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Wednesday, April 14, 2010

Video evidence and police misconduct

I missed this when it happened. But back in March, after Maryland beat Duke in basketball, Maryland fans took to the streets, resulting in a major clash with police on horseback and in riot gear. One student was seriously injured when, according to sworn statements from the officers, he attacked several mounted police officers, causing them minor injuries; the horses then kicked the student, causing his injuries.

Well, it turns out, that might not have been exactly how things went down. See it with your own eyes (H/T: Deadspin)

Once the video came out, of course, one officer was suspended, word came out that two others might be fired, and department supervisors are talking about how shocked and disappointed they are in how their bad-apple officers misbehaved. As always, of course, the video cannot tell the full story, such as whether the student said something that caused the police to attack him as they did. But there does seem to be a gap (to put it intentionally mildly) between the events most people see in the video and the events described in the officers' statements.

Part of my article on video evidence and civil rights enforcement, focused on the need to recognize a liberty in members of the public to record public events, particularly encounters between citizens and police. Public recording balances power of government (which may be doing its own recording) and citizens by enabling all to be the source of video evidence. The possibility that someone may be recording should (at least we hope) deter police from engaging in abuse or other unconstitutional conduct. Or we at least hope it would deter them from telling a story after the fact that can be "blatantly contradicted" by the likely common understanding of video (especially among the public) that eventually may turn up.

Police long have assumed that they prevail in any he-said/he-said dispute over what happened in a police-citizen encounter and that the word of the citizen involved in an encounter will not win out over his version of events (and case outcomes back this up). Video (even if not fully conclusive as evidence) alters the nature of that dispute, by providing additional probative evidence (beyond the arrestee's word) that at least calls into question the officer's version of events and challenges the false statements. If the video looks bad enough and becomes public enough, the pressure gets put on on top-level officials to take personnel action against the officers involved. At a macro level, the possibility of video should cause officers to hesitate before filing false reports and affidavits; at an individual level, it could begin costing officers their jobs and some money in § 1983 litigation.

This is no longer an uncommon occurrence, either. This situation (officer tells official story under oath, video emerges seeming to contradict story, officer is punished) identical to the events of a New York critical mass bike rally in summer 2008, as well as several other incidents I discuss in my paper.

Posted by Howard Wasserman on April 14, 2010 at 08:15 AM in Constitutional thoughts, Current Affairs, Howard Wasserman, Sports | Permalink

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