The Minnesota ICE Videos and "They Saw A Protest"

One explanation for the different reactions.

Watching the different reactions to the Minnesota ICE videos brings to mind a study I wrote about here in 2011 that was published as a law review article, "They Saw a Protest."

In the study, individuals are shown a video of a protest at a building. Individuals are then asked to say, based on the video, whether the protesters violated a law that that prohibits intentionally interfering with, obstructing, intimidating, or threatening a person seeking to enter, exit, or remain lawfully on the premises.  The video looked like this:

Now here's the catch: There were actually two videos, not one. Each person was shown just one of the two.

The two videos were identical except that the designers of the study altered the videos to change what was being protested. One video was edited so that the protest was against military recruiters, and the second video was edited so that the protest is against an abortion clinic.

The two videos were substantively identical, but notice the very different culture wars resonance.  In the version of the protest against military recruiters, the protest was a "left" protest against a "right" policy.  In the version of the protest against the abortion clinic, the protest was a "right" protest against a "left" policy.  Again, it's actually the same protest. Participants in the study saw exactly the same thing video of the protest itself.  But the ideological stakes were 180 degrees apart.

The result?

Whether protesters were seen as guilty or innocent depended a lot on the ideology of the study participant doing the seeing.  When assessing a purely factual question—did the protesters engage in criminal threats?—people were a lot more likely to answer "yes" if their ideological worldview matched that of the policy protested, and a lot more likely to answer "no" if their ideological worldview matched that of the protesters.  Put another way, people watching the video tended to see what matched their worldview.  

The whole study is here.

Comments

[John 4]

“Whether protesters were seen as guilty or innocent depended a lot on the ideology of the study participant doing the seeing.”

We covered this in the Open Thread! How apropos.

[John F. Carr]

The strong reactions prompted a post by National Review today titled "a political culture full of arsonists."

[Sam Bankman-Fried]

We saw this in Floriduh where DuhSantis passed a law to make protesters blocking highways illegal and then a few days later Cuban protesters blocked a highway and DuhSantis did nothing about it. I can’t believe we’ve become so tribal when Trump’s asinine tariffs and LNG permit approvals and ICE raids are making everything more expensive for Republican small business owners…but then Bush sent Republicans off to slaughter Muslims while shipping their jobs to China and they voted for that!?! I just keep reminding myself that Republican thought leaders wanted DuhSantis to defeat Trump and he would have been much worse than Trump.

[dwb68]

Cognitive dissonance is simply too painful a condition. People prefer the warm comfort of their prior assumptions.

[Sarcastr0]

This is all true - facts are all too amenable to biases.

But facts still matter.

Critical thinking helps

All you can do is your best to untangle the true from the want-to-be-true.

Sometimes this means realizing you could be wrong. Sometimes this means deciding no, this one isn't a close call.

Too many here take that second option every single time.

Worse, others are purely transactional/relational. They're just here to fight for their side and don't actually care about facts.

Calling this lady a domestic terrorist, saying the officer is lucky to be alive, and talking about flooring the accelerator are not the statements of people who are here for the facts.

[Bubba Jones]

Good luck finding 12 jurors who can do that.

[y81]

Another good idea is to read a wide variety of opinions. In my case, due to my hostile and contrary nature, reading people with whom I basically agree fills me with doubts as the soundness of my position. Reading people whose position I disagree with tends to confirm me in the rightness of my position. All in all, I never get too firmly convinced of anything.

[Voize of Reazon]

How sure are you about that?

[DJK]

Well, the protests are in line with his policy preferences. So obviously he's very sure of that. But he's much smarter than you because he doesn't fall victim to cognitive biases. You'll just have to trust that his coming to the same conclusion that he would if he succumbed to such cognitive biases is not actually because he's succumbing to such cognitive biases. It's because he's smarter, has the facts on his side, thinks critically, and is the arbiter of truth. In other words, classic Sarcastr0.

