Jan.13

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Minneapolis Is Apparently the Hill that The White House Wants to Die On, Part II

Yesterday, we wrote roughly 5,000 words on the shooting in Minneapolis, and didn't even get to half of the things we intended to discuss. That's the price of admission around here, we suppose; everyone knows that if you're someone who needs 10,000-20,000 words to say what you want to say, the punishment is that you either have to: (1) go to grad school in history or (2) go to law school.

In yesterday's item, we hope we were able to establish the following half-dozen points:

1. The administration wants very much to shield the shooter from any scrutiny, or from suffering any consequences for his actions.
   
   
2. At the same time, the administration is leaning into the narrative of "a city out of control," and intends to turn up the heat in Minneapolis (and in Minnesota as a whole, and also in California).
   
   
3. In service of this goal, high-ranking members of the administration have made risible claims about the meanings of "domestic terrorism" and "fraud," among other alleged crimes. The administration has also commenced a wide-reaching campaign to market and to enforce its version of reality, including sending more ICE officers to Minnesota, launching a propagandistic website highlighting how evil ICE's targets are, and announcing the creation of a new assistant AG who will ostensibly be a fraud czar, but will really just be a button man (or woman) whose job is to punish the alleged enemies of Don Trump-eone.
   
   
4. This particular incident is a little unusual, because there is video footage that people can see with their own eyes, allowing them to reach their own conclusions. A fairly small minority of controversial incidents are documented in this way.
   
   
5. To our surprise, the first video released (from a bystander) is unusually clear in showing that the government's version of events is a fantasy. We absolutely expected it to be open to multiple interpretations, and to write as much, but it's really not. The second video is a little more ambiguous, but only a little.
   
   
6. Partisan actors on the MAGA side of the dispute have looked at the videos and reached pro-ICE conclusions. Partisan actors on the anti-MAGA side of the dispute have looked at the videos and reached anti-ICE conclusions. The problem for the administration and for the GOP are the folks in the mushy middle. For the reasons we summarize in the previous point, we believe that the majority of people who do not already have a strong predisposition, and who see the videos, will ultimately reach conclusions at odds with the administration's version of events.

And now, let us continue the discussion, turning our focus to the shooter.

As we noted in yesterday's item, the shooter was quickly identified (so much for those masks that ICE officers have been wearing). His name is Jonathan Ross, and he is a decorated veteran of the Iraq War, having been deployed as a member of the Indiana National Guard. After leaving the service, he joined the U.S. Border Patrol's El Paso, TX, office in 2007. Then, he transitioned over to ICE in 2015, and he's been working for that agency ever since.

There has been much commentary, particularly on social media, but also in broadcast and print media, about how the Trump administration's rush to staff ICE, and to deport immigrants en masse, has led to a serious decline in standards, and has allowed agents to take the field when they have no business doing so. This is absolutely true. To take one concrete example, ICE agents used to undergo 5 months of training. Now, that has been shortened to 48 days, or sometimes less, if there is a holiday during the now-8-week training period. Officials are particularly delighted when exactly one day of training is lost, leaving just 47. Because, you see, Trump is the 47th president. So, that's just... perfect. We are not making this up.

Anyhow, while it is tempting to some people to reach the conclusion that Ross is one of the hastily trained, poorly vetted ICE officers who is now in the field, it just isn't so. He clearly is an experienced, and properly trained, agent. Of course, this does not preclude the possibility that his partners on the day of the shooting were badly trained, and so helped trigger a loss of operational control. It also does not preclude the possibility that Ross should have been removed from his post, but wasn't because the Trump administration can't afford to let people go. Still, while we allow for these possibilities, we tend to think "ICE has a lot of unqualified, under-trained officers who don't know what they're doing" is probably not a key element in the Minneapolis shooting.

If Ross WAS a candidate for removal or demotion, it would almost certainly be due to an incident back in June of last year. On that occasion, in Bloomington, MN, Ross endeavored to arrest Roberto Carlos Muñoz-Guatemala, a Mexican citizen accused of being in the U.S. illegally. Muñoz-Guatemala refused to obey officers' commands, including a command to roll down his window, so Ross shattered the back window and tried to reach in and open the driver's side door of Muñoz-Guatemala's vehicle. Muñoz-Guatemala attempted to flee, and Ross was dragged several hundred feet, twice firing his taser in an attempt to subdue the driver. Eventually, Ross fell free of the vehicle. Later, Muñoz-Guatemala was detained. Much later than that, Muñoz-Guatemala was convicted of assaulting a federal officer.

