by Michael Avery
A great deal has changed since I started bringing civil rights suits against the police almost 50 years ago. Some things are for the better, others for the worse. Unfortunately, there’s also much that hasn’t changed. The cops are still beating people up, making false arrests, lying to get search warrants, hiding exculpatory evidence, coercing false confessions, conducting improper strip searches, denying medical attention to prisoners, obstructing the right of freedom of speech, and gunning down young Black people at a sickening rate. Maybe these things will never stop. Certainly, they won’t stop completely. These problems have been with us since ancient Rome. “Quis custodiet ipsos custodes,” they asked. “Who will guard the guards themselves?” So, when Paul Wright invited me to write a quarterly column about police misconduct for a new journal, I was initially uncertain how to proceed. Sadly, there’s no magic bullet that can make the problem of police officers abusing their authority go away.
In my column, I’ll talk about how police misconduct and efforts to curb it have changed since I passed the bar in 1970. On the negative side, for example, the militarization of local police departments over the past half-century has been extraordinary. We now see police officers in armored vehicles, wearing helmets and masks and carrying assault rifles and grenade launchers, employed to make routine drug busts. A nationally syndicated photo recently depicted a SWAT team confronting protestors in Ferguson, Missouri. A former Marine described their gear: “They have short-barreled 5.56-mm rifles based on the military M4 carbine, with scopes that can accurately hit a target out to 500 meters. On their side they carry pistols. On their front, over their body armor, they carry at least four to six extra magazines, loaded with 30 rounds each …. They wear green tops, and pants fashioned after the U.S. Marine Corps MARPAT camouflage pattern. And they stand in front of a massive unarmored truck called a Bearcat, similar in look to a mine-resistant ambush protected vehicle.”1 That type of firepower not only goes far beyond what is necessary, it undoubtedly increases tension and the risk of violence. Other examples of the use of military equipment abound. The use of a robot to deliver and explode C4 to take out a sniper, as was done in downtown Dallas in 2016, may foretell a growing mechanization of police work that will be hard to contain. I plan to expand on the problem of militarization in a later column.
This month, let’s look at a change in police misconduct litigation that cuts both ways: the impact of video. In 1970, video or film evidence of incidents involving the police was extremely rare. There might be footage if the media had covered a newsworthy event. In the ordinary case, however, there was no possibility of showing a video to the jury. We tried cases based on witnesses, relevant documents, forensic science, and expert opinion. Sometimes a photograph might shed some light on what happened, but it could only show what existed during the fraction of a second that the camera’s shutter was open. Witness credibility was paramount, and unfortunately too many jurors were inclined to believe that police officers told the truth. White jurors had far fewer reasons to distrust the police than Black jurors, and so racial discrimination in the selection of juries was a major problem. Despite improvements in summoning a more diverse group of people for jury service, race prejudice by white jurors continues to be a significant factor in the trial of police misconduct cases.
Today most people are carrying a video camera on their person because so many people have a smart phone. Add in the presence of CCTV, body cams on officers, and dash cameras on police vehicles, and the likelihood that a video exists of a violent encounter between police and civilians has skyrocketed over the past several years.
It’s obvious that videos can provide significant information to aid in determining what happened in a case of alleged police misconduct. This can be of great assistance to the victims of police abuse. Videos have also gone a long way in changing the public perception of how common it is for police to use excessive force. There’s a risk, however, that judges and juries may assume that a video delivers “the truth” with respect to an event. That can be a dangerous and misleading assumption.
The 2007 case of Scott v. Harris has shaped current attitudes among judges with respect to the reliability of videos.2 In this case, a police officer intentionally rammed a vehicle he was pursuing at high speeds with his cruiser, causing a crash and rendering the plaintiff driver a quadriplegic. The plaintiff asserted that he had posed little, if any, risk to others because the roads were mostly deserted and he remained in control of his vehicle. The officer disputed that, relying on a videotape of the chase. According to Justice Scalia’s opinion for the Court, the tape showed the plaintiff’s vehicle “racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast … swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit … run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up.” The trial court had decided the case on summary judgment, without a trial, which ordinarily would have required the court to consider the facts in the light most favorable to the plaintiff. In the face of the video, however, the Supreme Court ruled that the defendant officer was entitled to win the case. The Court concluded that where a party’s version of events is so utterly discredited by a video that no reasonable jury could believe him, the court should view the facts in the light depicted on the video.
