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Thursday, August 14, 2008

Another police video and some legal questions

Dave Hoffman at CoOp gives my paper on video evidence a nice shout-out (thanks, Dave). He then reports on a new video on YouTube of a police/public confrontation. In it, a man (apparently a staffer for Democratic Washington Governor Gregoire) is recording a press conference by Dino Rossi, GOP gubernatorial candidate, at which Rossi is accepting the endorsement of a police-officers guild. The recorder is asked to leave and physically pushed out the door by someone who appears to be a guild member or just someone working for the Rossi Campaign, who apparently then tries to grab or confiscate the camera. A further encounter then ensues with a uniformed officer who is called to the scene, demands the taper's ID, and threatens him with arrest for disobeying a "lawful order."

Dave says, and I agree, that "if we showed this interaction to a demographically diverse sample of the population, individuals' views of who was in the right would be motivated by cultural orientations." And I agree that, at least initially, there was no colorable constitutional claim here. I think I may have to work this video into the paper as another illustration (I list about eight examples in the Intro, then come back to them throughout the discussion), because it illustrates some different issues, after the jump.

First, it is important to understand the "evolution" of a police/public confrontation. In general, I would say that a campaign event in a private space is entirely private and subject to control (here, by the Rossi campaign) as to who can be present. So, based on what we know at this point (note how the video does not and cannot tell us the entire story), I think the initial demand that the filmer leave was appropriate, as was the initial act of removing him from the building. But things change when the officer tried to make the guy stop recording or when he tried to grab the camera. The First Amendment protects the liberty to record encounters on the public streets (the last part of the paper is devoted to identifying the basis for that liberty, as among the Speech, Press, and Petition Clauses). And that right to record applies regardless of the lawfulness of the encounter recorded (the officer initially moving the filmer outside and away from the building); there must be as much liberty to record a lawful encounter as to record one showing wrongdoing.

Second, video seems to drive everyone's temperature up, actually precipitating or escalating confrontations. Would the Rossi people have cared that a Gregoire staffer was in the room but for his filming it (as Dave notes, probably in the hopes of catching a gaffe-some Macacca moment)?

Third, and the converse, this incident shows why video ought to have the opposite effect--to lower temperatures and slow things down. Rossi cannot be happy with the attention this story has garnered. Regardless of whether he was within his rights to remove the filmer, the video (on one interpretation) seems to show his goons pushing people around; that is not an image Rossi wants in the public. The recent practice of kicking unwanted people out of campaign events is disturbing; seeing such tactics on video brings them to life. Regardless of how subjective the video's meaning is and how dependent on cultural cognition, there is no question that it is powerful and transformative, presenting a message (whatever message the viewer takes from it) that sticks with the viewer. This incident also demonstrates why there must be a liberty to record and why the police cannot confiscate or prevent individuals from recording public encounters with police. Even accepting that video is not conclusive and unambiguous in its meaning (because the meaning will depend on the individual interpreter), it still has persuasive and evidentiary force in litigation and in the broader public debate. Effective litigation and public debate demand the availability of video proof.

Fourth, in the paper I discuss non-litigation uses of video (similarly culturally determined though they may be), especially in government decisions to settle civil-rights suits and to take administrative steps in response to the events depicted, notably by disciplining the officers involved. But I think this example shows the need to elaborate on the use of the video by one other constituency--the Public that watches these videos (this one has been viewed more than 20,000 times in about two days) and forms opinions about the events depicted. Public perception and reaction must be accounted for in any response to the video--in decisions whether to discipline officers or whether to settle litigation or whether to defend the officers and conduct involved. In this case, reaction to the video must come from Rossi himself, in explaining and defending the decision to remove the filmer. The potential impact of the video is not on official decisions about litigation or law-enforcement policies, but on how the public will view Rossi as a candidate for high public office. In formulating a response to the video, Rossi must take into account the likely public reaction to the video and how best to explain it while keeping the best light on his candidacy.

Posted by Howard Wasserman on August 14, 2008 at 07:41 AM | Permalink

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Comments

Howard,

I'm not sure I follow the difference between the rule the court adopted and the rule the court claimed to be adopting. Are you referring to the efforts of SGB and RBG to blunt the majority's rule?

Posted by: Orin Kerr | Aug 14, 2008 5:53:06 PM

Orin:

That is true. And in many of these cases (which I talk about in the paper), the substantive legal rule will demand interpretation of the video that will hinge on cultural cognition. Part of the problem with *Scott* is that the rule the majority actually adopted would not hinge on cultural cognition, but the rule it claimed to be adopting would still hinge on culture viewpoints (you can see this discrepancy play out in an 11th Circuit high-speed chase case decided a couple months after Scott, called Beshers v. Harrison).

The other thing that this example calls up is that the use of the video will not be within a strictly legal framework, but also within a political framework. Regardless of the applicable legal rule, if enough viewers interpret (culturally or otherwise) the video to "look bad," that perception must be taken into account.

Posted by: Howard Wasserman | Aug 14, 2008 4:04:16 PM

Howard,

Thanks for the response. I guess it seems to me that the interpretation of pretty much everything controversial is "culturally oriented," video included. But as I wrote in my long blog posts responding to the Kahan/Hoffman/Braman article, whether the interpretation is culturally oriented in a legal sense depends entirely on the relevant substantive law. You could pick a substantive legal standard that makes the interpretation hinge on cultural cognition, or you could pick a substantive legal standard that does not.

Posted by: Orin Kerr | Aug 14, 2008 3:55:54 PM

What I meant by that phrase was whether the officers were legally entitled to remove the filmer from the building (or whether Rossi was entitled to have the officers remove the filmer). I was trying to make a point about the right to video encounters in public, regardless of whether the encounter depicted was lawful or not.

I agree we do not *need* the video to reach different (probably culturally oriented) conclusions about some event. My point (and the point of the Kahan/Hoffman/Braman work) is that when we *do* have video (as we ever-more freqeuntly do), the interpretation of it is culturally oriented.

Posted by: Howard Wasserman | Aug 14, 2008 9:17:17 AM

What does it mean to "be in the right"? If it means, "who was acting like less of an ass," or simply "who was acting in a better way," the mere fact that one guy was a police officer and the other guy was working for a Democratic political campaign trying to make the Republican candidate look bad is more than enough to generate different views of who was "in the right" based on cultural orientation. I'm not sure we need the video for that.

Posted by: Orin Kerr | Aug 14, 2008 9:10:14 AM

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