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Father of man killed by Rittenhouse can pursue conspiracy claims

Law enforcement officials’ arguments that they are entitled to qualified immunity were not convincing to a federal judge.

MILWAUKEE (CN) — The father of a man fatally shot by Kyle Rittenhouse during the 2020 protests in Kenosha, Wisconsin, will be able to pursue conspiracy claims against Rittenhouse and local law enforcement for his son’s death, though a federal judge has dismissed other counts.

U.S. District Judge Lynn Adelman found Wednesday that Joseph Huber had adequately served Rittenhouse with his complaint and that several government entities were not entitled to qualified immunity for an alleged conspiracy to allow vigilantes like Rittenhouse to kill protesters. 

In a complaint filed in August 2021, Huber alleged that his son Anthony Huber was killed while attempting to disarm Rittenhouse, who had just shot and killed another man, Joseph Rosenbaum. Rittenhouse, Huber claimed, had been among a group of armed militia members actively encouraged and assisted by the Kenosha Police Department and Kenosha County Sheriff’s Department to intimidate and kill protesters in the aftermath of the police shooting of Black man Jacob Blake. 

The militiamen, Huber alleged in the complaint, were given free reign of the city despite several members explicitly stating their intent to “shoot to kill.” Huber claims police even told militia members that they intended to funnel protesters toward them in an effort to force a confrontation. When Rittenhouse shot Rosenbaum, Huber and a third man, Gage Grosskeutz, police took no steps to apprehend him and he was permitted to walk away from the scene. 

Rittenhouse, who was 17 at the time, was acquitted on all criminal charges against him in a highly publicized trial late in 2021. Throughout that trial, Rittenhouse’s attorneys argued that he feared for his life and acted in self-defense in shooting Rosenbaum, Huber and Grosskeutz. 

The elder Huber brought a collection of civil rights claims against Rittenhouse, the law enforcement entities involved in the response to Kenosha’s protests and the various cities and counties from which those departments hailed. The protest response, he alleged, violated his son’s First Amendment, due process and equal protection rights. 

In Wednesday’s order, Adelman found that Huber had adequately stated a due process claim based on a state-created danger – namely, the alleged police decision to funnel protesters directly toward the vigilantes.

“The protestors were safe before the police forced them south on Sheridan, into a confined area with armed individuals who were antagonistic and had expressed the intent to use their rifles on protestors,” the Bill Clinton-appointed judge wrote.

The defendants’ contention that the younger Huber could have avoided the situation by obeying a curfew they had imposed, he added, did not absolve them of liability. Nor did their argument that Huber independently made the decision to attempt to disarm Rittenhouse.

“The defendants essentially contend that Huber’s decision to intervene in the shootings was a superseding cause that breaks the chain of causation between their creating a dangerous situation and Huber’s death,” he wrote.  “However, the complaint alleges that Huber attempted to disarm Rittenhouse to prevent him from shooting additional protesters, i.e., that he attempted to avert the very danger that the state allegedly created.” 

Abelman also found that Huber had more than overcome the arguments of several law enforcement officials that they are entitled to qualified immunity.

“The complaint… alleges that defendants intentionally sent the protestors into the path of the armed individuals to ‘deal with’ (i.e. use force against) them, because they were hostile to the protestors’ social-justice message and racial makeup,” he wrote. “It is, of course, clearly established that officers cannot intentionally harm members of the public for no reason (or for malicious reasons).” (Parentheses in original.)

Citing similar reasoning, Abelman also declined to dismiss several claims alleging that law enforcement conspired with the would-be vigilantes to use force against demonstrators, motivated by racism and opposition to protesters’ anti-police views. While such a conspiracy was “unlikely,” he wrote, the defendants’ contention that it was “absurd” was too far of a stretch.

Conspiracy claims for violation of the constitution’s equal protection  and due process clauses, along with First Amendment retaliation, will proceed. Huber’s claims against unnamed police officers at the scene of his son’s death also survived dismissal. 

Huber ran into trouble, however, when Abelman arrived at his state law claims. While Abelman found that his son’s conduct in attempting to disarm Rittenhouse could feasibly be found not to be negligent under the “rescue doctrine” – which precludes findings of contributory negligence when a person is injured while attempting to save others from danger – intentional-tort claims against the various municipalities were dismissed under a state statute granting municipalities immunity against such claims for the conduct of their employees.

Huber also conceded that he had not given adequate notice of his claims to several of the outlying cities and counties he sued, and so state law claims against them were also dismissed, along with a claim for indemnification against several public entities. 

Rittenhouse’s argument that he had been improperly served did not convince Adelman, either.

“Plaintiff has made extensive efforts to serve him. He engaged three professional investigators who have spent more than 100 hours searching for RIttenhouse all over the country,” he wrote. “Rittenhouse, in contrast, is almost certainly evading service.”

The judge noted that while Rittenhouse denied living in Florida, where an investigator found his mother and sister and served the complaint, he had been “deliberately cagey about his whereabouts,” saying only that he lives “in a state other than Florida.” 

“The purpose of the time limit for service is to provide the defendant with notice of the action and allow him to begin investigating his defense,” Adelman wrote. “It is obvious that the service attempt at the Florida home achieved this purpose, as Rittenhouse entered an appearance in this case within 20 days of that attempt.” 

One of Rittenhouse's attorneys, Shane Martin of the firm Nelson Mullins, said that the decision was disappointing but stressed that it didn't mean Huber's claims had merit. “While we respect the judge’s decision, we do not believe there is any evidence of a conspiracy," Martin said. "We are confident that, just as the Kenosha jury found, Kyle’s actions that evening were not wrongful and were taken in self-defense.” 

Attorneys for Huber and the various city and county defendants did not respond to requests for comment early Wednesday afternoon.

Categories / Civil Rights, Government, Regional

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