Legal Commentary

The videotaped assault at last month's Critical Mass ride by a rookie NYPD officer against a rider has become a singularly perfect illustration of the many effects of video evidence, good and bad, on civil-rights enforcement that I analyze in my hopefully-soon-to-be-submitted paper. As of this morning, the video had been viewed more than 1.3 million times since it was posted to You Tube last Monday (three days after the ride).

So here are four aspects of video, which I discuss in the paper, that clearly are in play in this incident.

First, the initial post and some excellent comments already considered the primary issue of how this video, seemingly very favorable to the citizen's version of events and unfavorable to the officer's, may be used as evidence at any civil or criminal trial (including a likely perjury prosecution against the officer). And of particular interest to me is how it might be used on summary judgment in the inevitable civil-rights suit, particularly on a motion by the plaintiff for summary judgment, which would force the defendant officer to rebut a video that, one might argue, "plainly contradicts" the officer's testimony, just as the video in Scott plainly contradicted the plaintiff's testimony.

Second, video often leads to non-litigation remediation of whatever violation appears on film; acting in response to an apparently unfavorable video, government likely will drop criminal charges, take administrative action against the misbehaving officer (expect Off. Pogan to be fired very soon), and settle any § 1983 action. Relatedly, the video puts government officials uncomfortably on their heels, forced to defend their officers while also recognizing that, because of the widely viewed video, the public knows about and has formed perceptions and conclusions about the incident; the video forces government to act with some respect for (or at least acknowledgment of) those public perceptions.

Consider the following verbal gymnastics from New York Mayor Michael Bloomberg:

What you could see on the video, it looks ? totally over the top and inappropriate. But the police commissioner is going to, or is in the process of doing, an investigation. I don?t want to prejudice the investigation ? everybody deserves their right to explain what they did, and the police commissioner will give the officer and the other police officials who were at the scene the opportunity to do that.

* * *

In terms of the officer, it certainly looked like ? inappropriate is a nice way to phrase it.

Bloomberg is in a bind. It seems clear that the city is going to be forced to fire the officer, even if its review of the video leads city and police officials to different conclusions about what the video shows. It at least becomes difficult for government to argue the important point that the video must not be viewed in isolation, to argue that other evidence may affect what the video means, and even to put forward its best interpretation of the video, to the extent it departs from the common public interpretation.

Third, this story from The Times describes the efforts of Time's Up, the group that sponsors the Critical Mass rides, to obtain the video from a still-unknown tourist--they ultimately met him in a KFC parking lot on Long Island, learned only his first name, and paid $ 310 to copy the video off his flash drive. The article also describes this as part of a broader effort by the group to collect and disseminate video footage documenting their frequent run-ins with police. Tim Zick (whose work on public protest I discussed here) argues that expressive groups must vigorously use recording technology and new means of disseminating recordings to publicize encounters with police that result in interference with, and limitations on, the group's expression. New technology enablesgroups to control the narrative about their encounter with police and about abridgements of their First Amendment liberties. Through the video and its dissemination, exposing and speaking out about restrictions on the group's speech become part of the group's speech. Time's Up and Critical Mass (which has a lengthy and very contentious history with the NYPD) clearly is winning the PR battle over this incident--largely because of the video and the apparent obviousness of the violation shown.

Finally, this case shows the genuine harm from restrictive state anti-wiretap laws, such as the one in Massachusetts, that prohibit all unconsented-to recordings, even in public and even if the subject of the recording is a police officer engaging in apparent misconduct in the performance of their public functions. Imagine if the Officer Pogan and his partner, having noticed the tourist with the camera, could have ordered him to turn the camera off or confiscated it. Or imagine, as in Massachusetts, if the recording could subject the filmer to a misdemeanor arrest. That is not what privacy rights are supposed to protect and it is not what the First Amendment should permit, two arguments I lay out in the article.

Again, I introduce the paper around a comment from a 2007 article by Ric Simmons (Ohio State), in which he argued that Orwell was wrong, that the development of technology has enable the people to watch government (and call it to account), not the other way around. Right now, the Critical Mass incident illustrates that, in some cases, Simmons was correct.