Legal Commentary

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.