An ACLU Observer With a Gun
Organize Right is a regular column with not so much a beat as a meander on the subject of organizing: how the right does it, how the left does it, lessons from its history, and its implications for today.
During the Kyle Rittenhouse case, some interesting items in the court proceedings escaped mainstream attention. One appeared in the testimony of Gaige Grosskreutz, the lone survivor of the three people Rittenhouse shot on August 25, 2020. On the stand, Grosskreutz conceded that Rittenhouse had not fired when Grosskreutz raised his empty hands and refrained from attacking. When Grosskreutz then drew a firearm and pointed it at Rittenhouse’s head, Rittenhouse shot him.
The mainstream press pretty much ignored this aspect of the testimony. Conservative observers highlighted Grosskreutz’s omission of any mention of his firearm in previous legal motions he had filed, as well as the fact that he was carrying illegally due to his carry permit having been invalidated.
For the purposes of this column, however, what is really interesting is that Grosskreutz testified under oath that he was on the streets that evening as a legal advisor for the Wisconsin ACLU.
Legal observers are so important to leftist movements that a friend involved in lefty organizing was shocked when I explained to him that right of center legal observers do not exist. It’s not that Team Righty doesn’t have lawyers. There are conservative-leaning groups like the Federalist Society. There are conservative-leaning legal advocacy organizations, such as the Alliance for Defending Freedom. There are individual conservative lawyers and law firms. There are some far right lawyers and occasional (failed) far right efforts to create some kind of actual far right legal defense apparatus. But the legal infrastructure on the mainstream and far left, which includes legal observers, is something else entirely.
Officially, legal observers exist to be impartial witnesses—on the scene to witness and record the actions of the police and protect the civil rights of the public. In the words of their ACLU training, they are there to “observe, educate, document, and deter.” In practical terms, legal observers are an arm of the demonstrators who launder their demonstrator-friendly recordings and testimony through a separate organization that provides a veneer of impartiality to media for complaints about police actions.
In some respects, this approach is fair. There are often plenty of legitimate reasons for demonstrators to complain about police actions. At the same time, it’s deliberately deceptive. Legal observers are impartial in the sense that they want police to obey the law like everyone else, but they’re not impartial in the sense that they don’t give a damn about your right to not have your business burned down.
You see that tension at work in a legal observer training held by the ACLU-WI on June 5, 2020, not long before the shooting in Kenosha; Grosskreutz would have attended either this training or one very like it. If you watch the video or read our lightly cleaned-up transcript (less “ers,” “ums,” and the like; names and contact information redacted because this column is not about specific individual people but about the mechanics and infrastructure), you’ll note it’s mostly about methods. The trainer puts a lot of emphasis on being professional and doing a professional job. It’s not a fire-and-brimstone lecture on how cops suck.
But the training also shows ACLU-WI walking a bit of a tightrope. For example: The appearance of impartiality is very important to the ACLU. The trainer instructs people who are legal observing to not warmly greet demonstrators whom they happen to know, not to engage in debates, and not to join in chants: “In case you are called upon to be a witness in a subsequent lawsuit, we don’t want to see you chanting on a video camera, ‘Fuck the police’ while you’re trying to give impartial observations of police interaction, or their lack of recognition of the rights of demonstrators. It’s going to be easy to discredit you that way” (Slide 9, 10:37).