If you read Justice Scalia’s opinion only, you might think there was no other way to view the case. Yet the district judge and three judges on the court of appeals had ruled that the plaintiff was entitled to have the reasonableness of the officer’s actions decided by a jury. On the Supreme Court, Justice Stevens dissented from Scalia’s opinion. He concluded that the video confirmed, rather than contradicted, the need for a jury trial. He noted that the cars that had pulled over to the shoulder of the road had done so due to the sirens and flashing lights on the police cars. He said a jury could conclude those drivers were at no greater risk than those who take such action in response to a speeding ambulance. The tape showed that the plaintiff, although speeding, retained full control of his vehicle, passed cars in front of him going in his direction only when there was no oncoming traffic, and used his turn signal in doing so. The police cars ran two red lights on the tape, but the plaintiff’s car was far enough ahead of the cameras that it was difficult to discern the color of the lights when he went through them. Finally, the video showed no pedestrians, parked cars, sidewalks, or residences at any point in the chase. Justice Stevens said that the reasonableness of the chase was sufficiently in doubt that a jury should have decided the issue.
The decisions of the lower court judges and Justice Stevens demonstrate that a video of dramatic events is subject to interpretation. Different viewers may put more weight on one or another aspect of the video, and may draw different conclusions from the images they see. Each person will bring his or her own values and preconceptions to bear, and that will influence what he or she takes away from a video. The difference between Justice Scalia’s description of the tape and that of Justice Stevens illustrates that there was more than one way to understand what the video portrayed.
Unfortunately, since Scott v. Harris, some federal judges have treated the case as though it means that whenever there is a video that in any way contradicts the plaintiff’s story, the plaintiff loses. In Darden v. City of Fort Worth, Texas,3 plaintiff’s witnesses alleged that heavily armed police officers executing a search warrant for drugs ripped the shirt off a 340-pound man, threw him to the ground, put him on his stomach, choked him, Tased him, pressed his face and neck into the floor and handcuffed him behind his back. Eventually he had a heart attack, went limp, and died. Body cams on two of the officers captured some, but not all, of the events. District Judge John H. McBryde granted summary judgment in favor of the officers, without a trial. He concluded that the video proved that the deceased did not get on the ground when ordered to by the officers, and that the Taser was properly used to get him to the ground. Fortunately, the decision was reversed by the court of appeals. It noted that the video did not portray what had happened in the several seconds before the plaintiff got to the ground. Witnesses had reported that he had been compliant with the officers’ commands, and the tape showed that he had raised his hands when they entered and rolled over onto his face when instructed to do so. The court of appeals concluded that a jury might decide the deceased had not resisted arrest. Judge McBryde may be the type of judge who is looking for an excuse to rule in favor of the police. There’s a risk that a video may give a conservative judge that kind of pretext.
In another example, Patterson v City of Wildwood,4 the plaintiff alleged he’d been wrongly arrested, and that the officer had used excessive force, hitting him in the face after he was unconscious on the ground. There was no video of the event itself. The officer claimed that the plaintiff had not been unconscious but had been continuing to struggle when on the ground, and that the officer only struck him to subdue him. There was a video of the plaintiff in the patrol car afterwards, in which he said he “does not like being punched in the face.” District Judge Renee M. Bumb concluded from the video that the plaintiff had remembered the blow, therefore that he couldn’t have been unconscious, and that she should accept the officer’s story that the plaintiff had been struggling. Accordingly, the judge granted summary judgment in favor of the officer, without a trial. The court of appeals reversed, concluding that the plaintiff’s account was far from “blatantly contradicted by the record.”
Although the plaintiffs ultimately won the right to a trial in those two cases, there are others in which injured citizens have lost their case due to a questionable video.5 In addition, it’s expensive and time-consuming to be forced to litigate an appeal before trial. Not every plaintiff is able to stay the course.
My former colleague at Suffolk Law School, Professor Jessica Silbey, has written several articles expressing concern about the uncritical use of videos by judges. She says:
[F]ilm is a constructed medium. The camera always presents a certain point of view and a frame that includes some images and excludes others. Films are depicted in artificial light and color. From the earliest emergence of film technology, filmmakers and critics recognized that the appearance of reality in films is an illusion based upon conventions of representation, much like the convention of perspective in two-dimensional drawings or the conventions of light and dark in oil paintings. These conventions produce images that resemble and represent reality, but are not reality in fact.6
Silbey points out that video or film is not objective and unbiased, does not have an unambiguous and obvious meaning, and cannot transform a viewer into an eyewitness. The risk is that a judge or a juror may believe it can do all those things.
Despite the limitations of video evidence, it tends to take center stage at a trial or hearing and overshadow other evidence. We’ve seen that when judges rule on summary judgment motions, they can put too much weight on video evidence. Video can also be dangerous when a case is tried to a jury. Jurors as often as judges are inclined to believe that a video represents the reality of what happened. A party opposing video evidence must find a way to expose its weaknesses, by in effect, cross-examining the video by cross-examining the witnesses who present it. For example, one can highlight what is missing from the video that might be relevant. There might be relevant facts that are missing, but which might have been depicted if the video had been framed differently. The video might be unclear—either out of focus, or narratively unclear in the sense that the intent or meaning of actions that are shown could be debated. An advocate on cross-examination can call attention to images and sound-bites that might otherwise be overlooked or forgotten.7
Consider a police video of an interrogation. A prosecutor may offer it into evidence to show that a confession was voluntary and not coerced. If the camera was focused on the suspect, however, the viewer does not have the benefit of seeing the expressions on the faces and the actions of the officers. If the video was only activated to record the final confession, it will not show what led up to it, including what the police may have done to motivate the suspect to confess. If these and similar points are not made by a criminal defendant’s lawyer, a judge may be inclined to conclude that the video “proves” that a confession was voluntary, despite what the defendant may say about how he was treated.
