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.
He should be tried, no where in Minnesota, where a fair trial is utterly impossible. The MN elected officials have a long sordid history of agitating (and paying) crowds to riot, as they did with this astroturfed crowd. But it is not obvious to me that MN has jurisdiction.
I don’t think that study is terribly relevant to whether the ICE officer committed a crime. (Orin Kerr recently re-posted the study, so he presumably disagrees)
The study created a fake protest out of a Westboro Baptist Church protest and counterprotest near Harvard. The footage made it appear that the protestors and counter protestors were one protesting group and the cops were on the other side. IOW, it was not a conventional scenario, it was designed to be ambiguous. And I think the point of the design was to analyze (or criticize) the jury’s role in deciding whether something is speech or conduct. The study found that political independents did not have the bias being studied.
If there is a trial, the videos will be shown to the jury; the attorneys will be aware of juror bias and try to keep those off the jury with unfavorable cultural markers. Unlike the study, the random/ curated members of the jury will have to decide something beyond a reasonable doubt, unanimously to convict.
If a prosecution is brought in state court, the defendant will remove the case to federal court under the Federal Officer Removal Statute. It’s unlikely that any case would be tried in state court.
The federal judge assigned to the case will initially be asked to find the officer immune from state prosecution and the judge will look at the state’s evidence and the evidence that the defendant might bring. The officer will either be found to be immune or the case will go to trial with a federal judge, federal jury and federal procedures, including federal law on transfer of venue.
Thank you, PD.
There are a number of papers looking at how juries treat the police and in reality they generally favor the police. In this case the video clearly shows the woman was not trying to run the guy over. She was turning away from him, she didnt peel out like you would expect and she didnt have the affect of someone out to kill. The ICE people could have driven around as she wasn’t blocking the street and it looks like she was waving people around. The officer should not have walked in front of the vehicle.
However, the video from in front of the car, noting the phone was in his left hand, makes it look as though its possible he may have thought it was coming towards him so I think there will be reasonable doubt. The one last part I am not sure about is that its clear he keeps shooting after she couldn’t possibly hit him. Not sure what the law says about that. (I cant see the video well enough but it also looks like the first shot is fired after he was already out of the way.)
Steve