What can the US Department of Justice do about Rittenhouse? Unfortunately, not much.

OPINION: Sophia A. Nelson unpacks what the legal codes say in terms of what options federal prosecutors have to hold Kyle Rittenhouse accountable after contentious verdict.

Kyle Rittenhouse thegrio.com
Kyle Rittenhouse looks back as attorneys discuss items in the motion for mistrial presented by his defense during his trial at the Kenosha County Courthouse on November 17, 2021 in Kenosha, Wisconsin. Rittenhouse is accused of shooting three demonstrators, killing two of them, during a night of unrest that erupted in Kenosha after a police officer shot Jacob Blake seven times in the back while being arrested in August 2020. Rittenhouse, from Antioch, Illinois, was 17 at the time of the shooting and armed with an assault rifle. He faces counts of felony homicide and felony attempted homicide. (Photo by Sean Krajacic - Pool/Getty Images)

If we are honest. None of us are really surprised. 

The Rittenhouse trial fix was in from the moment the judge said that a “victim” could not be called a victim. In essence, dehumanizing the two young men slain by Rittenhouse, and the other left badly wounded. 

“It is what it is,” as my grandpa from Alabama used to say. He was a son of the deep south. He shared stories with us often about his life pre-World War II service in a segregated, hostile America that did not welcome Black men and women as U.S. citizens or as equals. 

I will no longer be shocked or outraged by the disappointing truth that Kyle Rittenhouse was given a pass as a young White for roaming the streets of Kenosha, Wisconsin with an AR-15. We all know that if Rittenhouse had been doing the same thing as a Black teen in the presence of police officers he would have, at best, been detained, and at worse, fatally shot down in the streets. 

The question on the table now is what’s next? Can something be done to hold Rittenhouse legally accountable for the deaths of two lives and the wounding of a third? 

Kyle Rittenhouse Demonstrator
Demonstrators gather outside of the Kenosha County Courthouse as the jury deliberates for a second day in the trial of Kyle Rittenhouse on November 17, 2021 in Kenosha, Wisconsin. (Photo by Scott Olson/Getty Images)

House Judiciary Chairman, U.S. Rep. Jerry Nadler of New York seems to think so. 

“This heartbreaking verdict is a miscarriage of justice and sets a dangerous precedent which justifies federal review by DOJ. Justice cannot tolerate armed persons crossing state lines looking for trouble while people engage in First Amendment-protected protest,” Nadler wrote in a tweet posted on Friday

Congressman Nadler’s point is that the United States Department of Justice (DOJ) Civil Rights Division could seek charges against Rittenhouse for violating the civil rights of the three protesters he shot: Anthony Huber, Joseph Rosenbaum and Gaige Grosskreutz.

Honestly, I don’t see it happening. I took a look at the law and here is what I can tell you as a former federal congressional committee counsel and practicing attorney. 

First, let’s recap the facts of what happened in Wisconsin on that fateful night as protests erupted over the shooting of Jacob Blake by a White police officer. There’s a key fact that very few media outlets are sharing and there is a context for why the verdict resulted in not guilty and why it is so chiling. 

Kyle Rittenhouse was just 17 when he traveled from his home in Antioch, Illinois, to Kenosha after businesses in the city were ransacked and burned over the shooting of Blake, by the hands of a White police officer. Carrying a weapon that authorities said was illegally purchased by a friend for the underage Rittenhouse, he joined other armed citizens in what he said was an effort to protect property and provide medical aid.

Kyle Rittenhouse Kenosha thegrio.com
Kyle Rittenhouse (Photo: Twitter)

The federal law that governs in this instance is 18 U.S.C. §1111, “murder is the unlawful killing of a human being with malice aforethought.”An individual may be charged with murder if the alleged killing violated federal law. Yet, when I look at the options to charge Rittenhouse none seem to fit. The crimes that would fit the federal statute for the DOJ include the murder of a(n):

  • Elected or appointed federal government official. These officials include members of the executive branch of government, such as the President, Vice-President, and cabinet members, members of the legislative branch, including United States representatives and senators, and members of the judicial branch, including Supreme Court justices.
  • Federal judge or law enforcement officer. It is also a federal crime to murder a federal U.S. appeals court judge, district court judge, or law enforcement officer such as an F.B.I. officer, United States marshal, or D.E.A. agent.
  • Immediate family member of a federal law enforcement officer. The murder of a close relative of a federal law enforcement officer is also a federal crime. Other alleged murders are tried as federal crimes because of the circumstances in which they happened, such as:
  • A murder committed to try to influence the outcome of a federal court case. This crime includes killing court officers and jurors. It also includes killing police informants and witnesses to prevent testimony or in retaliation for providing testimony.
  • A murder committed during a bank robbery. Bank robberies are federal crimes. The United States government may pursue federal murder charges if someone such as a bank employee or customer is killed during a bank robbery.
  • A murder related to rape, child molestation, or the sexual exploitation of children. Rape, sexual abuse, and sexual exploitation of minor children are federal crimes. Therefore, any murder committed during the occurrence of these crimes is a federal crime.
  • Drug-related murders. Drug violence may be a federal crime and any murder that occurs may be tried as a federal murder.

Finally, some alleged murders are tried as federal crimes because of where they occurred. These crimes include:

  • Murders on ships. United States maritime law makes it a federal crime to commit a murder on a ship or to commit a crime which results in someone’s death if that crime threatened the safe travel of the vessel within U.S. waters.
  • Murders for hire. Interstate commerce is a federal issue. If the murder occurred by crossing state lines or using communication methods, including telephones, mail, or internet, then a murder for hire could be a federal murder crime.
  • Murders by mail. Federal law prohibits using the postal service to send deadly agents, such as poisons or explosives.
Kyle Rittenhouse looks back at the potential juror pool during the jury selection process at the Kenosha County Courthouse in Kenosha, Wis., Monday, Nov. 1, 2021. (Sean Krajacic/The Kenosha News via AP, Pool)

I think the reality is that, once again, a young White male was given every positive inference and advantage in such a case. Rittenhouse’s claims of self-defense held even though he himself helped to create the danger and the chaos that ultimately led to the shootings. 

I do not think the DOJ can go after him. What I think the DOJ can do is discuss public safety, and work with Congress on updating our laws or passing updated federal laws to include such offenses. The goal at this point has to be to prevent this from happening in the future. Which I fear it will. More young vigilantes, with more guns, killing unarmed citizens protesting. 

The families of the deceased will most likely sue in civil court. It is a preponderance of the evidence which is a far lesser standard. And they most likely can prevail. That remains to be seen, but for now, Kyle Rittenhouse is a free man, headed to Congress as an intern perhaps, or to book and movie deals as who he is heralded as an American hero by the far right.

Sophia A. Nelson is a contributing editor for theGrio. Nelson is a TV commentator and is the author of “The Woman Code: Powerful Keys to Unlock,” “Black Women Redefined.”

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