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Prosecutorial Immunity Has Become a License to Burn America

The opinions expressed by columnists are their own and do not necessarily represent the views of
Mark Hertzberg/Pool Photo via AP

The criminal trial against Kyle Rittenhouse is over. He has been found Not Guilty of all charges by a jury. Although Rittenhouse has not confirmed or denied filing defamation suits against news outlets which defamed him, many speculate he will. However, some of the people Rittenhouse will not be suing are Michael Graveley, Kenosha District Attorney, or Thomas Binger, the Prosecutor who tried him. Binger was admonished in court by Judge Schroeder for what was characterized as grave constitutional violations. Binger accused Rittenhouse of staying silent to match his story with that of other witnesses, implying there was something criminal about Rittenhouse exercising his 5th amendment rights. Binger has also been accused of acting in bad faith and withholding evidence, which was bought up during a motion for a mistrial during jury deliberations. Despite all of this, Rittenhouse cannot sue his Prosecutors. They are protected by Prosecutorial Immunity, a type of Absolute Immunity that protects Prosecutors from civil liability for prosecutorial abuses, no matter how severe. Perhaps it is time for that to change.

When the 2020 riots started, one of the rioters' demands was that police lose their Qualified Immunity. Qualified Immunity is a legal doctrine that protects government officials from civil suits related to their performance of discretionary functions of their jobs. So long as the official was following statutory norms and not violating anyone's constitutional rights, they are immune from civil suits. So, in other words, if a police officer is doing his job in good faith and following department policy and the law, he cannot be sued for doing his job. However, this level of protection pales in comparison to a Prosecutor's much more thorough Immunity, in which they cannot be sued no matter how egregiously they may have violated someone's rights. The legal justification for this policy comes from the 1976 case Imbler v Patchman, a Supreme Court case in which a Prosecutor was sued based on accusations of withholding evidence during a murder trial. The Supreme Court ruled unanimously that Prosecutors were shielded from civil liability.  Giving someone this level of Immunity from liability appears reckless or ill-thought-out at first glance, but it does serve a purpose. Prosecutors would be in civil proceedings constantly if every single defendant could sue them. The civil courts would be clogged, and it would be nearly impossible for Prosecutors to do their job. However, when the Supreme Court handed down this ruling in 1976, there was an assumption on their part that the vast majority of Prosecutors were good-faith actors working in the interest of justice. With the rise of far-left Prosecutors in America who are more interested in Critical Race Theory than justice, this assumption of good faith cannot be relied on.

Let's be clear about what Kenosha was trying to do by prosecuting Rittenhouse. They wanted to send a message that ordinary people have no right to stand up to far-left progressives. They also wanted to offer Rittenhouse up as a human sacrifice to appease the woke mob. Anyone who watched the video evidence or heard the initial accounts of what happened from witnesses like Richie McGinniss or Drew Hernandez saw what happened as a clear case of self-defense. None of that mattered to the Prosecutors, though. They were content to bring life sentence carrying charges against a teenage boy. They happily violated his civil rights in court by implying he was guilty of something by exercising his 5th amendment rights and staying silent. Perhaps most unnerving is that there is a possibility they withheld evidence from the defense, given some of the claims about video footage that were raised during closing arguments. They attempted to ruin someone's life to win points with the far left. The Rittenhouse trial is just one example of a DA's office being weaponized to pursue a far-left anti-American agenda.

There are examples of far-left prosecutors abusing their offices all over the country. In a growing number of instances, this has led to innocent people being hurt and even killed. The next example to gain national attention again came from Wisconsin. On November 21, 2021, a man alleged to be Darrel Brooks drove an SUV through a parade in Waukesha, Wisconsin, killing six and wounding close to 50 other people. Brooks had been arrested on serious felony charges before the attack in Waukesha but was out on bond awaiting trial. Those charges are a painful foreshadowing of what happened in Waukesha, given that they stem from Brooks using a vehicle to run someone over during a domestic dispute. Brooks' bail was set at a preposterously low $1,000 based on a Milwaukee District Attorney John Chisholm's office's recommendation. Brooks also has an active warrant in Nevada.

Since the beginning of the 'defund the police' movement, we have seen spikes in crime all over America. Much of that crime can be directly attributed to prosecutorial negligence or outright misconduct. Obviously, we cannot hold these elected officials accountable for not predicting the future, but one does not need a crystal ball to know that letting violent criminals out of jail will lead to more violence. Furthermore, I am not suggesting prosecutors should be punished just for getting a case wrong, as that is bound to happen. There is a big difference, though, between an honest Prosecutor doing their job who made a mistake and a Prosecutor who is abusing his office to advance a Marxist agenda. Whether it be Prosecutors in Milwaukee letting a violent felon out of jail for a negligible amount of money or  Prosecutors in Kenosha attempting to railroad a kid to appease the fashionable sensibilities of CNN viewers or one of the countless Prosecutors across America in major cities who are refusing to prosecute quality of life crimes or hold criminals accountable, there should be a mechanism to hold these political operatives civilly responsible for the damage they are doing and for that we need to end Prosecutorial Absolute Immunity.

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