The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Zaprudering The Minneapolis ICE Video
I'll admit a guilty pleasure. I enjoy watching police dash-cam and body-cam videos on YouTube. More often than not, these videos begin during routine traffic stops but quickly escalate. Once the suspects feels cornered, they will usually take flight. Sometimes they will jump out of the vehicle and flee on foot. Other times, they will take the car out of park, put it into drive, and slam the accelerator. In rare cases, the driver will start driving while the police officer is next to the car, or even leaning into the window. Officers have been seriously injured. These two videos came up with a quick search.
Different law enforcement agencies have different policies with regard to the use of force. As I recall, some police departments allow officers to open fire on a vehicle that is being used as a deadly weapon. Other departments only permit high speed chases. Other departments will just allow the vehicle to drive away.
This background brings me to the shooting yesterday in Minneapolis. I've watch the video from the New York Times over and over again.
The commentators focus on the fact that the driver's wheel was turned to the right, suggesting that she was trying to drive away from the ICE agents. When given a lawful order to stop, it is usually not advised to drive away from law enforcement. But let's put that bit aside for now.
The entire incident lasted a few seconds. Is there any reason to think the agent saw which way the wheels were facing before he opened fire? I am doubtful. I had to watch the video with a frame-by-frame breakdown to figure out the chronology, and direction of the wheels. Think about it this way. The agent would have to simultaneously keep his eyes focused on the wheels (low) and the driver (high). Is it even possible to see both?
To use a sports analogy, it is extremely difficult for a First Base umpire to simultaneously look at both the base (low) and the glove (high). The New York Times discussed this tough job:
Instead, the call is most often made with the two significant elements of the play — the ball in the fielder's glove and the runner's foot on the base — at some distance from each other, far enough apart that the umpire cannot keep both in his line of vision. From the earliest days of their training, umpires are taught how to cope with this: on most infield ground balls, establish a position 15 to 18 feet from the first-base bag and at a right angle to the perceived path of a true throw.
For many plays, where it its not possible to see both, the umpires will watch the bag to see when the reader touches, and listen for the pop when the ball reaches the glove. And even then, well-trained umpires routinely make errors with close plays at first--especially in a noisy stadium where you can't hear the pop. Instant replay exists now to remedy those errors.
The ICE agent in this case likely could not see both the direction of the wheels and the driver. He was only standing a few inches away. He lacked the distance and vantage point to observe both. And we know he was looking at the driver based on where he aimed his gun.
Now the agent likely saw the driver shift the car into drive. For sure, the driver did not keep her hands off the wheel, and would have had to reach for the gear-shift. Indeed, you can see the reverse lights in the back turn off shortly before the officer drew his weapon.
If the agent sees a car a few inches away from him shift into drive, is it reasonable to think he might be a target? In the past, ICE agents have been hit with cars. Would this background be relevant?
Also, much has been made of the fact that the officer did not actually get hit. As I watch the video, he quickly jumped out of the way to avoid contact. This is akin to a baseball pitcher who throws at a batter, but the batter jumps away to avoid contact. Pitchers can still be ejected when there is an intent to plunk the batter that proves unsuccessful.
I realize how volatile this situation is, but we should resist Zaprudering the video, especially where a decision had to be made with imperfect knowledge in a split second.
