Weekend Law: Prosecuting ICE, Social Media Addiction & Kid Rock Testifies

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2:16Ice out! Ice out! Temperatures dipped into negative numbers Friday morning in Minneapolis, but crowds of demonstrators still turned out at the federal building to protest ICE operations in the state that led to the killing of two U.S. citizens by federal immigration agents. Also on Friday, in a significant reversal, Deputy Attorney General Todd Blanche announced that the Justice Department has opened a civil rights investigation into the shooting of Alex Preddy by two Border Patrol agents. We're looking at everything that would shed light on what happened that day and in the days and weeks leading up to what happened.

2:57And that's like any investigation that the Department of Justice and the FBI does every day. It means we're looking at videos, talking to witnesses, trying to understand what happened. I mean, you're talking about an incredibly tragic morning. Previously, ICE's Homeland Security Investigations branch had been leading the investigation. And investigating law enforcement shootings is not something they're usually tasked with. Joining me is former Palm Beach County State Attorney Dave Arenberg. Dave, let's look at the potential legal repercussions for the agents involved in these shootings. So the federal government could prosecute these agents, but under what circumstances?

3:42Yes, the federal government has the power to prosecute those who act unreasonably in these circumstances. If they were reckless in discharging their duties, yes. But the federal government has said that they will not even investigate the Renee Good shooting. Now, when it comes to the Alex Preddy shooting, President Trump said that they will have an investigation. So it's unsure at this point whether they would move ahead for the Preti shooting, which, by the way, I think has a stronger case of prosecution there. I think that the agent's actions there, multiple agents, are more likely to be open to criminal liability than the shooting death of Renee Good.

4:22Explain why the Preti case is stronger. The Renee Good shooting. You had an agent who could argue he was in reasonable fear of his life because the car did lurch towards him. Even though it was clear that she was trying to avoid the agent, she was pulling her car to the right, the steering wheel to the right. But the car did lurch forward. You could hear him say, whoa. And because of that, I can see how a jury would say, yeah, he was in reasonable fear of his life, and that's why he shot. Now, the problem in that case is that he shot a second and third time when he was not in any danger. But oftentimes they will look at all the shots together.

4:57Like if you can shoot once, they'll say you can continue shooting until the threat is neutralized. The prosecutors in that case will slow down the video to make each shot unique on its own as opposed to one quick decision. Now, when it comes to Alex Preddy, you had a situation where he was not engaging in any criminal behavior. He was trying to help a woman who had been pushed down by an overaggressive border control agent. And then he got pepper sprayed for his troubles. And then he was thrown to the ground. And then he had seven different agents on top of him. They saw him with a phone the entire time and the gun he had was concealed and he had a permit for it and then it was taken away.

5:36And after it was taken away, then someone yelled out, gun, and perhaps that gun went off, the one that was taken away, and 10 shots rang out in five seconds. He was shot 10 times in five seconds. So I think that one is going to be tougher to defend. And they may say it was a mistake of fact where they thought that the gun went off. But I don't think it's reasonable based on the videos for them to believe that he had a gun in his hand that was going off against them. The top local prosecutor in Minneapolis has opened homicide investigations into both shootings. But federal officers are generally immune from state prosecutions.

6:16Explain how the officers would raise that, how it would work. What's going to happen is that the federal government is unlikely to prosecute the cases. And so the state of Minnesota will seek a criminal indictment. They can undergo a separate independent investigation, which I think has already begun. And then they can seek a grand jury indictment, which I think they will. And when that happens, the federal agent, because he's a federal agent, will ask to remove the case of federal court. Now, the case will still be a state prosecution. You'll have state prosecutors. You'll have state law enforced, but the case would be in federal court with a federal judge and a federal jury, which means that the jury pool will consist of residents of Minnesota from all over the state.

7:01So advantage to the defendant. But when it comes to immunity, the federal judge would make that call. And the question is, did the agent or agents act in furtherance of the duties in a way that was necessary and proper to carry out their duties? And if the answer is yes, then he gets immunity and it's game over. There will be no prosecution. If he says no, it will be appealed, but then it'd be game on for a state prosecution in front of that federal jury. The state's at a disadvantage here in its investigation because the federal government is refusing to share the evidence that it's collected.