[DDHarriman]

>Calling this lady a domestic terrorist, saying the officer is lucky to be alive, and talking about flooring the accelerator are not the statements of people who are here for the facts.

Notice how he ends with only finger pointing at one side. Clothing himself in an article about both sides, even. He still can't demonstrate integrity.

How gross. Morally. Just disgusting.

[Joe_dallas]

As previously stated - Andrew McCarthy at national review has one of the best fair assessments of the facts and the law.

[Dr. Ed 2]

The term domestic terrorist ceased to have any meeting whatsoever when team Brandon applied it to everyone whom they did not like.

Did you see the video of the eight holes throwing things at the ice vehicle that was merely driving down the street? At what point would you consider the terrorism label to be justified?

[David Nieporent]

The term domestic terrorist ceased to have any meeting whatsoever when team Brandon applied it to everyone whom they did not like.

This, of course, never happened. It is part of the MAGA catechism that loons who ranted at school board meetings were treated as domestic terrorists, but just like the things in the other catechism, it's nothing more than a myth.

[DDHarriman]

Hey remember all those leaked documents that prove you are lying?

[David Nieporent]

No.

[not guilty]

Confirmation bias can be a pernicious thing. That is why it is important to support polemic comments with relevant legal authorities and original source materials.

[DDHarriman]

*wrong*

[not guilty]

Why do you dispute that it is important to support polemic comments with relevant legal authorities and original source materials, DDH?

Other than because you don't know how to do so and seem to enjoy simply making up shit?

[DDHarriman]

I posted a comment in the wrong spot

My bad. I didn't mean to come across as disputing your comment.

Apologies.

[not guilty]

The most relevant federal statute here, 18 U.S.C. § 111(a)(1), provides:

(a) In General.—Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

The adjective "forcibly" is perhaps the most crucial word here. The pattern jury instructions for the Eleventh Circuit provides:

A “forcible assault” is an intentional threat or attempt to cause serious bodily injury when the ability to do so is apparent and immediate. It includes any intentional display of force that would cause a reasonable person to expect immediate and serious bodily harm or death.

https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatternJuryInstructionsRevisedJUN2015.pdf

I surmise that that is why a jury in the District of Columbia acquitted Sean C. Dunn, on a misdemeanor charge of assault with a deli weapon.

[IANNAL]

"assault with a deli weapon"

Ha! (whether you made that up yourself or not, it's worth a laugh)

[Lee Moore]

Your surmise is doubtful. Possibly based on leaping off to the 11th Circuit when the deli weapon guy was tried in DC. Mr Google advises me that the DC judge concluded in his jury instructions that touching that a reasonable person would find offensive was an “injury” and so a forcible assault.

So if your surmise is correct the DC jury was disregarding the judge’s instructions as to the law.

[Lee Moore]

Does “forcibly” qualify just “assaults” or each of the following verbs ? It’s interesting that the 11th Circuit includes threats within forcible assaults as it seems to leave little left for intimidated to do, unless intimidates doesn’t have to be forcible.

[Moderation4ever]

Anyone who has been to a sporting event that uses instant replay will see fans react to close calls by supporting the result that is best for their team. That is why the referee make the call when reviewing the tapes. The Minnesota shooting needs a referee's call not Christy Noam's take.

[Michael P]

Fortunately we have a good referee in the person of our DHS Secretary!

[Orin S. Kerr]

If you read the 1st page of the article I linked to, it's building on an earlier study that was about a close call in a college football game—with students from the two schools viewing the facts very differently.

[Vryedni]

Tell me which schools they were and I'll be happy to tell you which one was right.

[Dr. Ed 2]

Three words:

Event
Data
Recorder

The airbag deployed, so there is a factual computer record of everything that car was doing before it hit that pole. Percentage brake, percentage accelerator, direction of the wheels, and when they turned, even if she’s wearing her seatbelt or not — all of that is in cold, digital data. It’s not a judgment call…

[Reallynotbob]

Cool. So the feds will turn that over to state police for investigation, then, ya? It's digital, so it can be a copy while OIG and FBI investigate also.

