hunted down and killed a Black man, those men were convicted by a virtually all-white jury. In this country that counts as progress.”

            The partisan celebration of Rittenhouse’s acquittal, on the other hand, sends a mixed message about vigilante justice. The Nov. 19 verdict is subject to reasonable doubt even if the jurors deliberated carefully over four days in weighing the evidence and applying Wisconsin’s law of self-defense. As the Washington Post rightly observed, Rittenhouse is “not a hero, but a hapless young man who armed himself with a gun he shouldn’t have had, foolishly put himself in a volatile situation where he had no business being, and ended up doing grievous and irreparable harm.”

            More legal proceedings are still pending. The McMichels and Bryan face the possibility of life prison sentences for their state court convictions and await likely trial on federal hate crime charges. Kyle Rittenhouse’s friend, Dominick Black, faces possible trial in Illinois on charges of intentionally giving a dangerous weapon to someone under age eighteen, resulting in death.

Justices Balk at Inmate's Religious Liberty Case

            The Roberts Court has shown extraordinary solicitude toward religious freedom claims brought in such varied contexts as challenging public health restrictions on attendance at religious services, challenging in gay marriage cases the application of laws prohibiting anti-LGBT discrimination, and challenging restrictions on use of public funds for students to attend parochial schools.

            Conservative justices were far less receptive last week, however, to a Texas inmate’s plea to have his spiritual adviser present with him during his execution by lethal injection. John Ramirez asked that his pastor, Dana Moore, be allowed to pray audibly during the execution and to lay hands on him as he passes into unconsciousness.

            For many years, Texas authorities had allowed audible prayer and touch by prison chaplains hired to attend executions. In Ramirez’s case, however, Texas authorities notified his lawyer shortly before the scheduled execution that his pastor would not be allowed audible prayer or touch during the procedure.

            In imposing the new restriction, the authorities expressed concern about decorum and security despite utterly no evidence from years of practice that chaplains’ prayer and touch during executions had disrupted the procedure or interfered with the administration of the lethal drugs.

            Representing Ramirez during oral arguments at the Court last week (November 9), Seth Kretzer repeatedly stressed that point as he fielded challenging questions from conservative justices, including Thomas, Alito, and Kavanaugh, who had all voted in support of free exercise claims in other contexts.

Thomas began by questioning Ramirez’s sincerity: was he filing repeated free exercise claims to game the system, Thomas asked. Kretzer answered with indignation. “I do not play games,” he countered. “There’s been no dilatory tactics in this case.”

Roberts followed by clarifying that Ramirez was specifically asking that his pastor, Moore, be allowed to touch his foot as the execution proceeded. Alito then joined to imagine a succession of pleas from inmates.

“What's going to happen when the next prisoner says that I have a religious belief that he should touch my knee? He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head?” Alito asked. “We're going to have to go through the whole human anatomy with a series of cases.”

Kretzer’s reply left Alito unsatisfied. “I take it what you said is, well, each one of these is different, factually different; prisoners have different religious beliefs; each one has to be analyzed separately,” the justice said. Kretzer said he knew of no religion that specified “a touch on this particular piece of the body.”

.“What we're talking about here is a laying-on-of-hands doctrine that the minister does with all of his congregants as they're nearing the point in time that they die,” Kretzer added. Appearing before a Court with six practicing Catholics, Kretzer might have noted an analogy to the Catholic sacrament of Extreme Unction. – the last rites that a priest performs to a Catholic believer.

Kavanaugh joined to reject Kretzer’s assurances that nothing would go wrong by allowing audible prayer and touch during the execution. Not good enough, Kavanaugh objected. “I'm still having problems with they're saying we should keep the risk to zero,” he said, “and you're saying, no, you should tolerate a little more risk because Alabama does it.”

The justices’ varied objections were in contrast to their responses to free exercise claims in a succession of gay marriage cases from the anti-gay baker in Colorado, the florist in Washington, and the printer in Kentucky – who all claimed religious objections to providing services for same-sex couples. None of the justices in those cases questioned the religious bona fides of the plaintiffs’ objections to same-sex weddings. Nor did any of the justices fret in the first of the cases that hearing one such case would invite a succession of cases, each one with a different fact pattern presenting the Court with different issues each time.

Kavanaugh’s favorable view of Texas’s compelling interest in a zero-risk execution differed from the Court’s blithe dismissal in the gay marriage cases of each state’s interest in enforcing its anti-LGBT discrimination laws. In the execution case, Ramirez’s free-exercise claim comes with a congressional mandate that the state can override his religious liberty only under a demanding standard. The Religious Land Use and Institutionalized Persons Act (RLIUPA), enacted in 2000, specifies that a state government can impose a substantial burden on a prisoner’s free exercise only to further a compelling interest and only if the restriction is narrowly tailored.

            Under that standard, Ketzer argued that Ramirez’ plea should certainly be granted. Supporting Ramirez’ stance, the Biden administration also argued that Texas had not met its burden under the federal law. “[O]ur recent experiences suggest that a categorical ban, like Texas appears to have, isn't the least restrictive means for doing so,’’ deputy solicitor general Eric Feigin told the justices. “To justify such a ban, Texas would have to offer -- its experts would have to offer state-specific reasons why it's necessary.”

