How soon?

[Lance Payette]

This whole thread belongs on the U. S. Politics thread, but having now watched the ICE Agent's cellphone video on CNN, I must say, in my official capacity as a Retired Former Lawyer, that ICE Agent Ross is, or at least should be, in a world of trouble.

Here is the USDOJ policy on the use of deadly force: https://www.justice.gov/jm/1-16000-department-justice-policy-use-force.

Specifically concerning vehicles, it says:

Firearms may not be discharged solely to disable moving vehicles. Specifically, firearms may not be discharged at a moving vehicle unless: (1) a person in the vehicle is threatening the officer or another person with deadly force by means other than the vehicle; or (2) the vehicle is operated in a manner that threatens to cause death or serious physical injury to the officer or others, and no other objectively reasonable means of defense appear to exist, which includes moving out of the path of the vehicle. Firearms may not be discharged from a moving vehicle except in exigent circumstances. In these situations, an officer must have an articulable reason for this use of deadly force.

The interactions between Renee and Rebecca Good and the ICE Agents immediately preceding the incident strike me as about as non-threatening as they could be. I literally cannot believe that this escalated into Renee being shot point-blank seconds later.

The over-the-top knee-jerk efforts of Administration officials to justify this, and the over-the-top comments at the FOX website, just show how fragmented and rage-filled this country has become. When the best you can do right off the bat is J. D. Vance screeching about "Absolute immunity!" (no way, Jose), you know rationality has left the building. The TDS Cult and the Trump Cult are literally at war, with the rest of us inceasingly caught in the middle.

Agent Ross had better find a whiz-bang lawyer and sympathetic jury if he hopes to tap dance his way out of those videos and that DOJ policy.

[Steve M. Galbraith]

This whole thread belongs on the U. S. Politics thread, but having now watched the ICE Agent's cellphone video on CNN, I must say, in my official capacity as a Retired Former Lawyer, that ICE Agent Ross is, or at least should be, in a world of trouble.

Here is the USDOJ policy on the use of deadly force: https://www.justice.gov/jm/1-16000-department-justice-policy-use-force.

Specifically concerning vehicles, it says:

Firearms may not be discharged solely to disable moving vehicles. Specifically, firearms may not be discharged at a moving vehicle unless: (1) a person in the vehicle is threatening the officer or another person with deadly force by means other than the vehicle; or (2) the vehicle is operated in a manner that threatens to cause death or serious physical injury to the officer or others, and no other objectively reasonable means of defense appear to exist, which includes moving out of the path of the vehicle. Firearms may not be discharged from a moving vehicle except in exigent circumstances. In these situations, an officer must have an articulable reason for this use of deadly force.

The interactions between Renee and Rebecca Good and the ICE Agents immediately preceding the incident strike me as about as non-threatening as they could be. I literally cannot believe that this escalated into Renee being shot point-blank seconds later.

The over-the-top knee-jerk efforts of Administration officials to justify this, and the over-the-top comments at the FOX website, just show how fragmented and rage-filled this country has become. When the best you can do right off the bat is J. D. Vance screeching about "Absolute immunity!" (no way, Jose), you know rationality has left the building. The TDS Cult and the Trump Cult are literally at war, with the rest of us inceasingly caught in the middle.

Agent Ross had better find a whiz-bang lawyer and sympathetic jury if he hopes to tap dance his way out of those videos and that DOJ policy.

How can he be prosecuted for violating DOJ policy? A policy is not a law. If he's violating DOJ policy then he can be disciplined by DOJ. But what *law* did he violate? Isn't that the question? You're citing the policy but not the law.

The policy is, as I read it, based largely on a Supreme Court decision, Graham vs. Connor, that used a "reasonable" standard to determine whether the action was lawful or not. That's the law we need to look at. So the question (for me) then is whether or not, in that moment, the officer reasonably feared for his life. And if he did reasonably fear for his life, then unfortunately, he was justified in opening fire and firing all three shots.

To put it otherwise: Was his fear of harm reasonable or not? He probably violated DOJ policy. But did he violate the law? It's not clear to me he did.

Question: Did Ross interact with the driver? It appears he didn't. As you point out, the interactions between the parties before the shooting. Whether the agents escalated matters (seems to me they handled it poorly) or the driver? Lots of things we don't yet know. And really, how many times have we had where what we thought we knew on Day #1 turned upside down on Day #2? It seems to always happen.

Graham is here: https://supreme.justia.com/cases/federal/us/490/386/

[Lance Payette]

Obviously, he will not be prosecuted for violating a USDOJ policy. Employer's policies are typically introduced into evidence in civil tort cases to show the standard that the employee should have known about and followed. There is no doubt that the policy will be front-and-center in the massive tort action that Ross will inevitably be facing and almost surely losing (IMO). Due to the Federal Tort Claims Act, claims against the federal government are a world unto themselves, so I'm not certain who the other potential defendants might be or what role the policy would play. In a routine civil case, a policy like this would be used against the employer to support a claim of failure to adequately train or something along those lines. It's always nice (for the plaintiff!) to have a policy like this because the employer has locked itself into what the standard of reasonableness should be. I used to ALWAYS counsel my government clients, "Don't adopt pie-in-the-sky policies that 'sound good' because they are going to bite you in the ass in a tort case when you and your employees don't live up to them, as you inevitably won't."

