Kenosha Shooting: What The Law Says About Militias

CBS News 2, Chicago/August 28, 2020

By Chris Tye

Chicago — Kyle Rittenhouse, the Illinois teen charged with killing two protesters amid unrest in Kenosha this week, will remain in custody in Illinois for the next month after a judge delayed his extradition hearing.

The 17-year-old was a member of a self-proclaimed militia. But what are militias allowed to do? And what lines were crossed in the confusing and deadly night that led to Rittenhouse facing murder charges and potentially life in prison?

Every state in the country prohibits paramilitary activity — private militias like the one in Kenosha this week. And when these groups pretend to have legal authority, decide for themselves when to use deadly force — all while answering to no one — they’re breaking the very law they claim to be defending.

“Our job is to protect this business,” Rittenhouse said before the shooting. “Part of my job is to help people.”

“Militias, which are the coming together of people without authority, that is prohibited. That is organized paramilitary activity. It is not protected by the second amendment,” said Georgetown Professor Mary McCord.

While it is against the law, law enforcement appreciated them early Wednesday morning.

“We appreciate you guys. We really do,” police could be heard on video saying to the militia members in Kenosha.

“Where it crosses the line is when they take it upon themselves to actually engage in law enforcement activity,” McCord said. “They see it within their authority or their right to then call themselves up as this augmenting force to the police.”

McCord has offered to help local authorities with litigation against militia organizations by using Wisconsin law that prohibits private paramilitary as she did three years ago with militias in Charlottesville, Virginia.

Police agencies thanking them muddies the message, but the law is clear. And safety valves on militias are nonexistent.

“You have that many heavily armed individuals, they are not reporting up to any public accountability, any civilian authority,” she said. “Even if this young man was not officially a member, their presence emboldens others to join them‚ and here we are talking about a 17-year-old who can’t even carry a weapon legally, open carry weapon in Wisconsin because of his age. It also emboldens counter protesters to react more aggressively.

State national guards are technically militias, but unlike the Kenosha militia, they answer to governors and follow protocols. Those are safeguards militia organizations don’t have. Look no further, McCord says, than the 17-year-old with an AR-15 able to march alongside them.

“That permissive environment, whether they disowned him or not disown him, whether he was officially a member or not, they didn’t turn him away, and the result is the tragic death of two people and serious injury of another person,” McCord said.

Militia groups have been on the move a lot of late. Some are defensive, trying to jump in and help police or a city they feel is in need of help. Then there are offensive ones in Michigan where they are marching on the state capital to impact change or affect legislation they want to see passed. Shutdown orders have animated them in Michigan and Ohio, storming state houses, demanding the removal of shutdown orders.