From: Law.com
By Ben Hancock 7/13/16
SAN FRANCISCO – Viral videos of police shooting victims Philando Castile and Alton Sterling in their final moments have left much of the American public seething, saddened and convinced that deep-rooted racial bias led the officers to fire their weapons.
But as compelling as the videos are—and as important as they have become in the broader debate about law enforcement and race—they rarely have the same decisive impact in court that they have on the way the public perceives an event.
Lawyers who have been involved in police shooting cases and dealt with videos as evidence say that often a case rises or falls on what the camera didn’t capture. Attorneys representing accused officers point to a camera’s technical limitations, or the fact that it didn’t see the angle the officer saw, which can wither a criminal or civil rights case targeting the officer.
Sometimes, the more a video is played in court, the less impact it has, and desensitizing a jury to a video’s violence often emerges as a deliberate defense strategy—as does drawing the jury’s attention to uncertainty around what happened immediately before the camera was turned on.
“The problem is when the video gets started,” said Peter Lesser, a veteran Dallas criminal defense attorney who represents victims of police abuse, because often an encounter is already underway by the time the camera rolls. “From the standpoint of a civilian, they don’t know necessarily when to start the video.”
Warren Metlitzky, a civil litigator at Conrad & Metlitzky who used to defend police officers as a city attorney in San Francisco, said that what is not captured on video can be critical in determining the circumstances the officer was responding to, and whether he or she used excessive force. “There’s something that prompts someone to hit record,” he said.
But even given the limitations of video, its emergence has “completely changed the landscape and the manner in which attorneys who represent police officer do their jobs,” said Andrew Quinn, who represents police unions in New York City and its surrounding areas. It requires them to be more scrupulous in finding forensic evidence to support or debunk what a video shows, he said, sometimes by hiring specialists who can dissect the video frame by frame.
“There is a cottage industry of video forensic experts,” Quinn said, “and it is a growing industry.”
’REASONABLE’ OFFICER STANDARD
In the recent and charged history of videos of police shootings being uploaded to social media, the quality and nature of the footage runs the gamut.
Perhaps one of the most complete videos is the one that captured the death of Eric Garner, a black man from Staten Island who died after an officer applied a chokehold. A roughly 10-minute-long cellphone video of that incident in 2014 shows Garner arguing with police extensively before he is forced to the ground and repeatedly gasps out, “I can’t breathe.”
The videos showing the incidents involving Castile and Sterling, who died after being shot by police in Minnesota and Louisiana, respectively, are more limited. In the video livestreamed by Castile’s fiancée on Facebook, she narrates her version of events in the moments after Castile, who can be seen bleeding in the driver’s seat, has been shot.
The image is shocking. But as evidence, its value may be modest.
“Violence always looks abhorrent on video without context. Thankfully, as humans we have a visceral reaction to violence,” said Harry Stern, a Berkeley, California, police officer-turned-attorney at Rains Lucia Stern, which represents officers throughout the state.
Much of what influences how the video is weighed in court is the legal standard to which police are held when force is involved. The seminal U.S. Supreme Court case in this area, Graham v. Connor, established that whether force was justifiable must be determined from the perspective of a “reasonable” officer given the information he or she possessed at the time.
That standard can affect the relevance even of footage shot by police body cameras, which are often worn down on the chest rather than at eye-level, Stern said. Surveillance cameras pose even more technical and perspective issues, he added: Some of them capture just one frame per second and then use a smoothing technology to avoid the “herky-jerky, silent film look.” But that technology can distort motions that were perceived as quick or aggressive by an officer.
“My experience tells me that while
can have some probative value, it’s extremely limited,” said Quinn, the New York lawyer.
“Particularly body cameras, they don’t capture the full event,” Quinn continued. “In fairness, sometimes it’s to the detriment of the police officer, sometimes it’s to the detriment of the individual the officer’s dealing with.”
BOLSTERING THE VIDEO
Lawyers who have represented individuals beaten or shot by police find different ways to grapple with the limitations of video. In instances where only part of the story is told, overcoming the doubts raised by the defense can require finding witnesses who can place themselves in the video—or simply finding footage from another camera, said Avanindar Singh, deputy public defender for Santa Clara County.
Singh pointed to the Sterling shooting as an example. A second video that emerged a couple days after the initial footage shows the altercation at closer range and picks up the dialogue of the officers involved. (Neither video shows the shots actually being fired at Sterling.)
“It’s not that the two videos tell the same story,” Singh said. “They support each other in different ways.”
Lesser, in Dallas, stressed that even partial videos can give critical pieces of information. He pointed to the Sterling video and how it appears to show the officers pinning down both of his hands—which would seem to contradict the officers’ contention that he reached for a gun.
“How is he getting his gun, with his tongue?” Lesser said. “In that sense, that video would be very powerful.”
David Owens, an attorney with Chicago-based civil rights firm Loevy & Loevy, said that even partial videos can be valuable if they undermine or contradict the accounting of events given by the police.
In a case that his firm brought in Texas involving a black man killed by an officer, a surveillance video does not show the shooting, but does show the victim backing slowly away from the officer—in contrast to the police report that he turned and quickly ran, Owens said.
The absence of video can also be a tool wielded by those bringing suit against an officer. Jaime Leanos, a San Jose attorney who focuses on civil rights and criminal defense cases, said that if an officer failed to turn on his or her body camera in accordance with department policy—or alleges that it failed, without corroborating evidence—juries may draw an adverse inference.
“That argument will definitely be made against them in court,” agreed James Cline of Cline Casillas, a Seattle law firm representing police unions. Cline said that departments across Washington state are still figuring out how to set policies for body cameras, but he expects that they will ultimately be beneficial to police.
“In most cases, I think, officers are going to be better served by having a complete shot of what occurred rather than these fragmented social media videos,” he said.
One of the things that both sides wrestle with is how frequently to show a video in the course of a trial. Often, closely analyzing a video for the jury and showing it multiple times is just a necessary part of unpacking the series of events. But it also takes away from the “shock value” that may give the plaintiff’s side an advantage.
That isn’t always the way it shakes out, though. “If you play a video over and over again, and the jury is still really bothered by it,” said Metlitzky, “then you’re likely going to get a verdict against the officer.”