In view of what happened, it's fair to ask if Ross tends to be a little reckless in his approach to his job. Most officers, even most ICE officers, don't have one confrontation like this on their record, and Ross now has two (one fatal, of course). It's also fair to ask if he was in the right headspace on the day of the shooting, inasmuch as what happened last week very likely triggered memories of what happened last June. Indeed, it's not outlandish to suggest that maybe he was suffering from some sort of PTSD. In fact, J.D. Vance made that very suggestion in his remarks, saying that Ross flashed back to the earlier incident on the day of the shooting. And all of this makes it fair to ask whether the DHS should have removed Ross from active duty for some period of time (or permanently), and if they were negligent in failing to do so. All of these questions are likely to come up in court, should the matter be put before the legal system.

But will that happen? Very early on, just hours after the shooting, The Wall Street Journal spoke to Emmanuel Mauleón, who is a law professor at the University of Minnesota. According to his faculty bio, he "writes about the roles that police and other state security actors play in producing social, political, and legal regimes of domination and subordination." So, he would certainly seem to be an excellent person to consult about an incident like this, particularly when the incident happened in Minnesota.

The linked piece is behind a paywall (sorry), but here's the main thrust:

Without cooperation from federal agencies, it will be close to impossible for state officials to put together a case, said Emmanuel Mauleón, a law professor at the University of Minnesota. State prosecutors are now unlikely to have access to any further evidence—body-worn camera footage, if it exists, interviews with the officer and witnesses, medical reports—and any other investigative material that could be part of a case, Mauleón said.

That's pretty definitive. And there are unattributed notions floating around in the ether right now that would seem to affirm Mauleón's assertions, like "A state cannot prosecute a federal officer UNLESS that officer is charged with a federal crime." We've seen that one, or a close variant, at least half a dozen times.

It is true that a non-cooperative FBI, and a lack of federal charges, makes things more difficult. But we think that Mauleón—who, in fairness, did not have some information that we now have, like the second video—was guilty of a bit of overreach. Actually, a lot of overreach. We suspect that for the "average" case, Mauleón was right on target. But the video evidence, not to mention the enormous amount of attention being paid to the shooting of Renee Good, makes this FAR from an "average" case.

At this point, let us remind readers of a lesson that Donald Trump has taught everyone, over and over, and that Mauleón should have allowed for in his remarks: Sometimes people pursue lawsuits to send a message, whether or not they think they can win. And Ross (and the administration) may have drawn the least desirable foe imaginable on this front: Hennepin County Attorney Mary Moriarty. When she was elected, her platform was... that law enforcement personnel need to be held accountable when they overreach. So, this is right in her wheelhouse, to say the least. Moriarty has already announced that her office will be conducting its own investigation, even if the FBI is not cooperating. She has asked the public to come forward with videos or any other relevant evidence they might have to offer.

Under the circumstances, and given what is already publicly known, the odds are pretty good that Ross is going to see the inside of a courtroom, one of these days. And he may very well see the inside of a courtroom for many of these days. But could he lose? We're going to pass along 8 pieces of information that we think are relevant, so readers can reach their own conclusions:

1. Absolute Immunity: There are many people out there, particularly within the Trump administration, who claim that Ross has "absolute immunity" for anything and everything he did. This is a falsehood. What Ross actually has is qualified immunity. It's a little weedy, and you can read a pretty good overview here, if you wish. However, what it boils down to is that while it's necessary to hold law enforcement officers and government officials accountable, it is also necessary to protect them from having to waste lots of time and money defending frivolous torts. So, the Supreme Court has said, several times, that a government official can only be civilly sued if he or she, with no legitimate purpose, knowingly violated a person's constitutional or statutory rights.
   
   The reason that this ends up in court, a lot, is that the line here is pretty fuzzy. To take an example, if an officer legitimately believes you have cocaine in your car, and conducts a search, they are in the clear. If they do not legitimately believe that, and they just go on a fishing expedition, then they can be sued. Since belief states are tricky to prove/disprove, this gives law enforcement officers and other government officials a lot of leeway. But the most important thing here is that this is a CIVIL protection. Qualified immunity does not protect government officials from criminal charges. So, qualified immunity is not going to be Ross' "Get Out of Jail Free" card.
   
   
2. Sovereign Immunity: There are also some folks out there arguing that Minnesota can't go after Ross criminally because he's a federal employee, and the federal government and its employees cannot be sued without the federal government's permission, because the government has sovereign immunity. This is also nonsense. It's even weedier than qualified immunity, but if you're a glutton for punishment, you can read this journal article. Sovereign immunity largely places limits on individual citizens, not on the other levels of a federal system. And there are numerous well-established circumstances under which states or municipalities are perfectly free to sue and/or bring charges against the federal government and its officials. Several of those circumstances would appear to apply to the Minneapolis shooting. For example, states are free to sue and/or bring charges against federal employees who violate state law, unless those federal employees are acting within the bounds of their lawful duties.
   
