From the Southwest Ledger
By James Finck, Ph.d. , January 27, 2026
I remember attending a training session in college that included a presentation on sexual assault. At one point, the speaker advised women to be cautious about accepting drinks or drinking too much at parties. Some female students became upset and asked why women had to be the careful ones, why men couldn’t simply choose not to rape. They accused the speaker of victim-shaming.
I have never forgotten his response. He told the audience they were absolutely right: if they are assaulted, it is never their fault. Then he added something that stayed with me: “While it may not be your fault, you will still be the victim. And I don’t want you to have to go through that.” It reminded me of something my best friend used to say in high school: “Be careful crossing the street in a crosswalk, because if you are hit by a car, even if you are legally right, you are still dead.”
No matter how the Jan. 7 situation in Minnesota ultimately turns out, the most important fact remains that a woman, a mother, a daughter, and a wife, is dead. That is tragic, and it should never be forgotten. At the same time, understanding why it happened matters. Like the speaker in that training session, I am not trying to blame the victim. I want to prevent similar tragedies in the future. Regardless of fault, a life has been lost and all lives are sacred.
There is a legal concept known as volenti non fit injuria, which roughly translates to “to a willing person, no injury is done.” The idea is that if someone knowingly places themselves in harm’s way, they may have limited legal recourse if they are injured. If a person wakes up and deliberately places themselves between federal law enforcement and a criminal suspect, they are knowingly assuming some degree of risk.
This doctrine likely does not completely apply to the Minnesota case, because while some risks may have been foreseeable, such as arrest or a fine, there was no reason to assume death as a likely outcome. Volenti non fit injuria fits better in situations like a boxer entering the ring or a football player accepting the long-term risk of chronic traumatic encephalopathy. I am not a lawyer, nor do I claim to be one, but the question that naturally follows is whether this doctrine applies differently now, given that death has become a foreseeable outcome when people interfere with ICE operations.
Even if it does not apply as a matter of law, the principle remains relevant and educational. One place it does seem to fit is in the modern assumption that protesters bear no risk at all. Many appear to believe that protesting, even illegally, is a right without consequences. They want to fight the system, but not if it involves personal risk or legal accountability.
A more fitting doctrine for what is happening now may be ex turpi causa non oritur actio, which holds that no legal claim arises from one’s own illegal conduct or interference with lawful process. While this doctrine is traditionally rooted in common law, its underlying logic remains instructive.
A useful illustration is Grisham v. Valenciano (2025). To avoid claims of political bias, it is important to note that the protesters in this case were on the political right, protesting Second Amendment restrictions. In March 2018, James Everard and Christopher Grisham openly carried loaded firearms in violation of city ordinances as a form of protest. When police responded, Everard was ordered to lie on the ground but refused. After prolonged negotiation, Grisham intervened. Police ordered him to back away; he refused. Grisham was eventually tased, fell, and struck his head. Both men were later released for lack of evidence but filed a civil lawsuit against the officers. Both the trial court and the appellate court ruled in favor of the officers, finding they were protected by qualified immunity because the plaintiffs could not establish that the use of force was unreasonable under the circumstances.
Another important case is Barnes v. Felix (2025). In that case, Officer Roberto Felix pulled over Ashtian Barnes in April 2016 as the rental car Barnes was driving was linked to unpaid tolls. Barnes could not produce a license or proof of insurance and said the documents were in the trunk. He opened the trunk from inside the car and turned off the engine. When asked to exit the vehicle, Barnes began to do so but then reentered the car, restarted it, and attempted to drive away. Felix jumped between the door and the moving vehicle and ordered Barnes to stop. When Barnes did not comply, Felix fired his weapon, killing him.
The case ultimately reached the Supreme Court, which ruled that an officer’s use of deadly force is reasonable under the Fourth Amendment if the officer reasonably believed there was a threat at the moment force was used. It’s important to note here, it’s not whether harm was intended, but if the officer perceived it.
Yet perhaps the most important case for understanding the current situation is Brandenburg v. Ohio (1969). The central problem may not be those physically blocking streets or interfering with law enforcement, but the elected leaders who encourage them to do so. There is an uncomfortable parallel between politicians urging followers to confront law enforcement and Islamist leaders ordering their followers to strap on explosive vests while they sit in their apartments.
Still, gives political leaders significant leeway. Clarence Brandenburg, a Ku Klux Klan leader in Ohio, was convicted after stating at a rally that if government leaders failed to protect white citizens, “there might have to be some revengeance.” The Supreme Court overturned his conviction and established a test for First Amendment protection.
That test focuses on three elements: intent, imminence, and likelihood. First, was the speaker trying to encourage interference with law enforcement? For example, saying “ICE is immoral” is protected speech; saying “Go stop them” is not. Second, was the call to action immediate? Saying “Someday we should resist” is protected; “Go stop them now” may not be. Third, was it realistic that people would act on the encouragement? Footage of the city streets seems to suggest so.
Ultimately, those questions will be answered by people far more knowledgeable of the law than me. But it is difficult to ignore that all three elements increasingly appear to be satisfied when leaders repeatedly and explicitly encourage followers to interfere with the lawful actions of federal agents. Declaring a federal law illegal in your town or state, does actually not make it so. And ordering your citizens to stop ICE seems to make one liable if harm is done.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com.
https://www.southwestledger.news/opinion/understanding-associated-risks-era-protest
Historically Speaking 