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Kyle Rittenhouse Can’t Sue The Kenosha District Attorney’s Office, But He Should Be Able To


Watching Kyle Rittenhouse fall into his defense attorney’s arms after the jury read the “not guilty” verdict was an evocative moment. Watching a life get saved in real time is moving. That’s what we all witnessed — a kid’s life getting saved.

Thanks to an impartial jury and a defense team that stood strong for his constitutional rights, Rittenhouse avoided life imprisonment for a crime he did not commit. It was especially emotional for lawyers and law students like me, who dream of a moment in which we can make such a tremendous difference in our clients’ lives.

All emotion aside, however, this is not something Rittenhouse should have had to experience. This was a sham trial in which the Kenosha County District Attorney’s Office rushed to judgment before evaluating all the relevant video evidence that showed clear self-defense. Even when the prosecutors got ahold of the evidence, they did not back down. Instead, it’s quite possible they went on to commit grave prosecutorial misconduct in their attempt to throw a 17-year-old kid in prison for the rest of his life for political reasons.

Prosecution is not a game. It has real-world consequences for the defendants, but Assistant District Attorney (DA) Thomas Binger turned this situation into one big magic act to hoodwink the jury into delivering a conviction. Thankfully, the jury was not fooled.

There’s been a lot of talk about how Rittenhouse should sue Joe Biden and the corporate media outlets that wrongly slandered him as a white supremacist throughout his trial. But the real people Rittenhouse should be suing are Thomas Binger and the Kenosha DA’s office for manipulating evidence and violating his constitutional rights. Due to an outdated Supreme Court decision that immunizes prosecutors and DA offices from civil suits, however, he can’t.

Prosecutorial Misconduct

Prosecutors have a different duty than most lawyers. Theirs is not to zealously advocate for a client like a defense attorney; rather, they are ethically required to seek the truth. This means their goal is not necessarily to win trials, but to convict the guilty and free the innocent.

This is not what happened in the Rittenhouse case. The district attorney’s office charged Rittenhouse with first-degree intentional homicide two days after the incident. When video evidence surfaced that showed Rittenhouse being chased by child molester Joseph Rosenbaum, being attacked on the ground by protesters, and finally having a gun drawn on him by Gaige Grosskreutz, the DA’s office pressed on and continued to trial.

At trial, more misconduct occurred. Binger commented on Rittenhouse’s post-arrest silence, violating his Fifth Amendment Miranda rights, basic law that every first-year law student knows. In addition, he tried to question a witness about the latter’s political beliefs, and he did not drop any charges — even after Grosskreutz admitted under oath that Rittenhouse did not shoot him until Grosskreutz pointed his own gun at Rittenhouse.

Fabricated Evidence

Finally, once the case blew up in Binger’s face, he tried one last-ditch effort to throw Rittenhouse in prison for the rest of his life. He and his “expert” spent 20 hours creating a blurry photograph from drone video to try to prove that Rittenhouse pointed his gun at protesters before shooting Rosenbaum. The so-called expert testified that he used technology to zoom in to the footage to create the photo, which he blatantly acknowledged added pixels to the image.

This was simply fabricated evidence. The blurry picture, if taken as Binger argued, would have required Rittenhouse to be left-handed, which he’s not. Rittenhouse’s defense attorney said it best: What the expert “did for those 20 hours was hocus pocus and he makes an exhibit that is out of focus.”

But Binger needed this photo to “prove” that Kyle provoked Rosenbaum by pointing a gun at a different person even though Rittenhouse never pointed any gun at anybody in the videos taken at the exact same time that this blurry photo from the drone was taken. Instead of dropping charges, Binger tried to hoodwink the jury with manipulated evidence.

Extralegal Protections for Prosecutors

Rittenhouse should be able to sue Binger and the Kenosha County District Attorney’s Office for all the misconduct they committed before and during the trial. And all victims like him should have this right, as this conduct occurs frequently in our criminal justice system.

But the Supreme Court’s 1976 decision in Imbler v. Pachtman grants prosecutors total immunity from liability for such actions. This decision was not based on textualism or originalism. To be frank, it created an extralegal prosecutorial exception to Section 1983 of the Civil Rights Act of 1871.

The law plainly states that “every person” who violates someone’s constitutional rights can be sued by the victim. The Burger Court abandoned sound judgment and made up a public policy exception to the statute for prosecutors — one that Congress has never put into law.

Protecting Against Unelected Prosecutors Out for Blood

States could challenge this decision via statutes ending prosecutorial immunity. This would allow victims of prosecutorial misconduct like Rittenhouse to recover damages from cities for violating their constitutional rights and violating legal ethics.

Ending prosecutorial immunity would improve the criminal justice system by forcing prosecutors to make sure they are not wrongly attempting to convict innocent defendants by any means necessary. It is a common-sense reform that would ensure prosecutors are more careful and think twice about trying to convict a defendant with no evidence.

Some may fear ending prosecutorial immunity could create endless litigation that would slow down an already overwhelmed criminal justice system. But the already high legal bar for what constitutes prosecutorial misconduct makes this unlikely. It’s far more likely the threat of legal counteraction will simply deter prosecutors from misconduct and make it more likely they treat criminal defendants with the respect to which they are constitutionally entitled.

Voters currently have little ability to push back against rogue assistant DAs like Binger, as his position is unelected. Ending prosecutorial immunity would give defendants and the public at large at least one check against these career government lawyers who are very hard to fire due to civil service laws.

State lawmakers who caught the trial on live TV can take a lesson from the highly politicized case. The conduct the DA’s office exhibited throughout the trial is not rare; it happens every day in our criminal justice system. If lawmakers are serious about criminal justice reform, they should consider ending prosecutorial immunity to deter hell-bent prosecutors like Binger and protect all future Kyle Rittenhouses from similar prosecutorial misconduct.