   Perhaps the easiest way to make the point that Ross is not going to be auto-protected on the basis of sovereign immunity, qualified immunity, or any other immunity, is this: Moriarty (the Hennepin County Attorney) says that it's possible to bring charges against Ross. If anyone would know, it's her.
   
   
3. Use of Force: The Department of Justice has a very clear use of force policy, which you can read on their website. It's four single-spaced pages, but the "money quote," as it were, is this: "Agents may not fire at a moving car that is threatening them unless no other objectively reasonable means of defense appear to exist, which includes moving out of the path of the vehicle." The DHS policy, which you can read on THEIR website, says almost exactly the same thing: "Deadly force shall not be used solely to prevent the escape of a fleeing subject. However, deadly force is authorized to prevent the escape of a fleeing subject where the LEO [law enforcement officer] has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape."
   
   These policies are a reflection of existing law and precedent, most importantly Tennessee v. Garner (1985), in which the Supreme Court found that an officer may not use deadly force to prevent the escape of a vehicle unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." This is a commonsense conclusion, for two reasons. First, if an officer starts shooting at a moving vehicle, there's a big risk that an innocent bystander will be hit. Second, if you shoot and kill/disable the driver of a moving vehicle, you are left with a vehicle that is out of control, with no real means to stop it until it crashes. So, an officer has to be really, really certain before they open fire on a moving vehicle.
   
   
4. Fact Pattern: Everything we have written so far points to one very obvious conclusion: It's going to be very important to Ross' case that he believed that he was in imminent danger of great bodily harm AND that he couldn't have done anything to avoid using deadly force. And the law requires that you look at the totality of the situation. So, everything those agents did leading up to the moment Ross shot Good is relevant. An officer can't deliberately create a situation that puts him in harm's way as an excuse for lethal force.
   
   And the facts here are really damning. Ross fired the second and third shots through Good's driver's side window, so he was standing next to the car, not in front of it. The tires were turned to the right, so she was trying to follow their instructions and leave. Under these circumstances, maybe he could have gotten away with the first shot, through the windshield. But he kept shooting even after the alleged threat was over. The extra pair of shots looks to be inexcusable.
   
   
5. Law Enforcement?: Another potential issue here is ICE's status as a law enforcement agency. They aren't exactly police, and so may have fewer legal protections than, say, U.S. Marshals or FBI agents would have. More importantly, note that the name of the agency is Immigration and Customs Enforcement. That means that they cannot act as general law enforcement, and are only empowered to deal with—that's right—crimes related to immigration and customs. So, the questions of whether the agents had a good faith belief that Good was committing an immigration-related crime, and whether they really and truly believed she was interfering with their activities, are likely to be relevant. Also relevant is exactly what their activities on that day were. If they believed Good was interfering with the arrest of an accused undocumented immigrant, that's rather different than if she was interfering with their ability to find a restroom.
   
   
6. Ross' Past: If there is a lawsuit (or several lawsuits), Ross' past would be explored and exploited to the hilt by the lawyers on the other side of the table. And he looks to have a couple of big problems on that front. The first of those is the confrontation with Muñoz-Guatemala last year. As we note above, that could speak to a pattern of reckless behavior, or to Ross being unable to perform his duties effectively.
   
   There's also another potential issue with this case. When Muñoz-Guatemala was tried, Ross (naturally) appeared in court, and he testified at length. During that testimony, he dropped a bombshell, something that had previously not been introduced into evidence, claiming that during the confrontation, Muñoz-Guatemala asked for his lawyer. This piece of information, if true, would give more credence to Ross' version of events, since a key point of contention in the case was whether or not Muñoz-Guatemala knew he was dealing with federal officers. Obviously, someone who asks for their lawyer knows, or at least suspects, that is the case.
   
   Needless to say, it's a little suspicious that Ross did not remember that little detail until the middle of his testimony. Both the defense and the prosecution were caught by surprise. And an FBI agent who was on the scene, Bernardo Medellin, testified that Muñoz-Guatemala did NOT ask for his lawyer. Should Ross end up on a witness stand again, this time as a defendant, the question of whether he perjured himself, and why, will surely come up.
   
   There is one other significant issue that has already come up (and this is before reporters and opposing counsel have had time to dig, dig, dig). Even if Ross' life was in danger, it was in danger because he walked in front of Good's vehicle AFTER the incident was well underway. This is very, very bad procedure, and officers are trained never to do that under those circumstances. See, for example, a piece that Forbes published over the weekend, with the headline "'That's a dangerous decision to make': policing experts baffled by ICE officer stepping in front of moving SUV before opening fire."
   
