Megan McArdle lays out a very good case in her column in the Washington Post on the killing of a woman in Minneapolis by an ICE agent and the subsequent feces-flinging contest. She opens with a warning about police states and follows that with this anecdote:
In 2012, a group of law professors published the results of an experiment they had run on 202 adults who were shown a video of protesters. Participants were given the text of a law regarding protests at sensitive facilities and asked to determine whether the police had been justified in shutting down the protest.
Half were told that the video showed pro-life demonstrators at an abortion clinic. The other half were told the protest occurred outside a college career-placement office where military recruiters were conducting interviews, and that the protesters were rallying against the military’s “don’t ask, don’t tell” policy for gay and lesbian service members. The results were depressing, if not entirely surprising.
People disposed to support abortion rights and oppose “don’t ask, don’t tell” thought the police were justified in clearing protesters away from the abortion clinic but not the recruitment office. Those whose views went the other way reached the opposite conclusion from the same facts.
She then contradicts her own point by trying to analyze the various videos of the events.
The only pertinent question under the law is what was the state of mind of the ICE officer who fired the shots? The killing was unmerciful and unjust but was it illegal? That is entirely dependent on the state of mind of the ICE officer and the only evidence we have of that is his own testimony. It cannot be inferred from videos.
That is why I have taken the position that I have: that the officer should be prosecuted to the full extent of the law, that he is likely to be convicted because the jury is composed of people who will behave just as the “202 adults” did, viewing the events through their own peculiar prisms rather than as “reasonable persons”, and that the conviction is likely to be overturned on appeal.
We have built a legal system that depends on rational actors, and a political culture that ensures they do not exist.
