…literally doesn’t know what they’re talking about. That includes the guy with an M.A. in philosophy, who self-describes as a “law enforcement officer,” whose substack post several folks have sent me. There is a scenario in which, upon further investigation, it could turn out the killing was legally justified, but there is no basis for saying that at this stage, so the substack author just reveals himself to be a right-wing hack by declaring the killing legally “justified.” Here, by way of contrast, is the asssessment of an actual lawyer and former federal prosecutor, who has handled police killing cases:

Prosecutors must first find that the force used was excessive as a matter of constitutional law. That means, in Fourth Amendment parlance, the force was an objectively unreasonable seizure. Prosecutors must prove this under a legal standard that explicitly allows “for the fact that…officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).

And even if the force is excessive, prosecutors must also prove the agent’s intent. The law sets an exceptionally high bar here. Prosecutors must prove that the agent acted “willfully,” meaning that he must have had the specific intent to deprive someone of a constitutional right. As I and many other civil rights prosecutors have explained to juries in these cases, willfulness requires the agent to know what he is doing is wrong and decide to do it anyway, one of the most stringent mens rea requirements in criminal law. That standard permits prosecution of agents who purposefully or consciously choose to act in violation of the Constitution (not to mention in violation of their training and experience). But it precludes prosecution of agents who, no matter how unreasonable their use of force, nonetheless acted unknowingly, negligently, or in the good faith (but incorrect) belief that the force was necessary. One result of these requirements is that federal prosecutions for excessive force are typically brought only on the most unassailable evidence and are, in the grand scheme of things, relatively rare….

Since Good’s shooting, facts have incrementally emerged that point to both the excessiveness of Agent Ross’s use of force and to his intent. Exhaustive reporting has helped establish many of the circumstances surrounding the Jan. 7 shooting, including through a multi-angle, step-by-step analysis of the incident. It’s a good start in determining whether the force was unreasonable. The fact that agents had been able to pass by Good’s vehicle; that Good was clearly turning her steering wheel and vehicle away from the agents at the time shots were fired; that there was a notable gap between Agent Ross’s body and the vehicle, at least at the time of the second and third shots; that he was the only agent on the scene to even attempt to use any kind of force—all indicate that resorting to deadly force was not reasonable under the circumstances. Prosecutors would, of course, want to test, corroborate, and build on that evidence through, among other things, ballistics analysis, complete autopsy and medical reports, and witness accounts. Definitively establishing where the agent was positioned when he fired the shot that, according to an independent medical pathologist’s report, struck the left side of Good’s head and likely killed her, will be critical.

The more difficult question, as in so many of these cases, is one of intent. Prosecutors must prove the agent’s thinking and motivation. To this end, there is evidence that Agent Ross did not view Ms. Good as an imminent physical threat. Multiple videos show, for instance, that Agent Ross’s own vehicle was able to get around Ms. Good’s SUV, that he chose to walk around the front of Ms. Good’s vehicle (thereby exposing himself to possible harm, and against DHS policy) with one hand occupied by a cell phone, and that, just prior to the shooting, Ms. Good told the agents, “I’m pulling out.” Other evidence suggests that Agent Ross may have shot because he felt annoyed or disrespected by Ms. Good and her partner, rather than out of fear for his safety. The former are improper motivations that would support [the applicable federal statute’s] willfulness prong. From the outset, for example, videos show that Ms. Good and her partner stopped their SUV in the street and honked the horn repeatedly in apparent protest of the ICE agents. Additionally—and courtesy of the agent’s own cellphone video, which importantly provides a view of the incident from his perspective—we can hear Ms. Good say, “That’s fine dude, I’m not mad at you,” and her partner sarcastically tell Agent Ross to “go get yourself some lunch, big boy.” Perhaps giving a window into his irritation at these remarks or Ms. Good’s attempt to drive away, Agent Ross muttered after firing his weapon at her, “f*cking b*tch.” He walked away from Ms. Good’s SUV, which had by that point crashed into a parked vehicle (a clear sign that Ms. Good was injured or dead), and gestured to someone else to “call 911.”

Together, these facts are more than enough to show the allegation that Agent Ross willfully used excessive force when he shot Ms. Good is a serious one. And because that allegation, if proven, would constitute a violation of federal law, it is wholly appropriate to open a formal investigation into the shooting. (Indeed, it is no wonder that an initial FBI review reportedly concluded that opening an investigation was justified.)

The author goes on to describe the kinds of evidence an investigation would seek to uncover. Readers interested in a serious discussion of the legal issues should read this lawyer’s entire piece.

ADDENDUM: I discovered why readers were sending me the idiotic piece by the amateur Tim Hsiao: it was prominently featured on a blog by a clueless philosophy professor. Oy veh. I hope this post helps academic philosophers better appreciate the legal issues.