7:38This case is so unusual because when I was state attorney in Palm Beach County for 12 years, we worked with the feds. the feds would come in and sometimes they would say they want to take the case and we would stand down. Normally, if the feds say we're not giving you the evidence, it's because they want to preserve the integrity of the evidence so they can do their own prosecution, not to prevent a suspect from ever being prosecuted. So this is uncharted territory. So this is what I think will happen. I think the state is going to file a lawsuit in federal court to get the federal government to turn over the evidence.

8:10I think the state is going to ask a federal judge to require the federal government to turn over the evidence they have. And I think they'll have a good claim here because the federal government has made clear that they're not going to even investigate the Renee Good shooting. And I think the federal judge, whoever it is in this case, will say, you can't conceal the evidence from state authorities for the purpose of protecting a suspect. Only if you really have a good faith basis for investigating yourself and prosecuting the case yourself, can you withhold evidence from the state? So I think that the federal judge will grant the state's motion.

8:44But even if they don't, even if the state does not get the evidence from the feds, the state prosecutors already started a web portal where they're seeking and obtaining videos and witness testimony and other evidence pertaining to the case. And you could file charges in this case, you can get indictment based on the videos alone, you don't need necessarily to have the car because the feds have the car when it comes to Renee Good. And that would be helpful, but the state doesn't need it to seek charges because remember, when you get an indictment, you just need probable cause. Once someone's indicted, then discovery begins and then you'll get more information.

9:21And it doesn't do the would-be defendants in this case, the agents, doesn't do them any favors by withholding the evidence from the state because the evidence that the federal government has can also be exculpatory, meaning it could be to the defendant's benefit, especially because the feds are a favorable agency for these ICE and border control agents. So that's why I would think as defendants, they would want the federal government to turn over all evidence they have to the state or else the state is going to do their own investigation. And I think it will result in an indictment. And besides the immunity defense, what other defenses could the agents raise if they are prosecuted?

10:01Well, immunity is not even raised at trial. Immunity comes before, and that would shut it down. That prevents a trial to happen in the first place. So if it does go to trial, they would say that we acted reasonably under the circumstances that their lives were at risk, where they had an imminent threat against their lives. And the imminent threat in the first case would be the car lurching towards the ICE agent. In the second case, Alex Preddy, they would say mistake of fact that they were in reasonable fear of their life, even though it was a mistake, but that mistake was reasonable because this guy had a gun and they didn't know it was taken away.

10:39It was all happening so quickly. And this is their defense. I'm putting myself in their shoes. And they would say that when someone yelled out gun and then they heard a gunshot, they reacted the way they were taught to neutralize a threat. Now, they'll say that whether it's one shot or 10, you shoot to kill, you shoot to neutralize a threat. So that's going to be their defense. I think it's a tougher defense in the Petty case than in the Renee Good case. Does the defense have an advantage if the case is tried in federal court, even under state law? The defendants will certainly remove the case of federal court to get a jury pool from the entire state of Minnesota, because in federal court, there's one judicial district, and that's the entire state.

11:19Residents of Minnesota from all over the state, conservative, liberal, not just from blue Hennepin County. So instead of getting people who are angry about what's happening in Hennepin County, you'll get a cross-section of the entire state, including Republicans. And that's why even if this does go to trial and immunity is rejected, it is still an uphill battle for prosecutors because you've got to prove beyond a reasonable doubt in front of a unanimous jury that these agents committed crimes. And you have a natural inclination of people to believe law enforcement, to trust law enforcement, to give them the benefit of the doubt.

11:51And you have politics at play where people can see the same video and it's like a Rorschach test where they interpret it differently. And so how are you going to get 12 jurors to all agree one way? That's the challenge that prosecutors face. Dave, there are so many videos already of the Preddy shooting from different angles. Does that make it easier for the prosecutors or perhaps not just more confusing? I think the more videos, the better, the more transparency, the more angles, the better, because if you don't have the full picture, you're going to have reasonable doubt. So there you go. If you're in the government, you want to have enough proof that you can prove beyond reasonable doubt that these officers were not in imminent danger and it was not reasonable for them to think that their lives were at risk.

