Kyle Rittenhouse is almost certain to face civil trials for deaths of Joseph Rosenbaum and Anthony Huber, and the injury of Gaige Grosskreutz. Civil liability may also fall on the Kenosha Police Department for conspiracy against rights and deprivation of rights under color of law.

In a criminal case, the prosecutor has to prove beyond a reasonable doubt that the defendant is guilty. In a civil case, it’s only necessary to prove that the defendant willfully engaged in reckless or criminal behavior that led to permanent injury or loss of life. It is also highly unlikely that Rittenhouse will have a quirky MAGA judge to protect him in a civil proceeding, which should make it possible for a lawyer who brings suit to cross-examine Rittenhouse far more aggressively, to ask him about his ties to the group “The Proud Boys”. A plaintiff whose counsel was able to focus in on Rittenhouse’s nationalist leanings, and his contempt for Civil Rights activists, would be far more likely to prevail in Civil Court. There is also the possibility that with Rittenhouse currently planning to appear on right-wing propagandist Tucker Carlson’s FOX News program, that he will “say the quiet part out loud”, and in the process of boasting about his acquittal, end up providing a wealth of evidence to establish his nationalist leanings, and portray him as someone who viewed himself as a “white knight” who took his AR-15 and ran into a political protest intending to punish people of color and the white protesters that supported them, for insulting his notions of white supremacy.

From a framing standpoint, lawyers for civil plaintiffs need to point out that the Rittenhouse verdict represents a step back to the Jim Crow era, and that a victim of murder does not have to be of a different race for that murder to be racially motivated. The Civil Rights Martyrs page on the Southern Poverty Law Center website lists a number of white civil rights activists who were murdered for trying to promote equal rights for African-Americans in Jim Crow states. The racist hates the white liberal who calls for equal rights for all regardless of race, just as much as he hates people of color. The racist sees the white liberal as a “traitor to his race” who must be punished. Plaintiffs should be able to win relief if they can successfully portray Rittenhouse as a reckless child caught up in white supremacist ideology who walked into a crowd of civil rights protesters armed with an AR-15, intending to punish them for insulting his notions of white supremacy.

A far more interesting dilemma exists for the Kenosha Wisconsin police department. Lawyers for family members of the deceased may choose to file a case in Federal Court under  42 USC § 1983 Civil action for deprivation of rights, for violation of 18 USC § 241: Conspiracy against rights and 18 USC § 242: Deprivation of rights under color of law. The decision to completely ignore the need for de-escalation during a racial justice protest, and to allow armed counter-protesters to circulate throughout the protest area represents at least gross negligence, if not an obvious intent to threaten and intimidate Civil Rights activists in violation of their 1st and 14th Amendment rights. In the Supreme Court case United States v. Price, the court held that: “To act under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”.  In United States v. Price, the joint activity consisted of police releasing three individuals from a prison, because those police intended to let a group of private individuals lynch the three prisoners. The Kenosha case is palpably similar in that the fraternization of police and armed vigilante protesters, constituted an informal deputization in the exact manner described in U.S. v. Price. Police allowed armed right-wing vigilantes to access and circulate throughout the full range of the protest area, because they intended for those right-wing vigilantes to intimidate and harass the protesters. That conspiracy between the Kenosha Police department and right wing extremists constituted not just an attempt to violate the 1st and 14th Amendment rights of Civil Rights activists, but also led to the death of two of those activists, and the serious injury of a third. The ultimate goal of action against the Kenosha Police department should be the removal of those individuals who willingly engaged in this kind of behavior, and plaintiffs would maximize their chances of a successful proceeding if they frame their concerns as a matter of protecting civil rights, and would offer to waive any claim for financial relief in lieu of having those officers who engaged in that reckless deputizing of right wing extremists fired from the department, and barred from ever working for the Kenosha Police Department ever again.

Kyle Rittenhouse is likely to face civil liability for the lynchings of civil rights activists in Kenosha Wisconsin. Counsel for plaintiffs should frame their arguments by comparing what happened in Wisconsin to violence by white supremacists during the 1950s and 60s. Rittenhouse should be portrayed as a reckless child caught up in right-wing ideology who ran into a crowd, armed with an AR-15 intended to punish civil rights activists for offending his notions of white supremacy. The Kenosha police department should also face civil action for improperly deputizing armed right-wing extremists to intimidate and harass civil rights protesters, in violation of their 1st and 14th Amendment rights.