The Graham case you cite was a civil tort case - a "Section 1983" case because that's the federal statute under which these cases are always brought - against a municpal police officer. Not surprisingly, the Supreme Court held that the applicable standard, as in virtually all tort cases except those involving strict liability and gross negligence, is whether or not the officer's actions were "objectively reasonable," not the officer's subjective intention. This is just pretty much the "hypothetical reasonable person" standard by which all tort cases are governed except those where the standard is strict liability or gross negligence.

Federal criminal charges in cases of this type are typically brought under the criminal statute for deprivation of civil rights ("Section 242"), it being the criminal counterpart to Section 1983. State charges typically would be homicide (manslaughter or murder). Under Section 242, the standard is completely different and much higher than Graham. The prosecution must show that the officer "willfully" (i.e., with specific intent) acted to deprive the victim of a specific federally protected right. In a state homicide case, of course, the issue is simply whether the officer's actions qualified as an unjustified killing with the requisite intent.

At both the state and federal levels, officers do typically enjoy some level of immunity for actions taken within the scope of their employment. Typically, this is "qualified" immunity, not "absolute" immunity. This is always civil immunity, not criminal immunity. The qualified immunity protects the officer against "negligence" but not "gross negligence." There is no clear distinction between negligence and gross negligence - it's largely in the eye of the beholder - so this protection is a bit illusory. (Gross negligence is basically "recklessness.") The only criminal immunity I know of is the immunity of federal officers against state criminal prosecution for acts committed in the course of their federal duties. A federal judge determines whether the officer's acts were "reasonable" and necessary to carry out his federal duties. If not, the officer can be prosecuted for state crimes.

Now you know why lawyers are paid the big bucks. Regrettably, I'm going to have to charge you $1,423 just for this post.

I guess we all see what we want to see, but after having seen Renee and Rebecca in action, if Agent Ross actually feared for his life in those circumstances he should be a security guard at Miss Muffy's Daycare Center because he isn't cut out for anything more serious.

[Tom Graves]

How can he be prosecuted for violating DOJ policy? A policy is not a law. If he's violating DOJ policy then he can be disciplined by DOJ. But what *law* did he violate? Isn't that the question? You're citing the policy but not the law.

The policy is, as I read it, based largely on a Supreme Court decision, Graham vs. Connor, that used a "reasonable" standard to determine whether the action was lawful or not. That's the law we need to look at. So the question (for me) then is whether or not, in that moment, the officer reasonably feared for his life. And if he did reasonably fear for his life, then unfortunately, he was justified in opening fire and firing all three shots.

To put it otherwise: Was his fear of harm reasonable or not? He probably violated DOJ policy. But did he violate the law? It's not clear to me he did.

Question: Did Ross interact with the driver? It appears he didn't. As you point out, the interactions between the parties before the shooting. Whether the agents escalated matters (seems to me they handled it poorly) or the driver? Lots of things we don't yet know. And really, how many times have we had where what we thought we knew on Day #1 turned upside down on Day #2? It seems to always happen.

Graham is here: https://supreme.justia.com/cases/federal/us/490/386/

Given the fact that:

1) she was surrounded by masked armed men

2) whose vehicles were blocking her vehicle (even though, apparently wanting to turn left, she had signaled to the driver of the second blocking vehicle to go around her)

3) one of them quickly walked up to her car

4) grabbed the doorhandle

5) tried to open her door

6) yelling, "get the xxxx out of the car"

7) and another one was yelling, "get out of here"

8 ) and then the guy who had grabbed the doorhandle reached inside the car to try to either open the door or grab her . . .

wasn't she in reasonable fear of her life and therefore acted reasonably when she turned her steering wheel to the right in an attempt to avoid hitting the armed idiot standing in front of her car, and tried to get the heck out of there at a reasonable rate of speed?

[Lance Payette]

Here is the specific DHS policy on use of force: https://www.dhs.gov/sites/default/files/publications/mgmt/law-enforcement/mgmt-dir_044-05-department-policy-on-the-use-of-force.pdf.

Here is a video I had not seen before, which shows how quickly Ross pulls and fires his gun and that the second and third shots were apparently fired through the open window as he stood to the side: https://x.com/Fritschner/status/2008989256543555598?s=20.

This is simply i-n-e-x-c-u-s-a-b-l-e.

[Tom Graves]

Here is a video I had not seen before, which shows how quickly Ross pulls and fires his gun and that the second and third shots were apparently fired through the open window as he stood to the side: https://x.com/Fritschner/status/2008989256543555598?s=20.

This is simply i-n-e-x-c-u-s-a-b-l-e.

I thought you already knew that, FPL.