The trainer also emphasizes that legal observers aren’t there to provide advice for protestors:
We’re not there to negotiate between demonstrators and law enforcement. We’re not there to broker peace. We’re not there to advise legal obs—other demonstrators on how to make more creative signs, or how to have a better chant which is in iambic pentameter, or to chant for justice in haiku fashion. Those are all things you can do before or after the demonstration, when you’re on your own time. We’re not there to advise people. We’re not there to advise law enforcement on how to, um, subdue any potential flashpoint, or, you know, who do we think are troublemakers. That’s not what our role is. There, we’re monitors. (Slide 11, 14:56)
That slip of the tongue—“legal obs—other demonstrators”—is amusingly Freudian. The ACLU’s success in standing up for demonstrators depends on a perception of its impartiality, but the people who attend their trainings and turn out to protests to do the actual work of legal observing tend to be, well, the kind of people who go to protests. And the trainer recognizes this. When asked whether legal observers should stand down from observing when a curfew is in effect, he says yes, but adds: “We’ve instructed our legal observers generally to not get themselves exposed and ticketed during a curfew. Now, here’s a beautiful thing about legal observers. We have trained well over a thousand people to be legal observers in my 15-year duration here with the ACLU of Wisconsin, and so we’ll find folks that are demonstrators who have been legal observers, and they know exactly what to photograph and film while they’re demonstrating. And so they’re capturing a lot of the same story and sharing that with us” (Slide 76, 1:40:44).
The trainer’s solution to the appearance of conflicts of interest is to ask people to not be legal observers and protestors on the same day (Slide 76, 1:44:52). Unsurprisingly, while the presentation’s early slides stress that legal observers aren’t supposed to give advice to protestors, a later section of the presentation includes advice for protestors (Slide 74, 1:32:21), from strategic advice about deciding on and effectively conveying the message of the demonstration and using it to effectively build power, to more tactical information about documenting suspected agent provocateurs and using bail funds.
The tension between the appearance of impartiality and the reality that legal observers tend to come from the radical community also manifests in the training’s attitude towards breaking the law. On the one hand, legal observers are expected to refrain from breaking the law—no violence, no public urination (which can be a surprising temptation during lengthy protests), no theft; not even taking down an old poster to write on if you need paper (Slide 11, 15:32). There is an exception if someone is in immediate danger or hurt, but even then the trainer stresses a separation of roles: “If you feel you see something untoward—maybe there’s some sort of violent clash between protesters and counter protesters—and you have a moral obligation to step in, just take off your legal observer vest before you mix it up. But do what you need to do within the general parameters of the rules that we have set up” (Slide 76, 1:43:44).
On the other hand, more than once the question comes up about what legal observers, whose job is recording evidence, should do when protestors may be breaking the law. The trainer reassures them that protecting the public from protestors is not part of their job. “You may want to not necessarily capture the facial images of folks because that could also be evidence against them if they do something. Or maybe they’ve taken off from work because they know their boss is hostile to them participating in the Black Lives Matter action because their boss is a racist, and you don’t want to get them fired either lawfully or—I mean unlawfully fired because they’ve been captured on that video and you’ve accidentally posted it to the public where their boss can see this and then be a jerk” (Slide 13, 22:53). He later reiterates this point, and adds an interesting amplification (Slide 22, 48:55): “And the footage you’re sharing with us, we’re not going to share pell-mell. We’ve got years of experience; our lawyers may evaluate this for possible use, and then we will, um, do due diligence to identify the people that are in these videos and reach out to them before we begin to engage.”
Legal observers themselves are not just told to be law-abiding, but unarmed (Slide 11, 18:06): “Don’t bring drugs, alcohol, or weapons. I don’t care what you do in your free time. I don’t care what you have the right to do or what you feel you have the right to do while we’re legal observing. Many people have different comfort levels with other—with many different issues. And we just don’t bring drugs, alcohol, weapons.” The trainer notes that “people have a right to demonstrate with weapons in Wisconsin,” but it’s important to respect the lead of the organizers—and, of course, the law.
