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Tuesday, July 29, 2008

"Pervasive Surveillance" and the Limits of Video Evidence

During last Friday night's Critical Mass bike ride in New York, a uniformed NYPD officer, seemingly out of the blue, tackles a rider, sending him flying off his bike. The rider (the last of a pack to ride past the officer, who was standing in the middle of the street was arrested and held on charges of attempted assault and resisting arrest. The event was caught on video and the video uploaded to YouTube, where it has been viewed more than 113,000 times. (H/T: Frank Pasquale at CoOp). This is a great example that I have to add to that paper on video evidence.

Frank argues that the fact of video is a good thing, that if "the moment hadn't been caught on tape, it's quite possible the victim here would be facing criminal charges, and the policeman in question could be plotting another assault." This reflects an argument that Ric Simmons made in an article last year, that Orwell's vision was wrong, because the reality of modern technology is that "it is the people who are watching the government, not the other way around." Both are correct, as far as it goes. This is one of those examples that "looks bad;" the officer was placed on modified assignment and we can expect the video will persuade the prosecutor to drop any charges and the City to settle any subsequent § 1983 action.

But this example also illustrates the limits on video as proof, if this incident ever becomes the subject of criminal or civil litigation. While our brute-sense impression of the action depicted in the video is that the officer clearly used unreasonable and excessive force, there is much the video does not necessarily show. Why did the officer pick this guy out and what was his reason for acting (Frank notes this was "seemingly without provocation--the video just does not tell us), which will be a key question in litigation? Did the rider say something to the officer? Did the officer reasonably fear the rider was coming at him? Was the rider carrying something that caught the officer's eye (given the video's angle, we never see the front of the rider or his arms)? From the video alone, we simply do not know. And those gaps must affect how we use the video as trial evidence, as evidence on summary judgment, or simply in evaluating the conduct of everyone involved. This is what I and others find so problematic with the Supreme Court's decision in Scott v. Harris, the high-speed-chase video case. The majority too-readily accepted that the video told the whole story for purposes of summary judgment, not considering limits on what the video can accurately and fully show.

This incident turns Scott on its head, because the video viscerally shows not justifiable force, but excessive force. In my current, longer project on video evidence, one issue I raise is how a court on summary judgment would and should deal with a civil-rights plaintiff's motion for summary judgment against a police officer where the video appears highly favorable to the plaintiff/citizen. It is easy to watch this video and conclude that the officer obviously used excessive force (just as it was easy to conclude the opposite in Scott). And it may be easy to try to decide we can get there without even the need for fact-finders. But if we stop to consider what the video does not show and the video's dependence on other evidence to tell a complete story, summary judgment becomes inappropriate. And if it does get to trial, the court must carefully ensure that the jury recognizes the limits of the story told by the video and considers the video in context and in conjunction with the other evidence that completes the story. Of course, the City probably will settle any § 1983 action, in part because it anticipates the visceral reaction a jury will have to the video.

The Critical Mass example shows that the opportunity and power of people to videotape the events they witness provides additional evidence to use in determining what happened and whether a constitutional violation has occurred. It thus is important that the public retain broad rights to record such video footage. Frank (and Ric more generally) are correct on this. But when video becomes evidence to be used in litigation or government decisionmaking, those inherent limits on video as an evidentiary source cannot be ignored.

Posted by Howard Wasserman on July 29, 2008 at 07:54 AM in Article Spotlight, Culture, Current Affairs | Permalink

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Tracked on Jul 29, 2008 9:33:46 AM

Comments

Puffed up legalese "sides" arguements aside..do you have EYES in your heads??

A) The video shows the cop aggressive and looking for someone to take it out on.
Body language, hostility..
B) The video shows the bikers all smiling, and having fun.
Including the no threat, no gestures, no weapons, both hands and bare arms on his bike handles, rider.
c) The video shows the cop says something to his partner, it is VERY CRUCIAL to have a pathologist inspect and the sentence included as his premeditation!
He may try alleging some perceived threat by the biker who, does not turn his head, nor harrass by aiming his bike too close.. NOTHING, but we can CLEARLY see the cop angry and talking before deliberately choosing a person to knock over.
d) how many MILLIONS of cops claim this bogus catchphrase of : " Resisting arrest" when they are beating you on the ground ??WHEN is anyone going to STOP this??
e)The partner also turns and BOTH are looking at the chosen victim before , the biker is nearly past safely.. NO action physically toward the officers, NOTHING. Yet after words said to each other, the cops walk toward the victim, and the cop knocks him over and then..
f) zero "resisting arrest" zero "assaulting an officer", of course, the complete maniacal CRIMINAL opposite.. ASSAULT and false arrest, brute force, and falsifying crime by the police. Obvious. Even clever lies could not refute what we see, and which happens so repeatedly.


I truly hope this person on the bike, sued for damages and for criminal assault. I cannot fathom the NYPD allowing this rotten criminal they employed and trusted, to remain a police officer. And there is NO REASON he should not receive the same harshest sentencing any person wearing a gun and a stick and handcuffs and tasers, and choosing to be violent and angrilly assault a passer-by would get.