            In the then-recent spate of thirteen federal executions, Feigin told the justices, the government “has allowed vocalization essentially throughout” the procedure. In addition, Feigin said, “[W]e've allowed physical contact one time briefly before the execution -- before the administration of the drugs began.”

            Feigin also contrasted the government’s attitude with Texas’s stance. For the most part, Feigin said, the government accommodated inmates’ requests regarding spiritual advisers. “Everyone was clearly satisfied enough that we avoided last-minute litigation,” the government lawyer said. 

Abortion Rights Still in Limbo in Texas

             Supreme Court justices met in conference on Friday (Nov. 5) and issued late in the day a routine orders list granting review in three more cases for the current term. They adjourned, however, without acting on more urgent business: what to do to restore the Court’s own authority over the state of Texas’s attempt to nullify the Court’s abortion rights precedents in the country’s second most populous state.

            The justices had divided 5-4 two months earlier in a shadow docket decision [Sept. 1] that allowed Texas’s ban on abortions after the sixth week of pregnancy to go into effect despite opinions from four of the justices pronouncing the law unconstitutional. In the meantime, women in Texas seeking abortions had to cross state lines into Oklahoma or Louisiana to vindicate the constitutional rights guaranteed to them under Supreme Court precedents.

            The justices expanded their review of the Texas law by agreeing to hear arguments in separate suits challenging the law: one brought by abortion providers, Whole Woman’s Health v. Jackson, and the other brought by the United States under the name United States v. Texas.

            Both suits had to contend with Texas’s unprecedented stratagem to avoid federal court review of the law. Texas’s never-before-tried ploy turned on denying the state any role in enforcing the ban on pre-viability abortions and turning enforcement over to private citizens through punitive civil suits against anyone aiding in an abortion illegal under the new law.

 The Court heard arguments in the two cases on Monday [Nov. 1]. The justices’ questions in the first of the cases indicated likely approval of the providers’ legal effort to nullify the law, formally titled the Heartbeat Act and commonly referred to by its bill number S.B. 8. The Justice Department filed its own suit in the United States’ name after the Fifth Circuit stayed the injunction that the abortion providers had won in their suit at the district court level.

The United States also won an injunction in its suit—specifically, enjoining court clerks from docketing private suits filed under S.B. 8 and enjoining private citizens who actually attempt to file such suits. The Fifth Circuit stayed that injunction as well, thus leaving the law in effect despite two lower court rulings finding it unconstitutional.

Representing the United States in the second argument on Monday, the newly confirmed solicitor general Elizabeth Prelogar boldly and unapologetically defended the procedurally unprecedented suit against the Texas law. The law, Prelogar declared, was a “brazen attack” on the Court itself and on Congress. “It's an attack on the authority of this Court to say what the law is and to have that judgment respected across the 50 states,” Prelogar  explained. “And it's an attack on Congress's determination that there should be access to pre-enforcement review in federal court to vindicate federal rights. The United States may sue to protect the supremacy of federal law against this attack.”

To justify the suit, Prelogar had to get around a century-old Supreme Court precedent known as Ex parte Young (1908) that protects states from being sued directly to overturn unconstitutional laws and instead requires such suits to name as defendant the state officials charged with enforcing the allegedly unconstitutional law.

One passage in that decision posed a particular obstacle to the remedy that the government sought in its suit. “[T]he federal court may enjoin an individual or a state officer from enforcing a state statute on account of its unconstitutionality,” the Court declared, “but it may not restrain the state court from acting in any case brought before it . . . .” An injunction to that effect, the Court added, “would violate the whole scheme of this Government.”

Prelogar drew challenging questions quickly from the trio of hard-line conservatives – Thomas, Alito, and Gorsuch – who all found various reasons for doubting the procedural posture of the United States’ suit. Thomas repeatedly demanded that Prelogar cite some precedent for the United States’ suit. Prelogar acknowledged she had no precedent to cite because there was no precedent for the scheme that Texas devised to prevent judicial review. “[B]ecause a state has never before crafted an enforcement scheme like this, there has not been the kind of situation that would prompt the United States to intervene in this manner,” she added.

In later reply to a supportive question from one of the Court’s liberal justices, Kagan, Prelogar defended the injunction that the district court had entered in the United States’ suit. “[T]he district court recognized that in these very unusual circumstances it was also appropriate to bind the clerks and the judges, who are being used as part of the machinery of this apparatus to impose the substantial chilling effect through the S.B. 8 enforcement actions,” she replied.

With her rebuttal, Prelogar closed by pleading the urgency of the case. She asked the Court to “affirm the preliminary injunction entered by the district court and immediately [emphasis added] vacate the stay that the Fifth Circuit entered in this case so that Texas cannot continue to deny women in its borders a right protected by this Court’s precedents one day longer.” Any immediate action seemed unlikely, however, after the Court decided to hear the two cases under normal procedures. So now, women in Texas must wait in legal limbo as the justices draft opinions and come to some decisions, probably weeks from now.