Motion hearing in gorilla mask civil rights intimidation case could block case proceeding

Becky Campbell • Jan 28, 2018 at 5:18 PM

A Washington County Criminal Court judge will hear arguments Monday on a motion to dismiss a civil rights intimidation case that stemmed from a college student dressed in overalls and a gorilla mask as he offered bananas to Black Lives Matter demonstrators in 2016.

Tristan Rettke, of Murfreesboro, was an 18-year-old freshman at East Tennessee State University in September 2016 when he donned his overalls, put on a gorilla mask and carried bananas inside a burlap bag with a Confederate flag and marijuana leaf pictured on it. His activity can’t be disputed as the incident was recorded by numerous students and bystanders who flooded social media with their footage.

On those videos, Rettke was seen holding a sign that read ‘Lives Matter,’ offering bananas to BLM demonstrators and holding bananas up with a small rope tied around them. Some witnesses described the rope to a noose. When asked by a demonstrator why he was wearing the mask, Rettke said, “I identify as a gorilla.”

The incident occurred during a time of high tension throughout the country after several situations involving police shooting black men. Peaceful Black Lives Matter demonstrations were occurring across the nation, and a group of ETSU students organized one to take place in Borchuck Plaza outside the Sherrod Library on campus. The plaza is designated as a free speech zone.

Campus police officers responded to the demonstration and removed Rettke from the immediate area. He was later arrested on a civil rights intimidation charge. The case ultimately went to a Washington County grand jury and he was indicted on five charges — civil rights intimidation with intent to prevent someone from free from exercise of speech, civil rights intimidation because of someone’s free exercise of speech, disrupting a meeting or procession and two counts of disorderly conduct.

Rettke’s defense attorney, Patrick Denton, has essentially said the state has bitten off more than it can chew, but the final say will be in the hands of Judge Lisa Rice.

Denton filed a motion to dismiss the charges in July, but because of an officer’s personal leave, the hearing was delayed until now. Assistant District Attorney General Erin McArdle filed her response to the defense motion and stated officers asked Rettke if he was comparing the black students to gorillas, and he responded, “I knew it would invoke that thought process,” and also said, “I knew they were getting mad.”

According to McArdle’s response, Rettke used racial slurs — including the term “monkey” —  toward the BLM group and “admitted he antagonized the BLM attendees ... that he went to the BLM rally to ‘piss people off’ and ‘provoke a reaction.’ ”

McArdle said in her filing that Rettke’s “conduct clearly falls into the areas of expression that are not afforded protection by the First Amendment, specifically, the ‘fighting words’ exception or the ‘incitement to violence’ exception.”

A 1942 Supreme Court ruling found that a defendant who used the words “damn racketeer” and “damn Fascist” was not protected under the First Amendment. The court went on to further designate what’s not protected.

“These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resorts to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”

Rettke, who withdrew from the university within two days of the September incident, is free on a $10,000 bond.

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