Marty Hayes

by Marty Hayes, J.D.

Each month or so, we get word that one of our Armed Citizens’ Legal Defense Network members has passed away. Usually, word comes from the late member’s spouse, but sometimes from other family members. Well, this month we here at the Network are grieving that our Advisory Board member Jim Fleming passed away after being sick with COVID-19. This just happened a couple of days ago, so we have not had time to really process what his loss means, but we wanted to make sure our members got the sad news. We will have more to say next month. For now, we feel terribly sorry for what his wife, Lynne, is going through.

Last Word on Kyle Rittenhouse

I have followed the Rittenhouse case since its inception, with the intent of summarizing it like I did with the George Zimmerman case ( This time, though, I was relieved of this duty by the addition of Art Joslin to the staff of the Armed Citizens’ Legal Defense Network.

When Art agreed to write about the details of the case for the eJournal it gave me license to give my opinion regarding this incident, without the need for lengthy discussions of the fine details. So, here goes…

For those of you who are castigating Rittenhouse for his actions, I believe you are being a little harsh. Maybe even a lot harsh. Sure, we can sit in our easy chairs and pontificate on Facebook about the fact that he shouldn’t have been there, but if not Rittenhouse, then whom? Surely not the police, they were not allowed to protect the property in question; nor the small number of National Guard troops mobilized. The biggest problem I saw, was there were far too few other men and women who were willing to take a stand and not allow the destruction of their community. What would have been the outcome of the evening if there had been hundreds of visibly armed citizens standing watch outside businesses, putting out fires and in essence, saying “get off my lawn?”

Perhaps it is time for armed citizens to form “militias” for this exact purpose. A militia leader, who initiates a phone tree of a hundred or so other militia members could rally a force of armed citizens within a couple of hours, especially if the majority of militia members were tuned into what was going around them. Where I live (unincorporated Lewis County, WA), there are approximately 25 law enforcement officers on duty at any given time, employed by the county, state, local cities and towns. Certainly 25 officers are not nearly enough personnel to quell a riot the size of what occurred in Kenosha, Wisconsin.

If anyone reading this thinks this is a pretty good idea, may I respectfully suggest you do a bit of homework before you take ANY steps towards this. First, you must act within the law, at all times. This means understanding what your local and state statutes and state case law says about forming a militia. When I arrived in Lewis County almost 30 years ago, there was an old boy I would see on occasion who carried a 1911 in a military flap holster, wearing OD green fatigues with a patch on the shoulder which read, “Lewis County Militia.” I thought to myself that I moved to the kind of place I would likely fit in. This same individual would likely have not escaped the attention of local police authorities had he exhibited the same appearance in downtown Seattle or Portland. In addition to researching statutory law and case law about militias, I would also attempt to meet with your local county prosecuting attorney and see if he or she would be willing to outline their probable response if an incident like the Rittenhouse case occurred in your jurisdiction.

Please understand that I am not suggesting this course of action for anyone, but instead just exercising my First Amendment rights of free speech and the discussion of ideas. I am NOT calling for the formation of organized militias, but instead, just discussing the topic, okay?

Now, getting back to the Rittenhouse case specifically – what caused this incident? First, the news media pushed the agenda that the shooting of Jacob Blake was racially motivated, which set off a cascading series of riots in the Midwest. On the second night of unrest (fueled by the absence of law enforcement to quell the riots), the Rittenhouse incident occurred in conjunction with additional rioting. Within a few hours, Rittenhouse had turned himself in and had been arrested for murder, due to the fact that two were dead by his hands. That was enough for the local county district attorney Michael Graveley to begin the prosecution. While writing this, I looked up the Kenosha County District Attorney on the Internet and found this gem describing what they are supposed to be doing.


The primary mission of the Kenosha County District Attorney’s Office is to uphold the rule of law, vigorously prosecute criminals and seek justice for victims of crime. The District Attorney is a constitutional officer, elected by the people of Kenosha County to a four-year term of office. The duties and responsibilities of the District Attorney are more particularly set forth in Section 978.05, Wis. Stats. It is important to keep in mind that the District Attorney is the gatekeeper to the criminal justice system. As such, his job is not merely to obtain convictions but to seek justice.

What is extremely interesting to me, is that throughout this whole affair, I never heard Graveley’s name mentioned once, not even by FOX News. I wonder why, since it was ultimately his responsibility to prosecute or to decide not to prosecute. People are blaming the two attorneys who handled the trial for missteps and buggering up the prosecution, but in reality, it is the elected prosecutor, Michael Graveley who was responsible for this mess. It is too bad he is not receiving the publicity he deserves.

What Did Rittenhouse Do Wrong?

