S2N

It’d be next to impossible for there to be a criminal case even ignoring the current administration. That standard is incredibly high and very hard to prove. Civil is almost always the only thing that matters in these cases (and also the only thing that really ever changes government policy; since criminal cases are usually only brought when the LEO is acting outside of policy, but civil can be brought for in-policy shootings by arguing it’s unconstitutional.) We’ll see how it shakes out. My last comment on this theme: I posted a few links to court cases around this: the 9th circuit held that three plus volleys over 6 seconds were three uses of force that needed to be analyzed separately and SCOTUS very recently overruled the 5th circuit standard that only required an analysis in the moment of force/threat (which had been defined as 2 seconds), and required a totality of the facts review. The fact that this was all within two seconds doesn’t necessarily make it one use of force or reasonable (nor does the fact it was on the side make it unreasonable.) My entire point over the last few days is we don’t have enough of the facts to determine what the result here will be. Most of the people here have been on the ICE side, so I’ve been arguing caution on that, but I’d equally argue we don’t have enough facts to make it clear he acted incorrectly or there was a clear case of anything. Based on what we do know, I see the potential for a civil case, but we’re far from having all the facts and anything anyone says (including me) is pure speculation on either side. Anyway — more heat than light at this point and like and appreciate all of you guys, so disengaging. Anyone who is curious as to my thoughts can read all I’ve already posted. Thanks as always to everyone here for the engaging discussion

That was my interpretation of when people kept saying you shoot until neutralized (or something similar) for justifying shooting on the side. I didn’t think I was adding anything new. If you prefer, happy to have it framed as “My judgement as to if I need to keep shooting to neutralize the threat after it has passed me is reasonable.” To me they’re identical statements, but if they’re not to others, don’t want to fight in semantics. I’ve read a decent amount of legal analysis from real lawyers on the topic. I try to avoid YouTube experts on any topic, since they usually oversimplify complex topics for views.

If you run me over and then I pull out a gun and shoot you because I claim to be afraid you might do it again, I’ve opened myself up to a civil case, because my judgment in those circumstances are open to question as to if a reasonable observer in my circumstances would have had an objective fear of life and continued shooting. Obviously I’m not a cop, but the same idea applies. Civil law tends to have a lot more nuance on the question of culpability than criminal law. Anyway, I’m not going to say more on the question — we’re on the more heat than light point and anyone who wants to come by after can read the volumes I’ve already written

It’s not beyond reasonable doubt. That’s not the civil standard for anything, but yes, you have to be able to overcome a summary judgement and Qualified Immunity in order for it to reach a jury. Basically you have to have a triable question of fact. Judge will decide everything on the law and undisputed facts/relevant factual standard for assessing pre-trial motions. The standard I quoted would also be what a judge would be using when doing the analysis. There’s sufficient case law about shooting into fleeing cars it could likely get to a jury, imo, but we’ll see. Theres a lot more to come out and I don’t think this is cut or dry on either side.

A claim that a law enforcement officer used excessive force during a stop or arrest is analyzed under the Fourth Amendment, which re- quires that the force deployed be objectively reasonable from “the per- spective of a reasonable officer at the scene. The inquiry into the reasonableness of police force requires analyzing the “totality of the circumstances.” That analysis demands “careful attention to the facts and circumstances” relating to the incident. Barnes v. Felix I omitted the internal citations. This is the most current civil law standard. The ruling was specifically overruling a 5th circuit analysis that used “moment of threat” rather than “totality of the circumstances.” Obviously the specifics of that case are going to be different here. They all are. Its not what he thought, but what a reasonable LEO would have thought, and there’s disagreement as to that. I posted a WaPo article earlier that had several former officers discussing whether it was clean and critiquing some of the actions. That all goes to the question of fact (what a reasonable LEO would do) and would be decided by a civil jury because reasonable people can disagree in good faith.

That’s not the law (at least from a civil liability side; criminal is more complex.) People can have irrational fear for their lives. Most of the cases where the government loses and is held liable are LEOs who in good faith feared for their lives where a rational observer wouldn’t have.

I don’t see how any of that is relevant to the question of if what he did creates a civil liability for the government. LEOs can make legally incorrect split second decisions that make the government civilly liable even when they’re afraid for their life. It’s virtually certain there’s not going to be any criminal or administrative action taken, so what matters is if there’s enough for it to go to a civil trial. The other question is if it eventually leads to reforms within ICE. The best take I read on it today was in the The Washington Post from a former cop who works at a think tank now: Sometimes these incidents can end up being ‘lawful but awful’ if the legal standard is met but the tactics look avoidable in hindsight

Yeah, these are the details that matter. Will be following how it plays out.

As a reasonable non-law enforcement observer, to me it looked like the car was swerving uncontrollably after the first shot because she’d been knocked out and he kept firing. Whether that counts as incapacitated is a question of fact, not law, and I don’t have all the facts. No one does. Which is what I keep trying to point out. The case law is a lot more complicated than Woman drives car towards LEO, LEO keeps shooting until he thinks he’s safe again, and since this is likely to end up as a civil case against DHS and nothing will come of it for him, the facts and specifics really matter and will determine what happens in the courts.

The real question.

You don’t know that. It’s your guess, but you don’t know. Anyway; my point wasn’t that he’s liable. My point was that courts can and do analyze multiple shots over a short period as separate instances of force.

And we currently don’t have video of how she was when she was inside the car. We don’t know if she was incapacitated.

Sure; I never claimed otherwise. The point of that ruling (in the 9th Circuit) was when there’s a question of fact as to if continued shooting was justified, it’s for a jury to analyze. The question of fact here would be whether or not when the officer was on the side of the car, the suspect was incapacitated. A reasonable observer is going to see two “volleys” in this case. The first shot and the second round. The Estate could argue that to a judge.

Estate of Hernandez v. City of Los Angeles Analyzed three different uses of force on the same suspect. Held that the first two were justified but whether or not the third was justified was a matter of fact for a jury to decide because it was a matter of established law that continuing to shoot an incapacitated suspect violates the Fourth Amendment. 9th circuit, so not applicable to Minnesota, but courts can and do analyze shots as distinct instances (in the case the court analyzed per “volley” of shots) Edit to add: for context, the shooting took place over six seconds (per the PDF opinion) and the Court of Appeals analyzed each volley of the six second encounter.

Federal courts have analyzed per round of shots fired in civil cases of police conduct in the past. It wouldn’t be guilty or not guilty in a criminal sense, but a court could (and probably would given the facts of this case) analyze whether the shot in front of the car was justified, and then analyze whether the shots on the side were. A criminal court more than anything it depends on how the judge instructs the jury and what they’re tasked with finding. A court could instruct the jury to follow the same analysis mentioned above. It’d still be one count, but they could have separate questions to answer before finding a verdict. It could also be instructed to conclude as a whole. But there’s also no way this ever goes criminal no matter what the facts are given the current climate.