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Judge denies motion to dismiss charges against ETSU gorilla-masked student

Zach Vance • Updated Jan 29, 2018 at 8:41 PM

Was former East Tennessee State University student Tristan Rettke protected under the First Amendment when he wore a gorilla mask and overalls while dangling rope-tied bananas in front of Black Lives Matter supporters during a September 2016 rally at Borchuck Plaza?

Or did Rettke violate Tennessee’s civil rights intimidation law, which broadly states its against the law to intimidate or coerce others from exercising their civil rights?

It appears a jury trial will make that determination as Washington County Criminal Court Judge Lisa Rice denied a motion from Rettke’s attorney on Monday that requested all charges related to the incident be dismissed.

In March, a Washington County grand jury indicted Rettke on two civil rights intimidation charges, two counts of disorderly conduct and one count of disrupting a meeting or procession.

Initially expected to last 45 minutes, Monday’s two-hour hearing consisted of testimony from two witnesses, including the officer who apprehended Rettke, and a powerpoint describing different types of offensive speech covered under the First Amendment.

Before either side made their arguments, everyone in the courtroom watched a 9-minute video, taken by ETSU student Grant Madison, that showed Rettke walking around barefooted carrying a burlap sack, imprinted with the Confederate flag and a marijuana leaf.

In the video, Rettke can be heard telling participants that he identifies as a “gorilla” shortly before ETSU public safety officers escort him to a nearby bench where his mask was removed.

ETSU Public Safety Officer Tim Anderson testified on Monday about those events before reading aloud a statement Rettke wrote about his intentions that day.

“In a foolish act of incredible risk, stupidity and increasingly dangerous behavior, I decided to put on a gorilla mask, overalls and store bananas in a burlap sack as a form of a sick joke towards the (Black Lives Matter) movement. I knew it would make people angry with my behavior, and I just wanted to record their reactions for my own personal humor,” Rettke wrote based on the statement Anderson read.

Rettke also wrote that “some preachers can say inflammatory remarks about fags going to hell and carrying inflammatory signs and not get in trouble. I’m not saying these two cases are similar. I would just like an explanation please.”

Based on Anderson’s testimony, Rettke began planning “how he could disrupt” the event a couple days beforehand.

ETSU student Jaylen Grimes, who participated in the Black Lives Matter event that day, also testified, saying he was “intimidated” and “nervous” because he couldn’t see what was in Rettke’s burlap sack.

“I remember him wrapping a rope around the banana and dangling it in my face and others faces. Then (he) tightened the rope to where the banana would open, but it was more of a symbolization, at least speaking for myself, of a hangman’s noose,” Grimes said.

When asked if Rettke said any words to him, Grimes said, “I remember being called monkey. And the n-word.”

Defense attorney Patrick Denton made the argument that Rettke’s symbolic speech, no matter how offensive, was covered under the First Amendment.

To solidify his point, Denton showed visual examples of some offensive speech covered under the First Amendment, including some extremely derogatory protest signs and the burning of an American flag. His first powerpoint slide stated, “Racism, what this case is NOT about.”

Denton also described a “heckler’s veto,” which occurs when an audience’s anticipated hostile reaction toward a speaker leads to government restricting speech.

Before making her ruling, Rice noted there is very little precedent or guidance from Tennessee courts or the state attorney general’s office regarding the civil rights intimidation law.

“Most of the guidance we have is from federal cases, (and) again, those particular cases don't address specifically the statute we're dealing with or the conduct that we have here,” Rice said.

“It is a fact-driven case that could be applied specifically to the elements in the (civil rights intimidation) statute on whether or not he actually violated it. So this case will survive the motion to dismiss and move on for a jury trial.”

Rettke’s next hearing is scheduled for June 8 at 1:30 p.m.

 

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Reported earlier:

The racial intimidation case will continue against a former East Tennessee State University student who wore a gorilla mask to a 2016 campus Black Lives Matter Rally while offering rope-tied bananas to participants.

Judge Lisa Rice denied defense attorney Patrick Denton’s motion to have the case against Tristan Rettke dismissed Monday in Washington County Criminal Court.

Rettke, of Murfreesboro, was an 18-year-old freshman at ETSU 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. The incident was recorded by numerous students and bystanders, who flooded social media with their footage, as well as a Johnson City Press reporter.

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 likened the rope’s ties to nooses. 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. Black Lives Matter demonstrations were occurring across the nation, and a group of ETSU students organized a peaceful rally in Borchuck Plaza outside the Sherrod Library. 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.

Denton filed the motion to dismiss the charges in July, but because of an officer’s personal leave, the hearing was delayed until Monday. 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.’ ”

With the motion denied, Rettke’s next court appearance was set for June 8.

Keep visiting JohnsonCityPress.com for details from Monday’s hearing.

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