[CindyF]

Alpha news has obtained a copy of the agent's bodycam video.

https://x.com/AlphaNews

[Brett Bellmore]

And, yeah, he did get hit.

[Scooter]

Or Keith Ellison
Or Jacob Frey
Or Tim Walz.

[Botaglove]

This is just people pretending something is confused or incapable of resolution and we should just throw up our hands when in fact it's actually pretty simple.

The officer leaned in to shoot through the corner of a windshield as the car turne away from him and then shot twice more through an open window.

This is not Rashomon. I mean you can decide that officers are allowed to kill people if subjectively they feel a second of apprehension and make that your rule of law. But don't pretend what happened might not have happened.

And don't overlook the full out blatant lying of Trump, Vance and Noem that the car rammed into the officer and ran him over and he was so hurt as to have to go to a hospital.

The final command of the Party was that you don't believe your eyes.

[Absaroka]

"The final command of the Party was that you don't believe your eyes."

The point of the study is ... that is true of both parties.

(Well, all parties. Partisan Libertarians see things through a libertarian lens, Green Party partisans see things through a Green Party Lens, the Legal Marijuana Now Party views things...etc, etc)

[Voize of Reazon]

Sure, bias colors vision.
Does that mean the stylishly cynical commenters here are right, we should give up, objective truth is a fiction, let's all just kill ourselves (maybe they don't go quite that far) - or should we struggle on as best we can?

[Absaroka]

"should we struggle on as best we can?"

We absolutely should. But when your view is 'the other side are lying weasels', you are probably missing the lying weasels on your side.

[y81]

We should struggle on as best we can. It would be nice if the Conspirators were also motivated by the desire to find the truth above all, but in the meantime we should struggle on without (and sometimes against) them.

[AmosArch]

The officer leaned in to shoot through the corner of a windshield as the car turne away from him and then shot twice more through an open window.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

In other words the car was already moving when the shots were fired.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
This is not Rashomon. I mean you can decide that officers are allowed to kill people if subjectively they feel a second of apprehension and make that your rule of law. But don't pretend what happened might not have happened.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

they are if an officer is in the direct path of the car movement which an officer was that you failed to mention.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
The final command of the Party was that you don't believe your eyes.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

ironic coming from you.

[Reallynotbob]

Yeah, but "the car was moving" is not the standard. The officers are expected by their training and in the law to avoid putting themselves and others in harm's way when feasible. The intent of the officer firing the gun has to be a reasonable one measured against objective facts--his pure subjective state of mind is not the test.

He fired at a car that he could see was trying to avoid him and was moving slower than 5 miles per hour. He had positioned himself in a place where avoiding the vehicle was easy to do. Even the government has not alleged Good had committed a felony or threatened violence, nor was she under arrest.

[Dr. Ed 2]

Do not confuse the ice man who reportedly shot with a second iceman who may have only drawn his weapon.

If you hear, gunshots, is it not prudent to draw your weapon with resumption that you may need to be shooting as well?

[The Margrave of Azilia]

Did someone mention ICE?

https://www.youtube.com/watch?v=rog8ou-ZepE

[MaddogEngineer]

I'm confused by what any of this blog entry has to do with a person refusing a federal agent's order to exit her vehicle.

Whether there was a protest going on or not, the vehicle in question was judged by agents to be interfering with their operation. And by all other available evidence, the driver was not there by accident.

(Because I assume, given current events, when we're talking about Minnesota ICE enforcement, it's related to this incident.)

[Bubba Jones]

FFS

[Scooter]

Yeah, facts are so inconvenient to your preferred narrative.

[Orin S. Kerr]

Maddog, try switching from the narrow factual question here to the broader issue of how people determine what the facts are. It's about the broader issue.

[Dr. Ed 2]

Orin, that is why I ask what does the EDR say?