Of course, videos may support what a civil rights plaintiff or a criminal defendant says. Such evidence has been of great assistance to the victims of police misconduct in many cases. As a result, law enforcement officials are highly concerned about the presence of civilian videos. Former F.B.I. Director James Comey made headlines in 2016, when he expressed his opinion that a “‘viral video effect’—with officers wary of confronting suspects for fear of ending up on a video—‘could well be at the heart’ of a spike in violent crime in some cities.”8 That followed remarks he made at the University of Chicago Law School in 2015 that a “chill wind” of increased attention on and criticism of police officers may have led to an increase in crime as officers became less effective.9 As an aside, I’ll note that when those stories appeared I thought that the president should have asked for Comey’s resignation. The head of the FBI had no business suggesting that we should mute criticism of police so that they felt free to “do their job.” I’d like to think that firing Comey earlier in 2016 might have avoided the problems he created in the presidential election.
Multiple manufacturers of body cameras for police aggressively advertise and market their products on the Internet. One such advertisement warns, “With cameras everywhere today, it’s becoming critical for Law Enforcement to have the ability to record their civilian encounters. We have all seen what happens when civilians record officers with their cell phone. Too often these recordings are started late and/or at a bad angle, and do not accurately represent what actually happened.”10 Of course, as we have seen, all the problems that undermine the reliability of civilian recordings, including timing and point of view, exist for recordings by the police as well.
The movement to outfit police officers with body cameras has found great support in Congress. By 2016, more than $41 million had been awarded to local departments for such equipment through the Bureau of Justice Assistance (BJA) in the Department of Justice, with another $20 million authorized for fiscal year 2017.11 The ACLU has also expressed qualified support for the use of police body cameras. It has acknowledged that the issue is a difficult one, and has modified its recommendations over time based on experience as “this complex technology works its way into the messy real world.”12 ACLU concerns include balancing transparency and the need for police accountability against the need to protect individual privacy.
Apart from the utility of video in trials, we might ask whether wearing body cameras influences the behavior of officers. A case could be made that an officer is less likely to violate someone’s rights if he knows his actions are being taped. To date, research on that question has been contradictory. Early studies of small numbers of officers suggested that cameras reduced police use of force and led to fewer civilian complaints. However, a seven-month study in Washington, D.C. of 2,000 officers concluded that differences in use of force, civilian complaints, charging decisions by prosecutors, and other outcomes were too small to be statistically significant.13
The prevalence of a partial video record of encounters between civilians and the police will undoubtedly increase. This will continue to give both sides in litigation over police misconduct a potentially useful tool. Such evidence, however, needs to be used with an awareness of the risk that it can be misleading. As Professor Silbey says, “Every film can tell more than one story and less than the whole story.”14
Michael Avery is Professor Emeritus at Suffolk Law School in Boston. He began practicing law in 1970 and specialized in civil rights, police misconduct, and criminal defense. From 1978 to 2014, he taught at Suffolk Law School. From 2003 to 2006, he was the president of the National Lawyers Guild. He is the author of We Dissent: Talking Back to the Rehnquist Court (NYU Press, 2009), The Federalist Society: How Conservatives Took the Law Back from Liberals (Vanderbilt, 2013), and Police Misconduct: Law and Litigation, West, updated annually since 1978. He has a B.A. from Yale College (1966), an LL.B. from Yale Law School (1970), and studied at the University of Moscow as an exchange student in 1968-1969. In 2015, at age 70, he went back to school and received an M.F.A. from Bennington College in 2017.
1 Paul Szoldra, “This is the Terrifying Result of the Militarization of Police.”
2 550 U.S. 372 (2007)
3 Darden v. City of Fort Worth, Texas, 2018 WL 525640 (5th Cir. Jan. 24, 2018).
4 Patterson v. City of Wildwood, 354 Fed.Appx. 695 (3d Cir. 2009).
5 See, e.g., Poole v. City of Shreveport, 691 F.3d 624 (5th Cir. 2012) (upholding summary judgment in favor of defendants, based on video), where a dissenting judge on the court of appeals wrote a long opinion with specific references to portions of the videotape that undermined the majority judges’ reliance on it.
6 Jessica Silbey, “Cross-examining Film,” 8 U.Md.L.J. Race, Religion, Gender & Class, 17, 18 (2008) (footnotes omitted).
7 These suggestions are made by Prof. Silbey in her cited article.
14 Silbey, op cit at 20.
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