12:37But that's what good lawyering is about, is about deciding how to present the videos. For example, in the Rodney King case, you remember that, the prosecution showed the video and it was appalling, a horrific video. But the defense slowed it down frame by frame. And they showed – see, the officer reacted here because Rodney King was resisting. And they showed that in slow motion and he was acquitted at the state level. Well, in this case, they're going to slow the video down to try to convict the officers. It's like the opposite. It's like the reverse Rodney King where the government is going to say slow it down.

13:13And you see that the Renee Good shooting shots, two and three, were inappropriate, unreasonable. and also they're going to slow it down in the Alex Preti case. See, look, the gun was removed. It was walked away and then the shots began, even though it happened really quickly. A long way to go and many, many motions ahead before any trial. Thanks so much, Dave. That's Dave Ehrenberg, former Palm Beach County state attorney. Coming up next on the Bloomberg Law Show, a landmark trial on social media addiction starts in Los Angeles. I'm June Grosso and you're listening to Bloomberg. This message is brought to you by Apple Card.

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16:25You have a product that's killing people. That was Republican Senator Lindsey Graham during a Senate Judiciary Committee hearing two years ago. A rare instance where Democrats and Republicans were united in their criticism of social media CEOs like Mark Zuckerberg for not protecting kids online. The meta CEO pushed back on some studies that suggested social media use is a detriment to the mental health of teenagers. Mental health is a complex issue, and the existing body of scientific work has not shown a causal link between using social media and young people having worse mental health outcomes.

17:07Zuckerberg may make that same claim when he testifies to a jury in a landmark trial over claims that the top social media companies have deliberately gotten teenagers addicted through their design choices. On trial are Meta, the owner of Facebook and Instagram, and Google, the owner of YouTube. They dispute the claims that their platforms deliberately harm children and cite the safeguards they've added over the years. Snap settled the case last week and TikTok settled on the eve of trial. Joining me is an expert in cybersecurity and data privacy, Colin Wacke, a partner at Hall Estill. Colin, the plaintiff in this case is a California woman who's now 20 years old.

17:52Tell us about her allegations in this lawsuit. This is really the first one that's going to trial. There are dozens, if not hundreds, of similar lawsuits out there. And the basic allegation in this case, in all of the cases, is that the algorithms that have been put out there by the social media companies, as well as all the bells and whistles they put on their social media platforms, have made their products addictive. So this is very much akin to the tobacco litigation in the 1990s. One, is it addictive? And then two, are there harms that flow from it? The jury is ultimately going to decide that in this case.

18:26And the plaintiff's theory is a novel one that compares social media sites to defective products. Yes. And in fact, some of the claims even relate back to like a nuisance type claim. But long story short is that the way these algorithms operate is they get you addicted through casino style techniques. So casinos know, for example, that every time that you put a quarter in, you shouldn't get a reward because then you won't come back. So it's the timing with which you see and the content that you see it in. And then what are the consequences that flow from that? So, for example, mental health harms as a result of that.

19:01You can think about children in school and the distractions. That's some of the allegations that have come out in these cases is, you know, Instagram started losing teenagers. And they were sitting there going, how do we get back more teenagers? Well, let's figure out a way to get our platforms in schools, right? And so the harms that flow from this are unique to each individual, but you can see how they compound. So they're going to try to show that the social media companies deliberately made these addictive design choices. Correct. It is intentional that they have done this. And I think that there's plenty of testimony out there that probably supports the goal of making individuals remain on platforms as long as possible, keeping their attention there so that they can increase the number of viewers and thereby increase the number of advertisements.

19:47So I don't think there's really anything new about that. But the tech companies are coming in and saying, whoa, whoa, whoa, whoa. We already know based off of the Supreme Court's ruling on Section 230 that the algorithms themselves are protected speech. And so the unique claim in this particular case is, yes, that may be speech, but the other bells and whistles that you're putting onto this and what you're doing within it is not speech, and rather it's conduct that is getting us addicted to your platform. The tech companies are also arguing that they're not legally responsible for the effect of the content made by users.

