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Tuesday, December 11, 2007

Video Evidence and Civil Rights Litigation

This video, of a Utah highway patrol officer tasering an uncooperative, but non-resistant driver who refused to sign a traffic citation, has had more than 1.5 million views on YouTube (the good stuff begins around the 2:15 mark). Orin Kerr has written a couple of things at the VC. In yesterday's post, Orin suggests that "the video can plausibly be viewed two different ways depending on what parts of the video you focus on when you're watching."

Orin's basic argument--this video can be viewed multiple ways or can tell multiple stories leading to different conclusions by reasonable people--reaffirms my belief that the Court was wrong last term in Scott v. Harris in granting summary judgment based on the video and the insistence that all evidence must be viewed "in light of the video." My fellow-GuestPrawf Tommy Crocker previously criticized Justice Scalia's simple reliance on the video in that case. I have an essay coming out in Judicature next month criticizing the procedural component of that decision.

The argument about this video captures a broader point about the use of video evidence: It is not the objective, clear, certain proof that many believe it to be, but is, like any piece of evidence, subject to interpretation and multiple inferences. How we look at a video, which part of the video we look at and focus on, when we look at the video all affect how we interpret it and what inferences or conclusions we draw from it. And in civil litigation, interpretation and inference-drawing should be left for the jury. So when the driver in this video files his inevitable Fourth Amendment damages action, we only can hope the court does not rush to grant summary judgment for either party based on nothing more than the video. Rather, recognizing the possibility of different, reasonable conclusions based on the same video, it would be the worst example of the court using summary judgment to short-circuit the clear role of the jury based on the court's own viewing.

Orin also brings up a second point, one that reflects both the power and influence of video evidence of police/citizen encounters and the limits of private civil rights litigation as a tool for reforming government conduct. He argues that the video suggests the officer did nothing to keep the situation from escalating; notably, he was either unable or unwilling to explain to the driver what was going on, why he was stopped, etc. That shows an officer not doing his job appropriately--as Orin writes, "we would all agree that the officer did a terrible job in the traffic stop on the whole; that guy needs a desk job pronto." But that the officer did a bad job does not mean he violated the Fourth Amendment, which is the only thing with which a court hearing the driver's civil claim will be concerned. But the presence of the video, which members of the public are able to see and draw conclusions, should prompt non-litigation-imposed changes by the relevant government agency--perhaps reassigning or firing this officer, perhaps adjusting training programs to better enable officers to handle these situations, perhaps both. Either way, because so many have seen this video, we can attain the public benefits that would come from constitutional litigation, regardless of the outcome of that litigation and any damage award given to this plaintiff.

Posted by Howard Wasserman on December 11, 2007 at 01:33 PM | Permalink


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I think Jessica raises an interesting point. My guess is that the difference is that a single videotape of an incident is seen as an unadorned, unedited, complete, unbroken--and thus unbiased--representation of the event. By contrast, everyone knows/thinks/believes that documentaries are edited and spliced to present a particular, and biased, perspective.

And at a macro level there may be something to this. Take, for example, the footage of President Bush in the classroom on 9/11 that was included in "Fahrenheit 9/11." That made Bush look bad, in part, because of the context in which it was included, the other scenes presented around it, and Moore's voice-over. The unedited, single 7-minute police video has none of those things to affect its meaning or how its meaning is understood.

Posted by: Howard Wasserman | Dec 16, 2007 8:28:33 PM

I have often wondered why videotaped evidence of the type discussed here is considered so dispositive when offered in court (and usually when taken by police, although sometimes also by just a bystander). This is compared to documentary films and reality television, which are all the rage the past decade and which are considered by most audiences to be a form of advocacy, entertainment or even propoganda. As Orin and Howard say, all texts are open for interpretation whether or not they are made for "informational purposes" only (whatever that is -- are there enough neutral facts in film texts to be helpful from the perspective of knowing what "really happened"?) or to "tell a story" (which usually means from a particular point of view and not others). Of course, this is not a new idea -- literary and film critics have been talking about this for decades, if not for centuries (in the case of literature). See http://papers.ssrn.com/sol3/results.cfm?RequestTimeout=50000000, in particular Filmmaking in the Precinct House and Judges as Film Critics.

Posted by: Jessica | Dec 16, 2007 3:19:10 PM

An interesting video, both for your point about the failings of Scott v. Harris and about the general unreliability of eyewitnesses -- these two failings are related in an important way, I think, but that's not the point of this post. On the eyewitness point, after the 2:15 tasering, the officer offers explanations to the arrestee's wife and to another officer who arrived on the scene which appear to be contradicted by the videotape. To the arrestee's wife, he explains that he tasered the driver because he told him that he was placing him under arrest and the gentleman refused to comply. Watching the video, however, he never informed the driver that he was placing him under arrest until after he tasered him (although the officer may rationally believe that, by telling him to turn around and put his hands behind his back, he is informing him that he is under arrest). And to his fellow officer, the officer stretches the truth even more, telling him that he told the driver that if he did not comply he would taser him, words which never came out of the officer's mouth. Thus, even only a short seven minutes after the event (possibly longer, actually, because the tape was edited), the officer is recounting the event as he, in a self-interested way, may wish to recall, but which is not confirmed by the videotape. Possibly the officer is simply lying, but more likely he is filling in gaps in a way that makes sense to him, and also reduces his culpability.

Posted by: Alex R. | Dec 12, 2007 11:53:08 AM

This is a rare chance to see "what actually happened" so that the judiciary can form its own conclusions. In as much as a video records all factual aspects of a past temporal event with greater accuracy and precision than any words can, other testimonial evidence, i.e. opinions, must be viewed in light of the video maintaining its function as the touchstone.

Your point that a video may be subjected to multiple interpretations may be valid, but I think you chose a weak example in which to advance it.

Posted by: JD/MBA | Dec 12, 2007 11:00:35 AM

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