What if a legal observer is arrested? The answer is interesting and surprisingly generous: “We have never ever ever turned our back on one of our people. We have waited hours for them and called and checked in, alerted their loved ones and taken care of them. So although you may when you become a legal observer sign a waiver that says we will disavow any knowledge of you and leave you there, we have not yet done that. And, in fact, the ACLU has repeatedly worked to get pro bono attorneys for demonstrators who are not legal observers who have been caught up exercising their First Amendment rights or engaged in non-destructive acts of civil disobedience that we felt that they should have our assistance in finding somebody to help them with fines and fees or navigating that. So I personally will never turn my back on you” (Slide 76, 1:47:25). This support requires previous coordination. “For an overview, people that wish to be legal observers with the ACLU of Wisconsin…need to coordinate with us before the actions so we can support you. You can’t just go out and say you’re a legal observer if you’re involved in some stuff. It’s not a magic pass. Nobody legal observing is above or exempt from the law. It just helps us to coordinate with you so that we know and are aware of where there might be a potential violation of civil rights and civil liberties and also to support you if something goes poorly” (Slide 6, 3:49).
All of this raises some interesting questions. If Grosskreutz’s testimony was truthful and he was actually a legal observer for the ACLU-WI, did the ACLU-WI stand by Grosskreutz? Did he benefit from their offer of support? Given that he violated law and the ACLU’s rules by illegally carrying a firearm, is he still a legal observer for the ACLU?
As far as I know, no press has asked these questions. Nor have they asked the interesting ones downstream of them: Namely, does the ACLU have any potential exposure to a lawsuit given that one of their legal observers tried to use an illegally-carried handgun to shoot someone exercising a right to legally justified self-defense?
Not being a lawyer, I wouldn’t care to speculate. It’s darkly amusing to note a parallel, though: The white nationalist group Aryan Nations was financially obliterated by a Southern Poverty Law Center-backed lawsuit after its security guards mistook a passing car’s backfire for gunshots, opened fire on the car, and detained the terrified occupants. It’s not a one-to-one parallel, however, and a judgment that’s an extinction-level event for a white nationalist organization—$6.3 million in year 2000 dollars—would be petty cash for the ACLU.
* * *
Legal observers are only one small part of a much larger framework. At the other end, there are the movement lawyers of the National Lawyers Guild, a far left umbrella group that provides legal support for radical and revolutionary leftist movements—even at the expense of their individual clients, who are willing to go to prison for a principle.
Recently this approach came into question in a case involving two environmental activists, Jessica Reznicek and Ruby Montoya, who became disappointed with the failure of protests to stop the Dakota Access Pipeline and had turned to sabotage, burning heavy equipment and taking welding tools to the pipeline. They set their first fire in November 2016 and continued into 2017, causing minor but costly delays.
Reznicek and Montoya came out of the Catholic Worker movement—if you don’t know it, it’s a far left Catholic group with close to 200 group homes all over the United States. Though they’re pledged to nonviolence, and some members find even property damage controversial, the group spins off and even supports some pretty serious radicals. During their spree, Reznicek had written in favor of sabotage in her Catholic Worker newsletter. After their arrest in January, Montoya used the annual fundraising letter for their Catholic Worker house to raise personal funds. When interviewed by Julia Shipley for a Rolling Stone/GRIST profile in January 2020, Montoya—ankle monitor and all—was still living in a Catholic Worker house.
According to Shipley’s profile of the two women, Reznicek fell in with the Catholic Workers after being impressed with the ongoing support role they played in her local Occupy protests. Montoya, a preschool teacher, came along later after being impressed with press accounts of Reznicek’s protests. The women escaped detection, but not the suspicion of pipeline security contractor TigerSwan. When TigerSwan documents leaked to the Intercept, and a journalist approached Reznicek and Montoya for comment, the women decided to confess to their sabotage in a last effort to convince the public of the seriousness of their cause.
In July 2017, they recorded a statement, delivered it, and vandalized the sign of the Iowa Utilities Board, for which they were promptly arrested. The FBI searched the Catholic Worker home where Reznicek and Montoya lived, but the women weren’t charged for the pipeline sabotage until September 2019—a long interval that, as Shipley’s Rolling Stone piece notes, suggests the government was unsuccessfully monitoring Reznicek and Montoya to find potential co-conspirators.
