« Preventive Detention | Main | Thoughts on Work-Life ImBalance from Those Left Behind »

Tuesday, July 08, 2014

Determining the effect of video

Just coincidentally, three stories are simultaneously in the news involving potential police misconduct caught on video. The recordings are after the jump (these are partial, although fuller recordings of some are available):

1) A California Highway Patrol officer (Erik Estrada never did this) takes a woman to the ground on the side of the highway.and repeatedly punches her, including in the head. The video was taken by a passing driver. The matter is under investigation.

2) A South Carolina state trooper arrests Sam Montgomery, an NFL player, for driving more than 25 m.p.h. over the speed limit. The officer threatens to TASE Montgomery for not cooperating. This is dashcam video. The trooper was suspended for failing to treat Montgomery with the expected courtesy.

3) A Lafayette, Indiana police officer shoves a man in a wheelchair with two hands, causing the chair to tip over and the man to go sprawling on the sidewalk. The shove occurred after the man rode over the officer's foot while departing an encounter with the officers, who had been called to the scene when the man allegedly told officials at a school that he had a gun. The department sought to fire the officer, but a civil service board reduced the punishment to a 30-day suspension without pay, demotion, and probation. This is dashcam video.

These three stories tell us a few things about video and its role in parsing events.

First, it should call into doubt the argument that allowing citizens free-range to video police in action will change officer behavior, making them over-cautious because of how things will "appear" on the video and the snap judgments people might reach. But video in two of these cases came from the officers themselves and, even knowing they were being filmed, they still engaged in some, at least, questionable behavior. So if officers are threatening and shoving people knowing they are being filmed by their own cars, there is no reason to believe that thei behavior will change by the possibility of being filmed or recorded by someone else. And that is before any argument that we want the chilling effect that the threat of video might have on officers.

Second, these videos show why the Supreme Court was wrong in its treatment of video on summary judgment in Scott v. Harris and this past term in Plumhoff v. Rickard. The videos do not "speak for themselves," as demonstrated by the wide range of responses to them, responses that seemingly confirm the Kahan thesis about how personal characteristics and political preferences affect perception of video. There likely is more that each video does not show or fully contextualize. If we would not grant summary judgment in favor of the arrestees in any of these cases (and I doubt we would), then we should not grant it in favor of the police in other video cases.

Third, I have to admit to feeling some sympathy for the trooper in # 2. Reading press accounts, it sounded like the officer simply started out acting in an overbearing and overofficious manner. But in watching the video,  Montgomery is not following the officer's instructions to put his hands behind his back with his palms up in the air, keep his feet apart, and face away from the officer. The reason appears to be not resistance but confusion about what the officer wanted and how to do several things at once (try putting your hands behind your back with palms up--it's not a natural position). So while the officer perhaps jumpted to the TASER pretty quickly, it sometimes is hard to distinguish confusion from disobedience. Of course, given my political and social views, my viewing the video in that way flies in the face of everything Kahan, et al. would have predicted.

And now the videos. Draw your own inferences as if you are a juror, think about inferences if you are a judge on a motion for summary judgment.

1)

  

2)

  

3)

 

Posted by Howard Wasserman on July 8, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink

Comments

"First, it should call into doubt the argument that allowing citizens free-range to video police in action will change officer behavior, making them over-cautious because of how things will "appear" on the video and the snap judgments people might reach. But video in two of these cases came from the officers themselves and, even knowing they were being filmed, they still engaged in some, at least, questionable behavior. So if officers are threatening and shoving people knowing they are being filmed by their own cars, there is no reason to believe that thei behavior will change by the possibility of being filmed or recorded by someone else. And that is before any argument that we want the chilling effect that the threat of video might have on officers."

I disagree with your reasoning. You are making blanket statements about the behavior of all people, and then looking at the behavior of some. As any police officer could probably tell you after you buy them a beer, some people will be really stupid, even under circumstances where they're almost certain to be caught.

Posted by: Barry | Jul 8, 2014 1:38:19 PM

Here is a URL to a brilliant example of differing experiences framing responses to videos of police:

http://www.youtube.com/watch?feature=player_embedded&v=IlY9C6pzxKc

The link was embedded in a Reason.org "Hit & Run" blog entry posted by Zenon Evans. Individual experience, point of view, etc necessarily are the context for our interpretations of video evidence. We all have presuppositions that are starting points for crafting our understanding of the events in this sort of video. I wager that "Rob Hustle," the author of the above linked rap over remix of police videos, has a very different starting point than any of the Supreme Court Justices who evaluated the high speed chase video in Scott v. Harris.

Halting the exploration of deadly force constitutional tort claims in summary judgement when much of the event is captured on video seems unfair to the plaintiff. A jury, as finders of fact, should have a crack at these cases. Perhaps the answer may be state statues that weaken state tort immunity for law enforcement officers to enable more common law tort suits rather than Federal 1983 actions.

Posted by: Don | Jul 19, 2014 4:24:38 PM

Post a comment