   So, why might Ross have made the choice he made? At this point, let us remind readers of two things we note above: (1) "After leaving the service, [Ross] joined the U.S. Border Patrol's El Paso, TX, office in 2007. Then, he transitioned over to ICE in 2015, and he's been working for that agency ever since..." and (2) "An officer can't deliberately create a situation that puts him in harm's way as an excuse for lethal force."
   
   Why might these things be relevant? Well, in 2014, in response to a lot of problems involving Border Patrol agents, an independent panel was convened to take a look at the problem. That panel produced a detailed report, which was never meant to be made available to the public. Naturally, the report was leaked, specifically to the Los Angeles Times. Here is the first paragraph of the Times' story, published on February 7, 2014:

   Border Patrol agents have deliberately stepped in the path of cars apparently to justify shooting at the drivers and have fired in frustration at people throwing rocks from the Mexican side of the border, according to an independent review of 67 cases that resulted in 19 deaths.

   So, at the very time that Ross was working for the Border Patrol, there was a well-documented pattern of agents deliberately putting themselves in harm's way by stepping in front of vehicles, so they would have an excuse to use deadly force. That's the sort of information that a jury would likely find... very interesting.
   
   
7. Civil Suits: Most or all of what we have written here is addressed to a potential criminal prosecution of Ross. However, there is also the possibility that Ross will be civilly sued for wrongful death. His fellow ICE agents might be included in that. Remember, as we have already written, the agents at the scene denied Good any medical care. When the ambulance finally arrived, ICE refused to move their cars so the EMTs could provide medical assistance. So, it's unknown if she could have been saved if she'd been given help sooner.
   
   A civil suit, in contrast to a criminal case, would run into the potential question of qualified immunity, as we outline above. On the other hand, civil suits generally have a lower burden of proof.
   
   
8. Precedent: There are many, many examples of federal officers being successfully sued and/or prosecuted for overstepping their bounds, so anyone who tells you it just isn't possible doesn't know what they are talking about. We don't want to bore people, so we'll limit ourselves to one, recent example. How recent? How about... last week?
   
   In 2020, as the first Trump administration was winding down, a U.S. Border Patrol agent named Joseph Jones (at least, that's his name in court documents) was deployed to Portland, OR, to aid with the crackdown there prompted by the George Floyd protests. Jones was staying at the local Residence Inn by Marriott, and he called the hotel's front desk to report a clogged toilet. Maintenance worker Christopher Frison was dispatched to handle the problem, and when he arrived at Jones' room, Jones threw the door open, pointed his gun at Frison's chest, and appeared ready to fire. As soon as the agent lowered his weapon, Frison got the heck out of there. And last week, DHS settled the case for $125,000.

Let us remind readers, again, that it's very tough to win civil and/or criminal cases against law enforcement, or pseudo-law-enforcement, officers. Also, let us note one other wrinkle here. If Ross does end up on trial, and if he does try to use immunity as a defense, then his case will almost certainly be moved to federal court, as his defense would be rooted in federal law (though if it's a criminal case, the prosecutors would still be Minnesota state officials). Obviously, federal court is another wildcard, particularly depending on what judge ends up assigned to the case.

In any case, as we note above, we are trying to give readers what they need to reach their own conclusions about whether or not Ross could lose a criminal or a civil case. However, we believe we've demonstrated three things pretty definitively: (1) There is an excellent chance that Ross will face a criminal case, or a civil suit, or both; (2) if it's a criminal case, there should be more than enough stuff here to secure a grand jury indictment and (3) if it's a criminal case, or a civil suit, there should be more than enough stuff here to survive the inevitable request for dismissal from the defense.

And that's where the politics (finally) comes in. If those three suppositions are correct, and if this ends up as a long, drawn out court case (or several court cases), then it will keep this incident in the headlines for months and months and months. Like Epsteinpot Dome or the trade wars or the Kennedy Center, it will be yet another story that the White House just can't shake. Of course, Ross could accept a plea deal and/or a settlement, but that would be a tacit admission that ICE is (at least sometimes) out of control, which is not much better for the administration.

We are, as you can tell, giving this story LOTS of attention. And we are doing that because there's a meaningful chance that it's a political game-changer. That is not to propose that it will bring down the Trump administration singlehandedly. But it is possible it will become a major anchor around the neck of Trump and of the Republican Party, like Hillary Clinton's e-mails, or Trump's vaccine flip-flopping, or Joe Biden's debate meltdown. And in case that happens, we want to be able to look back and say we gave the subject proper attention.

We are just shy of 4,500 words here, and we don't want to overdo it on Minneapolis on any one day. So, we'll carry this over to a Part III, tomorrow. (Z & L)