In my opinion, it is not what Rittenhouse did wrong, it is what he didn’t do right. About a year ago, I filmed a couple of videos and put them up on our Armed Citizens’ TV page explaining how to defend against someone threatening you with pepper spray. Although this topic is different from the facts of the Rittenhouse case, I’d like to draw your attention to a segment of the video which demonstrates the different types of pepper sprays available. See Legal Concepts: Defending Against a Pepper Spray Attack Part 2 - YouTube.

On that video, you will see a “fogger” type of spray demonstrated. I cannot help but believe that when Rittenhouse was being chased by Rosenbaum, if he had simply emptied a fogger canister of spray towards Rosenbaum and continued to run, the spray would have affected Rosenbaum to the extent that shooting would not have been necessary. If he would not have had to shoot Rosenbaum, the other shootings likely would not have been necessary. I would recommend the following product, and while this particular company does not sell direct to the consumer, there are many that do; a simple Google search will find you some. Don’t settle for anything different, this is what you want. . To go along with buying the pepper spray, get trained in its use.

The other thing that Rittenhouse did not do right? He did not have the appropriate training to be walking around Kenosha with an AR-15 strapped to his chest. He was 17 years old, without a lot of life experience. The fact that he handled the tactical situation as well as he did was nothing short of miraculous. The legal background that he did not possess is of greatest concern to me.

“But that is why we have lawyers, right?” Well, yes and no. Most criminal defense attorneys are not trained to elicit answers from defendants regarding pre-attack indicators. I am pretty sure Rittenhouse had not educated himself regarding pre-attack indicators, which I believe is the single most important piece of information a person should possess if going armed. That is why a full-length video lecture on pre-attack indicators is part of our core member education video library. Members, log in and view . So, absent a good working knowledge and ability to speak to pre-attack indicators, all Rittenhouse could do was claim his life was in danger. Additionally, his lack of being able to deal with the prosecutors’ question of whether or not he had intended to kill the three individuals was the low point of his testimony, I felt. Fortunately, it worked out for him.

Why Isn’t Prosecutor Thomas Binger in Jail?

From what I could see, when attorney Binger grabbed the AR-15 and pointed it at the jury, he committed aggravated assault. I believe a mistrial should have been announced by the judge and Binger arrested on the spot. If anyone other than the government employee that Binger is had done that, the response by the court would likely have been different. So much for fair and equal justice.

Would the Network Have Assisted Rittenhouse?

First off, he wasn’t old enough to be a member, but if he wanted to sign up at age 18 or older, he would not be turned away. If he had been a member at the time of the incident, we likely would have assisted in his defense once we knew the material facts of the case. We would have helped him find a good self-defense attorney and paid the attorney to investigate and report on the facts. Then, we would have convened the Advisory Board and had a long discussion. Knowing how stalwart and knowledgeable our advisory board members are about self defense, I suspect the decision would have been to fund the defense. It is my understanding after reading several news accounts (which cannot always be trusted, sadly) that the defense costs were about $500,000 dollars, give or take a hundred thousand. From what I know about these things, that does not sound unreasonable. I am glad our Legal Defense Fund is fully funded at over $3 million, and of course, we could handle those legal expenses easily.

Another interesting aspect of this case is the bail money. This article linked here explains the issues centering around bail . From what I can decipher, after Rittenhouse was arrested, all efforts centered around raising $2 million dollars for his bail. Having been extradited from IL to WI, the bail was cash only; WI has banned bail bonding. The money came from several different sources, and a couple of attorneys did the fund raising. Now, it appears the attorneys are wanting to keep the money, and not give it back to the people who donated it. The Network does not have $2 million to plop down for bail, but we have 19,500 members who might be persuaded to donate the money, knowing that they WOULD get it back when the case was over. As we have always said, each case is different and would need to be handled differently. Fortunately, a $2 million bail is so outrageous that it is not a pressing concern, but we want to be prepared to deal with it, if necessary. Unless something else outrageous happens, we will put the Rittenhouse trial to bed now, with the hope that Kyle Rittenhouse survives this next stage of his life.

What is Happening in the Alec Baldwin Case?

A month ago, when the case was fresh, we had comments by the District Attorney of Santa Fe, New Mexico, Mary Carmack-Altwies that it is possible that criminal charges could be brought against Baldwin. I had hoped to have some more information by now, but it appears the investigation is continuing, with no resolution. As far as I know, no additional information has come to light, with the exception that civil suits are being filed against Baldwin and the different producers of the movie. If and when we know more, I will comment.

The Right to Keep and BEAR Arms?

I listened to the entire legal arguments presented to the U.S. Supreme Court in New York State Rifle & Pistol Association Inc. v. Bruen and by my analysis, the court will come down in favor of the petitioners, overturning the “may issue” provision of New York’s concealed carry permit laws, and rule that the state “must issue” the permits. This will be a grand step forward for our right to keep and bear arms. Look forward to the ruling in a few months.

To read more of this month's journal, please click here.