15 years ago, Massachusetts lieutenant governor Tim “Crash” Murray wrecked his state owed car under questionable circumstances. That had a more primitive EDR in it, and amongst other things, it came out he was traveling 107 miles an hour when he hit a solid ledge. Personally, I think it was a suicide attempt in that had it not been built as a state police car with a full cage inside and had he not hit at the angle he did and spun, he likely would’ve died.

The EDR also showed that he left the road at full throttle and accelerated through through slush and muddy ground.

This is not speculation, there was a documented timeline. And there will be in this case as well and I say “let’s see what that says.”

[CharlieG]

The facts are what the videos show. This isn't an interpretation issue. The videos show an objective reality where we can see everyone's actions and know who they are and what they're doing. These videos aren't up for interpretation because they show the exact reality as it happened. A lady refused lawful orders, she drove her care into the officer standing in front of her vehicle, the officer fired his weapon while being hit by the car. That is reality, not up to interpretation.

[David Nieporent]

The video does not show any lawful orders, does not show her driving her car into anyone, and does not show the murder happening "while being hit by" anything. And, of course, your comment completely misses the point anyway, since seeing what happened doesn't tell why it happened or what people were thinking when it happened.

[Brett Bellmore]

Once again demonstrating that your schtick is denying the obvious and documented.

[Scooter]

Who are you going to believe? David, or your own lying eyes?

[santamonica811]

Yes, and then she drove PAST him, he was uninjured (though certainly startled or frightened), and he then chose to fire two more times while she was passing and he was on the side of the care, and while absolutely in zero additional danger.

You forgot to include those undisputed facts to your narrative, oddly.

[Social Justice is neither]

There is some interpretation to be had but your statements of fact are just that. What Leftists are doing is rationalizing, diminishing and excusing her behavior and more generally as Kerr wants to focus on, any and all behavior by fellow Leftists. There is no crime or atrocity by Leftists that they will not excuse or deflect responsibility or blame.

[Harry S]

Tennessee v Garner doesn’t make refusal to exit a car at a ICE officer’s command grounds for the use of deadly force last time I checked. The New York Times, Washington Post and Bellingcat has a frame by frame analysis of what happened and it doesn’t support what Trump, Vance and Noem are saying. The shooting officer’s feet were out of the path of the vehicle when his first shot went through the window shield and he fired twice more through the driver’s side window. It’s a terrible idea to fire into a driver when you are in front of a car, since that puts you at even greater risk and CBP management have provided written guidance warning officers against doing this is the past. At any rate, labeling the deceased victim of this shooting a terrorist and lying about whether the shooting officer was injured are both contemptible acts.

[Joe_dallas]

I read that NYT frame by frame analysis - Its a joke.

Anyone citing that frame by frame analysis as if it is objective reality is an idiot

[Harry S]

I can imagine this from the perspective of a frightened officer who reacts badly when scared at a motorist whose car is moving and might hit him and a frightened passenger responding to contradictory orders being shouted at her by officers—move the car, get out of the car—who is just trying to move out of the way without hitting anyone.

For this woman, who has never had more than a parking ticket and is being confronted by angry and scared officers, to end up gunned down is terrible. A responsible President, Vice President and DHS Director would want to look into it all and withhold judgment and not smear this deceased young woman. Sadly, that’s not what we have.

[Brett Bellmore]

"Tennessee v Garner doesn’t make refusal to exit a car at a ICE officer’s command grounds for the use of deadly force last time I checked."

True, and if she had just sat there with the car in "park" refusing to exit, she might have ended up being manhandled, but she wouldn't have been shot.

[Reallynotbob]

That's not a great assumption, actually. (1) the officer asking her to move the car could interpret that as an escalation; (2) sitting in one's vehicle has gotten lots of motorists shot when the officer standing nearby decided the driver made a "furtive gesture"; and (3) this is Minneapolis where the public is keenly aware "manhandling" arrestees can be fatal.

[Social Justice is neither]

How about attempted murder? Because that's what intentionally running over someone is.

