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Monday, September 22, 2008

Converse Video Cases

One of the questions I consider in my video project is how summary judgment courts might respond to videos that appear--on that visceral, emotional level at which video initially works and at which a summary-judgment court (because not a fact-finder) might look at it--to favor the plaintiff's version of events. One answer is that the court will rely on the video to deny the defendant summary judgment, focusing on the video's story to emphasize what facts remain in dispute and why trial is necessary. Another possible answer (the open issue that I talk about at length in the paper) is the extent to which a plaintiff might use a favorable video to obtain summary judgment in his favor. If we accept, a la Scott v. Harris, that a court can decide summary judgment on its own interpretation of a video, this becomes permissible, despite the higher summary-judgment burden on a party with the burden of persuasion at trial.

The Eleventh Circuit in Download 200710988.pdf">Buckley v. Haddock (H/T: Beth Thornburg on the civil procedure listserv) recently provided a third answer--entirely ignore the video in any discussion of the facts while granting summary judgment in the defendant's favor. As the video shows, a handcuffed (and apparently distraught and maybe intoxicated) man sits on the ground and refuses to stand up and get into the police car during a traffic stop, so the officer tases him three times.

But other than mentioning the presence of the video in a footnote at the outset of the opinion, the majority does not even talk about the tape, much less engage with the possible meanings and messages from those images. The majority simply provides a sparse factual account with limited details--the kind of descriptionc you would expect in a case featuring only a written record. In part, this is unnecessary for the majority--the video's apparent story is consistent with everyone's testimony, which the majority concluded did not permit a reasonable jury to find excessive force or lead to the legal conclusion that the law against such use of the taser was not clearly established. On the other hand, seeing (rather than hearing about) the encounter can at least make one hesitate before concluding that the officer acted appropriately--which is why video is so potentially powerful. Instead, it is the dissent that provides exacting factual detail, based on her viewing and understanding of the video as showing a vivid example of at least potentially excessive force warranting trial. We do not get a sense of whether the dissenting judge thought the video powerful enough to justify summary judgment in the other direction.

Two telling things about this decision.

First, it suggests that the use of video, especially on summary judgment, is going to be somewhat malleable, in an unfortunately legal-realist sort of way. Courts insist that video is important, powerful evidence that enhances the court's truth-finding ability--unless it is inconvenient, in which case the court largely ignores it. This admittedly is a charicature of the decision here. But the court's disregard of the video as a storyteller is striking, especially when one sees the video.

Second, tying the case to recent discussions, what are the implications of this decision for police handling of public protest? Does this case mean that force is a permissible response to passive resistance or civil disobedience (compare what Buckley was doing to an abortion-clinic blockade)? The majority tried to temper this by emphasizing the unique context--nighttime, traffic stop, lone officer, side of a highway (although only eight or nine cars pass by during the six-minute encounter). Still, the court approved of tasing someone, already handcuffed, for passively refusing to move on a police order. Note that tasing Buckley did not work--according to the record, the officer only got him into the when a second officer (who had been called prior to the second and third tasing) arrived and the two of them carried him to the car.

Posted by Howard Wasserman on September 22, 2008 at 06:47 AM in Law and Politics | Permalink


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