Posted by: citizen | Feb 4, 2009 7:20:43 PM

I'm not sure why this is different than any other undisputed fact. The portions that you can clearly see are undisputed. No different than if only one person in an accident were looking forward at the time of the accident and testifies to what she saw. If there are additional facts presented that could co-exist with what we see and create a legal issue, then no summary judgment. But I don't see why a judge would allow a jury to decide whether the biker knocked the officer down. And I can't imagine how this could possibly be excused by a car being behind him. Keep in mind that an officer's actions are judged on an objective basis. We can't see the guy's right hand, so maybe if the officer said something about that . . .
but even that should not cut it if the undisputed testimony shows that the biker was conscious and moving after the fall. Neither officer moves to secure anything from the biker. The first officer casually picks the bike up and the second officer literally saunters over.

Posted by: former S. 1983 defense lawyer | Jul 29, 2008 10:20:30 PM

My argument is that, to the extent there is genuine inconsistency between the video and witness testimony, we have a fact issue to be resolved at trial. Then the jury can decide (as Michael does) whether the officer's statement that the biker knocked him down is a "clear untruth.: But the point of *Scott* is that video evidence trumps testimonial evidence--that the court can ignore testimony that is "blatantly contradicted" by the video. And when the court does that, it frees itself up to grant summary judgment and take the case away from a jury trial.

And Michael's point about the ambiguity of the officer's other explanation perfectly captures my argument--there is much the video does not show (and much most videos do not show), so it cannot control the case in total isolation.

Posted by: Howard Wasserman | Jul 29, 2008 3:09:50 PM

Thanks for this post - you know there has to be two sides to every story.

My question: How does the video "speaking for itself" (or not) get affected by the account of those involved?

Smoking Gun has the officer's statement, which contains at least one clear untruth (that the biker knocked the officer down), and one statement that gives an explanation that is at least ambiguous on the video (the biker was swerving, causing cars to stop) - it is ambiguous because there are no cars anywhere near the takedown spot, there are many bikers, and the cars appear to be stopped way behind the traffic. BUT, it's possible that there are cars coming right behind this one biker, who could possibly be the very last biker in the group and thus the one who is technically stopping traffic.

http://www.thesmokinggun.com/archive/years/2008/0729081bike1.html?link=rssfeed

I suppose my question is more rhetorical, but comments on how video ties to written or verbal statements would be interesting. I know Orin Kerr did several posts on this issue in "don't tase me" - would that analysis have been different if the officer swore that the driver had actually pulled out a gun? Or do we allow for the ambiguity of perception?

Posted by: Michael Risch | Jul 29, 2008 2:27:05 PM

Orin:

I think it depends on what the 4th Amendment rule is. Did the Court create a per se rule (running from police above the speed limit=placing people at risk=force justified)? Or did it create a balancing of considerations (as Scalia hints, Ginsburg insists, and lower courts such as *Beshers v. Harrison* seem to accept)? Then it becomes about the procedural posture of the case (and this is my main problem with the decision). If *Scott* requires some sort of balancing, then, yes, the video alone might resolve the question, but not on summary judgment. It should have been for the jury to interpret the video and decide whether what they saw satisfied that rule. If it is a per se rule, then maybe summary judgment was appropriate based solely on the video.

I would say Scott and this case are different sides of the same coin of the danger of over-reliance on video. The problem in Scott was unrecognized potential disagreement as to what the video shows and means; the problem here is that the events on the video are pretty clear, but their meaning is not.

Andy:

I am not sure if your question is directed to me or Orin. If to me, I am in agreement with you--we cannot over-rely on the video to the exclusion of all else. My point is that *Scott* at least lays the groundwork for lower courts to do that, particularly on summary judgment--and some courts have. Although I doubt a court would grant summary judgment for the plaintiff based on this alone.

Posted by: Howard Wasserman | Jul 29, 2008 2:04:12 PM

the fact that a video can accurately "speak for itself" *on some issues*, i meant.

Posted by: andy | Jul 29, 2008 10:55:39 AM

"This is what I and others find so problematic with the Supreme Court's decision in Scott v. Harris, the high-speed-chase video case. The majority too-readily accepted that the video told the whole story for purposes of summary judgment, not considering limits on what the video can accurately and fully show."


are you suggesting that, if there were evidence (testimony from cop or other witness) that the rider were holding a gun in front of him, and the video did not show it, that Scott would require a judge or jury to find that the video "speaks for itself" and that the new evidence must be ignored?

i mean, i could see why someone would say this video "speaks for itself" on some issues; e.g., if you asked me if the cop used physical force against the biker, I'd gladly say "the video speaks for itself." whether that force was justified or not is a separate question, of course.

more generally, i don't see why the fact that a video can accurately "speak for itself" necessarily suggests that we must turn a blind eye to everything else that may be pertinent to determining what happened, or that the Scott case is properly criticized for relying on video evidence.

Posted by: andy | Jul 29, 2008 10:42:47 AM

P.S. Sorry for the bad formatting -- it seems that the html tags have been disabled, and my italicizing of the first paragraph didn't come through.

Posted by: Orin Kerr | Jul 29, 2008 9:33:31 AM

This is what I and others find so problematic with the Supreme Court's decision in Scott v. Harris, the high-speed-chase video case. The majority too-readily accepted that the video told the whole story for purposes of summary judgment, not considering limits on what the video can accurately and fully show.

But this depends on the substantive legal
rule is, right? In Scott v. Harris, for example, the Court
picked a Fourth Amendment rule that did not require
knowledge of "the whole story." Thus, the fact that it
relied on the video tape was okay: the video answered
what was relevant for the legal rule applied in that case.
The broad principle here, i think, is that the limits
of video evidence depend on the substantive legal rule.
The choice of legal rule determines how useful the video
evidence is in the context of that case.

Posted by: Orin Kerr | Jul 29, 2008 9:32:04 AM

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