Now, is that frame by frame analysis in real time or just Leftists excusing the acts of a criminal? The warped frame you use is just a lie to allow you to justify violence and an escape from consequences.

[Reallynotbob]

Officer: "She startled me so I shot her."

[kimoser22]

I mean this probably is the truth of the matter, dude had been dragged by someone previously while trying to drag them out of a car and decided next time, I'm in a similar circumstance, I'm shooting them, whose going to stop me (probably correct). Lady started moving forwards disobeying their commands (increasing anger) the car moving closer to hit startled him and he lizard brained and pulled the trigger as he had primed his brain to do while processing his previous experience. why was his service weapon out to begin with?

[David Nieporent]

Intentionally running over someone at a sufficient rate of speed might well be attempted murder. That didn't happen here, of course. She didn't run him over at all, and there's certainly not evidence at this point to suggest she did anything intentionally besides try to leave when the other agent grabbed at her door.

One person did intentionally kill someone, but it wasn't her.

[AmosArch]

Its a matter of perspective whether you can run over LEO when they ask you to get out.

[CharlieG]

It's not. The videos show objective reality, not what someone is saying is going on. This isn't up for interpretation. She hit an officer with her car and he fired his weapon in self-defense while being hit by her car.

[Vryedni]

Lol.

[Armchair]

One item that helps issues like this is the use of hypothetical situations where the biases aren't already known. For example, let's look at the following questions in a hypothetical situation and see what the responses to A1, B1, B2, and C1 are from the commentariat.

A. A police officer corners an individual in an alley and demands they halt. The individual needs to get by the police officer to escape. In order to help accomplish this, the individual pulls out a handgun and fires towards the officer.

A1. Can the police officer respond with deadly force? Why or why not?

B. The police officer has the option in the moment to either draw their gun and fire, then dodge behind a nearby wall, or dodge behind a wall, then potentially return fire.

B1. Are there any circumstances in which the police officer would be better served to draw and return fire, before dodging?

B2. If the police officer dodges behind a wall, they are momentarily out of danger. Can they still respond with deadly force? Why or why not?

C. The individual manages to rush the officer and get past them, still holding the handgun. They are not firing at the officer anymore.

C1. Can the officer use deadly force to stop them, even if they are not currently firing at the officer? Why or why not?

[Dr. Ed 2]

There was a case in Massachusetts a while back where a perp killed a woman inside her house with a stray round. Memory is that he killed the officer with a rock and stolen his gun with this being the source of the round.

There is a public safety aspect to violent fugitives being at large.

[iowauniguy]

The confirmation bias machine has produced more confirmation bias

[Scott Fruehwald]

See my book Understanding and Overcoming Cognitive Biases For Lawyers And Law Students: Becoming a Better Lawyer Through Cognitive Science (2018). https://www.amazon.com/exec/obidos/ASIN/1985130130/reasonmagazinea-20/

[Kleppe]

Next in Prof Kerr's series: "Water Wet" and "Grass Green." Fascinating stuff!

[freedomwriter]

Ashli Babbit did not defy police orders, did not put herself in a position to be killed. Not her fault she was murdered.
Renee Good defied police orders, put herself in a position to be killed. HER fault she was murdered.

[Sarcastr0]

Ok freedomwriter

[David Nieporent]

I assume this was a parody.

[Michael P]

This assumption appears to be wrong, like most of your comments lately.

[ah....Clem]

https://en.wikipedia.org/wiki/Poe's_law

[kimoser22]

I assume so as well.

[Roger S]

In this case, I think most people analyzed the video before learning that the driver was a lesbian.

[Brett Bellmore]

Given that she had children, I'd assume bisexual, not lesbian.

[Roger S]

News reports say that she lived with her "wife".

