UPDATE: Attorney says civil rights intimidation acquittal is win for 1st Amendment

Becky Campbell • Jul 18, 2019 at 9:43 AM

A former East Tennessee State University student’s acquittal on civil rights intimidation charges — filed after he showed up at a campus Black Lives Matter rally in 2016 wearing a gorilla mask and handing out bananas wrapped with rope — was a constitutional win, his attorney said after the verdict.

“The fact that the civil rights intimidation counts were dismissed was a vindication for the First Amendment,” defense attorney Patrick Denton said. “I don’t want to say that excuses his opinions or his conduct .... but I think he absolutely has the right to make those opinions.”

Tristan Rettke, now 21, was on trial this week on two counts of civil rights intimidation, two counts of disorderly conduct and one count of disrupting a meeting. The jury rejected all charges except disrupting a meeting and recommended a $500 fine.

The verdict: 

Rettke was an ETSU freshman when he decided to crash the demonstration with his own message that “lives matter.”

He was barefoot, wore a white T-shirt, overalls and a gorilla mask and carried a burlap sack emblazoned with a Confederate flag and marijuana leaf, rope and bananas. He offered the bananas to BLM participants and later in the video was seen kneeling down to tie the rope around the fruit. Then he dangled it in front of the protesters and later unfolded a piece of notebook paper with “Lives Matter” written on it.

Original Johnson City Press video of Rettke at the rally:

The demonstration occurred in September 2016 after several incidents of deadly encounters between law enforcement and blacks across the nation. Six BLM demonstrators testified this week during Rettke’s trial about how his actions made them feel. They said they were scared, one woman was afraid she’d never see her mother again because no one was sure what Rettke might do.

He told the group he identified as a gorilla, was there to support him and said “I look like y’all.”

Denton said Rettke “regrets the way things happened ... he had an opinion out there the same way they had opinions. I’m not going to take up for the substance of it, but he had a right to voice his opinion and he did that.”

Denton was blunt with jurors during opening statements, admitting his client’s actions were racist and that Rettke acted in an offensive manner during the Black Lives Matter demonstration. But he argued that the very law that allowed the BLM demonstration also allowed Rettke the ability to express his opinion as well. 

“I’m a First Amendment absolutist,” Denton said. “This trial meant something to me.”

“If you look at the elements of the civil rights intimidation ... it’s clear they didn’t fit the conduct out there that day. No one was ever threatened and certainly there was no proof on the idea he was doing this to silence anyone else. From the start, that’s been our focus. He’s charged with imperiling someone else’s civil rights and by being prosecuted for this that’s what (the state) was doing to him. I could never quite get the state to see the irony in that.”

Assistant District Attorney General Erin McArdle said she still believed the state met the burden of proof, but she respected the jury’s decision and hopes something positive came from the whole incident “and that is going forward that people will understand that this type of behavior is not going to be tolerated, and our office will look at every case individually and continue to prosecute the cases we feel violate the law.”

Rettke and his family left the courthouse without making any comment.

“He’s probably a little camera shy and doesn’t want to say anything, but that doesn’t mean he’s not sorry about it,” Denton said, adding that he hopes the verdict “emboldens (others) to feel like they can do that more freely.”

Rettke does face up to six months in jail in addition to the maximum fine the jury imposed, but he would be eligible for diversion since he has no criminal history. That would give him the opportunity to have the conviction erased from his record at some time in the future.

He has a sentencing hearing Aug. 14 at 1:30 p.m.

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