ARTICLES
LEGAL VIGILANTES
Ric Simmons*
ABSTRACT
Recent years have seen a series of high-profile cases of private individuals
using lethal force in their purported attempts to enforce the criminal law. But
these self-appointed private enforcers, such as Kyle Rittenhouse or the killers of
Ahmaud Arbery, are only the most extreme cases of a vast amount of vigilante
activity that occurs in the United States. This Article will examine different types
of vigilante conduct and evaluate the social desirability of different forms of pri-
vate punishment. It first defines the term “vigilante” and then traces the history
of vigilante actions throughout the nation’s history. The Article then examines
different forms of modern-day vigilante justice, creating a taxonomy of private
punishments. Finally, the Article analyzes how the law restricts (or fails to
restrict) vigilante actions and offers some proposals to amend the law to better
regulate these actions.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
I. WHAT IS A VIGILANTE?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
A. Defining the Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
B. History of Vigilantism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
C. Motivations for Vigilante Action . . . . . . . . . . . . . . . . . . . . . . 173
II. MODERN-DAY VIGILANTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
A. Nonviolent Vigilantes: Hackbacks, Shaming, and Blackmail . . 176
B. Violent Vigilantes: Merchant’s Laws, Citizen’s Arrests, and
Self-Defense Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
1. Kyle Rittenhouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
2. George Zimmerman . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
3. Gregory McMichael, Travis McMichael, and William
Bryan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
4. Joe Horn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
C. Self-Defense Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
III. REGULATING VIGILANTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
* Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, The Ohio State University.
Thanks to Angie Lloyd, Erin C. Blondel, Brenner Fissell, Joe Kennedy, Guha Krishnamurthi, Alice Ristroph, and
the participants in the 2022 CrimFest conference for invaluable comments and feedback on this paper. Thanks
also to my research assistant Nathan Rhodes. © 2024, Ric Simmons.
157
A. The Line Between Legal and Illegal Vigilantism . . . . . . . . . . . 195
B. Civil Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
INTRODUCTION
In November of 2021, two high-profile cases brought the question of vigilante
justice back into the public consciousness. First, a jury in Kenosha, Wisconsin
acquitted Kyle Rittenhouse, a 17-year-old who shot three individuals, killing two
of them, during violent protests in that city.
1
Less than one week later, a jury in
Atlanta, Georgia, convicted Gregory McMichael, Travis McMichael, and William
Bryan for killing Ahmaud Arbery, whom they chased down in pickup trucks after
observing him walking at a construction site in their neighborhood.
2
Both cases
spurred a national conversation about the ability of the criminal justice system to
deter and punish those who engage in violent actions in the name of enforcing the
law. Although the men who killed Ahmaud Arbery were nearly universally con-
demned for their actions, reactions to Rittenhouse’s actions were mixed, divided
predictably along partisan lines. But underneath the political responses lie a num-
ber of significant legal questions: when does the law sanction vigilante conduct?
And when (if ever) should the law sanction vigilante conduct?
The answers to these two questions are more complex than they first appear,
mostly because the concept of “vigilante justice” is difficult to define. There are
many different ways private individuals can punish criminal conduct. Some meth-
ods are violent and some are not. Some help to reinforce the rule of law because
they punish wrongdoers and deter future criminal conduct. Others undermine the
rule of law because they distort the goals of the criminal justice system and pre-
empt more legitimate police responses. And, most importantly, some types of vigi-
lante actions are perfectly legal, some are clearly illegal, and many lie in a grey
area in which their legality depends on a number of specific factors.
This Article will examine different types of vigilante conduct and evaluate the
social desirability of different forms of private punishment. Part I will define the
term vigilante, using an intentionally broad definition, and then trace the history of
vigilante actions and examine the motivations of those who engage in such actions.
Part II will look at modern-day examples of vigilante justice and divide these
examples into different categories. It will then examine relevant criminal laws, fo-
cusing on the law of self-defense and defense of others, to see what kinds of vigi-
lante conduct the law currently permits. Finally, Part III will propose changes to
the current law to discourage the most socially pernicious types of vigilante
behavior.
1. See infra notes 174–93 and accompanying text.
2. See infra notes 205–13 and accompanying text.
158 AMERICAN CRIMINAL LAW REVIEW [Vol. 61:157
I. WHAT IS A VIGILANTE?
A. Defining the Term
The term “vigilante” is an Anglicization of the Spanish word vigilante, which
means “watchful” or “watchman,” which in turn comes from the Latin vigilare,
which means “to keep awake”—a reference that calls to mind the ancient volunteer
night watchmen who would raise a hue and cry if they observed criminal activity.
3
The dictionary definition is “a member of a volunteer committee organized to sup-
press and punish crime summarily (as when the processes of law are viewed as
inadequate).”
4
Vigilante, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/vigilante (last visited Jan. 2,
2024).
Professor William E. Burrows, who wrote one of the seminal works
on vigilantism, argued that vigilantism is difficult to define because it can be “all
things to all men, and anyone who attempts to force it into some nice, neat schol-
arly slot soon sees that the task is impossible.”
5
Nevertheless, Professor Burrows
boldly made the attempt, arguing that a vigilante is a member of an “organized,
extralegal” group “which take[s] the law into their own hands.”
6
He also argued
that violence, or the threat of violence, is a necessary element of vigilante groups,
since “[w]ithout violence in some form, actual or potential, vigilante action would
mean next to nothing, because it would be incapable of intimidation and, therefore,
of ‘regulation.’”
7
This definition is consistent with how vigilante justice has been
viewed for most of history, but is ultimately limited in a number of ways: it
requires some kind of group action or decision, and it only applies to those who
commit or threaten violence. As we will see below, there are many other acts of
private criminal enforcement that do not fit this narrow definition.
8
Professors Paul and Sarah Robinson offered a somewhat different definition of a
vigilante in their recent book, Shadow Vigilantes.
9
In their view, vigilantes are
always committing illegal actions, but there is a critical distinction between moral
vigilantism and immoral vigilantism. They provided a list of ten rules to differenti-
ate between the two types of vigilantism, including only acting when there is a “se-
rious failure of justice” and believing that there is “no lawful way to solve the
3. RIC SIMMONS, PRIVATE CRIMINAL JUSTICE: HOW PRIVATE PARTIES ARE ENFORCING CRIMINAL LAW AND
TRANSFORMING OUR JUSTICE SYSTEM 134 (2024); see also JAMES F. PASTOR, THE PRIVATIZATION OF POLICE IN
AMERICA: AN ANALYSIS AND CASE STUDY 34 (2003).
4.
5. WILLIAM E. BURROWS, VIGILANTE! xi (1976).
6. Id. at 6 (quoting RICHARD MAXWELL BROWN, STRAIN OF VIOLENCE: HISTORICAL STUDIES OF AMERICAN
VIOLENCE AND VIGILANTISM 95–96 (1975)).
7. Id. at xiii.
8. See infra notes 123–25 and accompanying text.
9. PAUL H. ROBINSON & SARAH M. ROBINSON, SHADOW VIGILANTES: HOW DISTRUST IN THE JUSTICE SYSTEM
BREEDS A NEW KIND OF LAWLESSNESS (2018).
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