[ah....Clem]

This is making the rounds today. Don't know who this alleged attorney is, but here it is. Worth a read:

By Attorney Honey Leech:
There seems to be a lot of Keyboard attorneys online today. So, as an actual attorney, I'd like to cite actual law. The ICE officer in MN violated both protocol and case law. 1) officers are not allowed to fire into a moving vehicle 2) lethal force is not allowed to prevent someone from fleeing 3) case law is clear, an officer cannot intentionally place himself in front of a vehicle and then allege self defense

At best, this officer acted with a reckless disregard for public safety and is guilty of negligent homicide. Federal agents do not have blanket immunity from state laws or criminal prosecution. They can be prosecuted by state authorities for violating state laws if their actions were unauthorized, unlawful, or unreasonable, even if they were on duty.

The concept governing this is called Supremacy Clause immunity. Federal agents are generally immune from state prosecution only if their actions were:
Authorized under federal law; and
"Necessary and proper" to fulfill their federal duties.

If a federal agent is charged in state court, they can petition to have their case "removed" to federal court. In federal court, the judge would then determine whether the agent's actions met the "necessary and proper" standard. If the court finds the agent was acting within the reasonable confines of their duties, the state charges will be dismissed. If not, the state prosecution can proceed in federal court, applying state substantive law. It is unlikely any judge would find his behavior necessary and reasonable. The mere fact that no other officer present unholstered their weapon and appear shocked he fired towards them reinforces that fact.

Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)
Seventh Circuit – foundational caseFacts:
Officer stepped in front of a slowly moving vehicle and then shot the driver, claiming fear for his life.
Holding (paraphrased):
“An officer may not unreasonably create a physically threatening situation and then use deadly force to escape it.”

Adams v. Speers, 473 F.3d 989 (9th Cir. 2007) Ninth Circuit
Facts:
Officer jumped in front of a vehicle during a stop and then fired.
Holding:
An officer cannot provoke a confrontation and then rely on the danger they created to justify deadly force.
Key language:
The court emphasized that reasonableness includes the officer’s own tactical decisions leading up to the shooting.

Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001)
Eighth Circuit
Key point:
The court rejected summary judgment for officers where evidence showed the officer moved into the vehicle’s path, creating the perceived threat.

Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999)
Third Circuit
Facts:
Off-duty officer shot a fleeing driver.
Holding:
The court stressed that pre-seizure conduct matters and that officers cannot rely solely on the “split second” framing if their own actions escalated the situation.
Kirby v. Duva, 530 F.3d 475 (6th Cir. 2008)
Holding:
Deadly force may be unconstitutional where:
The officer fired into a moving vehicle
The officer could have stepped aside
The threat was self-created
The Sixth Circuit explicitly rejected the idea that a moving car automatically justifies gunfire.

Adams v. Speers, 473 F.3d 989 (9th Cir. 2007)
Holding:
An officer may not intentionally place himself in danger and then use deadly force to neutralize the danger he created — including firing into a vehicle.
The Ninth Circuit emphasized tactical disengagement as the constitutional expectation.
Training & Policy Alignment (Courts Care About This)
Many courts note that modern police training instructs:
Do not fire into moving vehicles
Do not use deadly force to stop a fleeing car
Disengage and contain instead
Courts treat violations of training as evidence of unreasonableness, even if not dispositive.

Copied and pasted.

[Roger S]

These might apply if the court finds that the officer created the danger himself.

[Harry S]

In the video he shot, he’s circling around her car twice with his video camera on like a tourist, not law enforcement and then strips his camera while near her passenger side bumper and starts firing. It sure looks like he’s in no peril and if he was in any, he put himself there. I smell liability for sure (at least civil liability).

[CindyF]

Alpha news has received the video from the agent's body cam.

https://x.com/AlphaNews

[Randal]

Disappointing. You can't really see anything at all in this video. The camera jerks, but is that just him dodging? I think DN's point remains the best take: ICE guy was somewhere between barely hit and barely missed, a distinction that doesn't really matter.

Poor doggy, is the main new takeaway. Well, that and, Trump trying to make Renee the new face of "domestic terrorism" is going to backfire. If smiling white lady chatting with an officer with her dog and her SUV is a domestic terrorist, nobody's safe.