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Wednesday, December 03, 2014

Video does not prevent "another Ferguson"

A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.

To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.

Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.

Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.

Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.

Posted by Howard Wasserman on December 3, 2014 at 03:13 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


"Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. "

Grand juries are a tool of the prosecutor, full stop. Somebody pointed out that the non-indict rate for federal grand juries is 0.01%. That means that 99.99% of the time, the grand jury does what the prosecutor wants. Who works with and for the police.

What other human institution has a 99.99% reliability rate?

As for body cameras, remember that this wouldn't have been a blip on the news if not for being filmed. The first step is to film all police interactions. Put that in the public eye.

Posted by: Barry | Dec 5, 2014 7:47:14 AM

That should be "arm" around his neck.

Posted by: Howard Wasserman | Dec 5, 2014 7:13:49 AM

As to "one case"--Maybe, but I would refer you to Corey's CoOp post (which I link to in a different post) with several other videos, none of which resulted in significant criminal punishment and most of which did not result in any prosecution at all. Yes, there are civil actions, actions against the department (including by DOJ). But plaintiffs are not doing much better in video-based § 1983 actions. And there is a nice question whether criminal liability is significant and reliance solely on civil suits is insufficient.

Plus, what seemed to make the Garner case different was that (much like Rodney King) the video seemed far less ambiguous than many videos do. It was complete, no one seriously disputed the officer had his hand around Garner's neck, and while Garner was not cooperating, he was not fighting back or otherwise posing a threat to the officers. Oh, and he was being arrested for selling loose cigarettes and there is no question that anyone thought he was a dangerous felon.

As to Joe's last analogy: Making something illegal by itself does nothing, unless people are punished for doing the act in spite of the prohibition. If wrongdoers are rarely-if-ever punished (or even prosecuted), then no, making something illegal doesn't do anything.

Posted by: Howard Wasserman | Dec 5, 2014 12:17:20 AM

"On a multi-member body, no, it does not change the outcome."

It didn't here, if "the outcome" is a true bill, but in some other case, it very well might. It might even in this very situation affect a civil suit, internal reactions including sanction of the officer in some fashion and probably affects how some -- even some often not very sympathetic to charges of police brutality -- react. And, what Asher said.

This sounds a bit like pointing to crime and noting making something illegal doesn't do anything, since people still commit them.

Posted by: Joe | Dec 4, 2014 11:48:14 PM

"[Video] obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case)."

It's just one case. I would think that in the aggregate, widely circulated videos would make it harder for local prosecutors not to recommend indictments. The video in this very case could lead to a federal prosecution. (I don't understand press commentary to the effect that a civil rights prosecution can only go forward on a theory of racial discrimination; under 242, can't DOJ prosecute for use of excessive force/unreasonable seizure?) It could make an outcome-determinative difference in a civil suit. And, it could lead to legislative action on the local or state level. Already, it's galvanized a community in ways that are harder for unsympathetic observers to discount than in Ferguson.

Posted by: Asher | Dec 4, 2014 1:02:16 AM

On a multi-member body, no, it does not change the outcome.

Posted by: Howard Wasserman | Dec 3, 2014 7:57:22 PM

"That the chokehold maneuver is forbidden by department regs did not change anything."

How do we know that? It wasn't enough. But, what does "did not change anything" mean? Let's say, e.g., 12 jurors needed to vote and it changed the minds of five of them, but not enough. Does this "change nothing"?

Posted by: Joe | Dec 3, 2014 7:54:17 PM

The fact that the grand jury did not in the Garner case bring a true bill doesn't tell me much on how much cameras, especially official ones as compared to the chance of a random onlooker having one, will across the board do to deter. Things deter, they rarely deter completely.

Also, one thing to do here is make sure what the camera shows are given some exposure, such as civilian review boards, public officials like local district council persons who have a megaphone and so forth. Again, one thing is not a panacea. "Significant change" usually requires more than one thing.

Finally, I don't know how much, but if the officer involved is going to be sanctioned after the fact, including possibly losing jobs or even pay for a significant amount of time, again, it is a bit unlikely to me that it won't deter to some degree. Police don't like losing pay, e.g., and even if they are dealing with repeat offenders they deem troublemakers, they are likely for personal reasons alone change their actions some.

Posted by: Joe | Dec 3, 2014 7:51:26 PM


You left out one very important card the DA holds in New York: confidentiality. Unlike with Ferguson, where the grand jury testimony was able to be made public and the questionable legal tactics employed by the prosecutor called out as such, grand jury proceedings in New York are sealed. The public will very likely never know what got told to that grand jury.

Posted by: AnonNY | Dec 3, 2014 7:07:37 PM

Andrew, it's been clear to me for a while that prosecutors hold far too much power, and unaccountable power, in our society.

Posted by: Barry | Dec 3, 2014 7:04:02 PM

Doug: It depends on what effect you're talking about--accountability (because it is easier to sanction the officer when there is video) or deterrence. Only the latter depends on the officer being aware that he is being recorded.

Posted by: Howard Wasserman | Dec 3, 2014 6:23:08 PM

Was the policeman in the Garner case aware that he was being videotaped at the time of the incident? If not, then your conclusion about the effect (or non-effect) of videotaping would seem to be amiss. Even if he was aware, surely there is going to be a greater impact from the knowledge that there is an official videotape made from his official body cam versus some unofficial civilian tape. Indeed, many officers think that it's illegal for civilians to tape them and so they may not care about such tapes being made.

Posted by: Douglas Levene | Dec 3, 2014 6:15:35 PM

In an interesting(?) twist, the videographer of the incident was indicted on weapons charges.

Posted by: JPC | Dec 3, 2014 5:49:59 PM

Former NY Court of Appeals Judge Sol Wachtler said district attorneys now have so much influence on grand juries that "by and large" they could get them to "indict a ham sandwich," according to reporters who interviewed him for the Daily News in 1985. Few who have worked in NYS prosecutors' offices would argue with that observation. The District Attorney holds all the cards: essentially unfettered access to police witnesses; control of the proceedings; complete discretion as to charging the jury. So how is it that in the most enlightened, worldly and progressive city in the world, a police officer recorded on videotape violently arresting a man for what at worst could be called a "quality of life" offense gets no true billed? An officer who uses an illegal chokehold, on a man who was not hurting, or threatening to hurt anyone else? An officer whose chokehold killed Eric Garner in an act ruled a homicide by the medical examiner? An officer captured on tape failing to yield at all in subduing Garner, as Garner gasped that he couldn't breathe? This result might reasonably have been expected in Texas. But New York City? This is disheartening, embarrassing and shameful. And your point about police cameras is astute and depressing at the same time. What will it take?

Posted by: Andrew Barovick | Dec 3, 2014 4:30:09 PM

Another grand jury presentation unrepresented in the history of grand jury presentations. We don't need video cameras we need private prosecution of crimes by public officials.

Posted by: brad | Dec 3, 2014 4:09:23 PM

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