Reznicek and Montoya received pro bono representation from a member of the National Lawyers’ Guild. Both pleaded guilty. Subsequently, however, Montoya changed her lawyer. This new counsel, also a member of the National Lawyers’ Guild, filed to change Montoya’s plea on the grounds that the severe abuse Montoya had suffered growing up had left her stunted and unusually vulnerable to manipulation. The filing quoted TigerSwan’s own assessment that she appeared to have been brainwashed.
The new counsel argued that both the original counsel and Montoya’s father had pressured Montoya to plead guilty against Montoya’s own interests, the counsel for reasons of solidarity with her co-defendant and her father to prevent his abuse of Montoya from coming out in court. The original lawyer, and a faction aligned with her, then sought to have the new counsel expelled from the National Lawyers Guild, on the grounds that the new counsel was undermining the entire concept of movement lawyering—that is, pursuing collective and noncooperative defense to pursue a legal outcome that may be more harmful to individual defendants, who willingly assume that burden in order to preserve and advance their movement.
The original NLG lawyer’s faction puts it this way:
We know that when clients cooperate with the state, the damage done to individuals—including, in many cases, the cooperating client—as well as to movements is increased. A policy of noncooperation bolsters morale, solidarity, and often better individual legal outcomes.
To claim that joint or collective movement defense is intrinsically unethical is hostile to the fundamental animating spirit of the NLG and is unsupported by the ABA Rules of Professional Conduct. Such claims do active harm to individual clients, movements and their lawyers and undermine the credibility of movement lawyering and the trustworthiness of the NLG.
If that’s a little muddy, let’s clear it up. The general assumption in the far left is that Montoya’s new lawyer has Montoya cooperating with law enforcement—i.e., telling cops what she knows about the movement. This is anathema to the National Lawyers Guild at large, which is less concerned with the fate of individual clients than it is with preserving and perpetuating radical leftist movements. To be fair, this is a philosophy that those individual clients often share.
From the point of view of Montoya’s new attorney, however, the philosophy of representing the entire movement led the previous NLG lawyer to bully an easily-misled client into pleading guilty to a prison term rather than, you know, actually representing the interests of the client.
Criminal defense attorney Mark Bennett was struck by the case when I mentioned it on Twitter. He was more interested when he discovered he knew the lawyer who was the subject of the internal NLG complaint, and then he tracked down and read the NLG complaint itself. His reaction, posted to his Substack, was detailed, frank, and extremely negative. Noted Bennett: “This damns not only the organization—What sort of lawyers’ organization damns its members for doing their job for their clients?—but also its members—What sort of lawyers pay dues to an organization that will damn them for doing their job for their clients?”
“By threatening to expel Daphne [the new lawyer] for suggesting that association with an organization such as NLG may create an inherent conflict with the interests of the Client Singular, NLG demonstrates that membership in NLG creates an inherent conflict with the interests of every client.”
Bennett further argued that “The Taskforce Statement will rightly be Exhibit 1 for prosecutors seeking to keep NLG members from appearing for defendants in criminal cases.”
He’s not wrong; it could be. And if NLG members were barred from appearing for defendants at trial, it would be a huge blow to far left movements. But it doesn’t strike me as exceedingly likely. It’s not clear that any prosecutors will be even entertaining the possibility in individual cases, much less that prosecutors nationwide would embrace it as general policy. Even if they did, the NLG would still be around to provide infrastructure and support outside of courtrooms, as would all the other aspects of leftist legal infrastructure.
And that infrastructure is colossal. From our perspective on Team Righty, countering them through lawsuits and policy may be necessary, but even more important is learning from them. Right now, the closest thing to a legal observer role on the right is the emerging amateur documentarian—which, even when done laudably, lacks longstanding institutional infrastructure and is dependent on a relatively small number of people. We could do a lot more—and maybe some of the existing legal institutions on the right could start thinking about how.
David Hines has a professional background in international human rights work with a focus on recovery from forced disappearances and mass homicide. He lives in Los Angeles.