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.