20:22So explain what their out is here, what they're trying to get to. Right. So in short, the fact that you're being shown what you want to see is your own choice. You could choose to see and view different things based off of the likes and your viewing habits and all of that. So they're essentially saying all we're doing is giving you what you want. We're not doing anything to make it more enticing than it already is. And, you know, part of the argument, too, is how much is your cell phone itself addictive versus the platforms themselves, right? So every time you get an iPhone update, for example, it becomes a little bit brighter.

20:58Why? The brighter the screen, the more dopamine in the brain. The more dopamine in the brain, the more you want to look on your screen. That's why it's hard for you to figure out without going to Google how to set your screen to black and white. They don't want you to know that. So part of their argument here, too, is how do you distinguish which component of this is addictive? The plaintiff in the case, a 20-year-old woman identified only by the initials KGM, claims that more than a decade of social media use left her addicted and depressed. The defendants are challenging that narrative, saying she experienced difficult family relationships, abuse and bullying at school, and that played a role in her mental health struggles.

21:38I mean, how difficult is causation going to be here for her to prove that, you know, it was her addiction to the platform rather than all the other things happening in her life? Well, it's one of the sayings that we have in personal injury cases, which is you find your plaintiffs as they are. And so in this particular case, yes, they have some pretty good arguments that the mental health harms are a result of her history. But the question then becomes, were they exacerbated by virtue of the negligent conduct? And if that's the case, then the proximate cause is, in fact, the social media platform and not the historical trauma that she experienced.

22:17It is going to be an issue for the jury to determine about the mental health harms. What was the ultimate cause? What are those damages? And on top of that, are punitive damages, something that could be afforded? There is a debate within the mental health field about the connection between social media and increasing teenage rates of depression, anxiety, suicide ideation. Is that debate going to enter the courtroom? Are we going to see, you know, experts on both sides of the issue? Absolutely you will. Just like you saw with the tobacco litigation. I mean, that's the reality is you're going to find experts on both sides of this issue.

22:52But at the end of the day, the reason why the jury trial system is so good here in the United States is because our jurors really are good at detecting BS. And so they'll be able to figure out pretty quickly, not just from what the testimony is, but from their own personal experiences. I don't think that anyone can ultimately hear the testimony of these executives and former executives and decide that they didn't at least try to make it more addictive. Whether they accomplished that goal may be a different story, but it's pretty clear they at least tried. Explain what a bellwether trial is and is this a bellwether trial?

23:28This is absolutely a bellwether trial. So it's very similar. Recently, for example, you saw Tesla actually went to trial and won on one of the cases where their automatic driving vehicle injured somebody. And so that is going to embolden Tesla into the future. So if you imagine a scenario in which the social media companies do win this case, they're going to feel emboldened to continue to pursue it. On the flip side of that coin, if the plaintiffs win this case, then at the end of the day, you're going to start seeing a lot more settlements. And speaking of settlements, the fact that Snap and TikTok settled, TikTok on the eve of trial, both for undisclosed sums, what does that tell you about how the social media companies are evaluating the risk of going to trial?

24:13I think what most people don't realize is that lawyers' jobs are to manage risk. We are risk managers. That is it. And so for the plaintiffs in this case, if they settle, the reason why is because they know that this is going to be taken all the way to the Supreme Court, and that's going to take another five years, whereas they can get some money today and avoid that risk, right? So there's an incentive for the plaintiffs to settle from that regard. And there's an incentive for the defendant to settle because they don't want this information to get out there in the real world about how much, you know, your privacy is being pilfered for profit.

24:43They don't want their dirty laundry aired. And so this is why settlements happen is because both sides are incentivized to not continue on with the case, whether they're right or wrong. Zuckerberg is expected to be among the first witnesses called. He has testified before Congress, but explain how different it is to be testifying in a courtroom before a jury where you're subject to cross-examination. Well, it's wildly different because if you remember back when Mark Zuckerberg came and testified in front of Congress, one of the congressmen actually thought the reference to a cookie was an edible item and not a pixel contained on your computer screen.