There’s Precedent for That

Lawyers know about precedent–defined as, something that precedes or comes before: for example, a court decision that serves as authority for deciding subsequent cases involving similar facts or legal issues, or other precedents which serve as guides for administrative conduct and decisions. Precedents provide consistency; they are the rules of the rule of law.

That is why it is so frightening when we are witness to lawless conduct that goes unpunished or, worse, is rewarded. Sadly, this serves as precedent for more lawless conduct of the same sort.

Case in point. In August, 2020, Kyle Rittenhouse, age 17, left his home in Illinois, traveled to Kenosha, Wisconsin where he armed himself with an assault rifle purportedly to “protect businesses” from those lawfully protesting the shooting of a black man by police. That night Rittenhouse shot and killed two protesters and injured another.  He was charged with homicide and tried. But the jury apparently believed his claim that he was “defending himself” and acquitted him.

Setting aside the question of why this blubbering teenager voluntarily chose to cross state lines, arm himself with a weapon designed to kill humans, became involved in a lawful protest, and assumed the responsibility of “protecting businesses” that was the duty of local law enforcement, Rittenhouse’s acquittal promptly elevated him to hero status and the poster child for angry white men, vigilantes, gun nuts, right wing extremists, Fox News and Big Lie, politician/supporters of the January 6 insurrection—including Donald Trump, Marjorie Taylor Greene, Matt Gaetz, Paul Gosar and Madison Cawthorn, to name a few (some of whom actually offered Rittenhouse employment with the federal government).[1]

Rittenhouse’s case and others involving the shooting of innocent civilians by self-styled “patriots” committing acts of vigilantism, which not only go unpunished but are rewarded, confirm to those of similar ilk that their decision to take a gun to a lawful assembly is justification enough to use it. After all, they can always claim self-defense for a situation they, themselves, created.

This sort of sick mindset was all that an Idahoan needed when he recently queried in a public forum: “When do we get to use the guns? … How many elections are they going to steal before we kill these people?”–and he stated he wasn’t joking.[2]

And, not to be outdone, Quentin Rhoades a Missoula Attorney and member of the State Bar stated about a particular school superintendent with whom he didn’t agree, “shoot ‘em”—at a Church meeting for God’s sake.  Apologizing later, Rhoades said he was joking as evidenced by the members of the congregation laughing when he said it.[3]

I’ll bet Jesus missed the punch line of that joke.

Then, there’s Attorney General Austin Knudsen’s decision to take over the Rodney Robert Smith case.  Lewis-Clark County Attorney Leo Gallagher properly charged Smith with felony assault (punishable by 20 years imprisonment and a $50,000 fine) and several misdemeanors in connection with Smith allegedly entering a Helena restaurant, refusing to wear a mask (when there was a mask mandate), knocking water glasses over on a table, making a scene, threatening employees, apparently with a gun, and striking one employee in the genitals after pinning him to the wall.

Rather, Knudsen jumped in and cut a sweetheart deal with Smith who plead to a misdemeanor and was required to pay a small fine and court costs—a tap on the wrist.[4]

Were there disputed facts?  If so, that’s why, as most attorneys know, we have jury trials. But more to the point, will the next angry white guy get the Attorney General’s beneficence; and why did Smith get it in the first place?  Who knows?

But, at least, there was precedent for General Knudsen’s conduct.  Earlier this year he ordered Gallatin County Attorney Marty Lambert to dismiss a lawsuit against Rocking R Bar for violating a 10 p.m. closing time ordered by the county health board to slow the spread of the coronavirus. General Knudsen directed Lambert to dismiss the case against the bar because the 10 p.m. closing time “defies commonsense” and is “devastating to Montana workers and small businesses.”[5]–which rampant coronavirus apparently is not.

And, of course, there’s General Knudsen’s office’s involvement in the threats against St. Peter’s hospital’s doctors and staff over their lawful and ethical refusal to provide ivermectin (horse wormer) to an elderly A-list Republican patient.

That aside, the precedent now is that if you’ve got a beef with the hospital and you’re a Republican, who ya gonna call? AG Knudsen!

The bottom line is that all of these incidents of gun violence, thuggery, and abuse of political power have gone unpunished and, effectively or actually, have been rewarded.  Every one of these and other similar incidents set a horrible precedent; a toxic template for future conduct. An attack on the rule of law.

When—in self-defense, of course–an angry person shoots up a school board meeting or lawful public assembly; when a thug comes into your business and threatens and assaults your employees and staff; when public officials threaten citizens and professional people to obtain something for a member of their party, well, suck it up, now there’s precedent for that.

As for law abiding citizens trying to exercise their constitutional rights of assembly, speech, and to petition their government for grievances—what are they supposed to do when our national and state public officials won’t honor our Constitutions and the rule of law and hold criminals to account?

Best start looking over your shoulder. There’s precedent for that.


[1] Heather Cox Richardson; Letters from an American,Friday, November 19, 2021





James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.