By Karen J. Kruger, Senior Assistant County Attorney, Legal Advisor to the Sheriff of Harford County, Maryland
olice chiefs, police personnel, and their attorneys cheered when the U.S. Supreme Court issued its decision in Scott v. Harris.1 In Harris v. Coweta County,2 a deputy terminated a high-speed pursuit of a driver’s car by applying his push bumper to the rear of the vehicle, causing the car to leave the road and crash. The driver was rendered a quadriplegic. The court of appeals denied the officer a qualified immunity defense because it took the driver’s view of the facts as given, and the deputy disputed that rendition.
The Supreme Court, however, found that the videotape that recorded the pursuit quite clearly contradicted the version of the story told by the driver and adopted by the court of appeals. The Court instructed that the appellate court should have viewed the facts as depicted by the videotape, since the tape provided objective evidence of the events in question. Given that a police officer’s attempt to terminate a dangerous, high-speed car chase that threatened the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death, the Court entered judgment in favor of the deputy.
The feature of this decision that caught the special attention of many police legal advisors was that the Supreme Court itself actually viewed the videotape—the “raw” evidence in the case—and made its ruling based on its consideration of those facts, not those on which the appellate court relied. Scott, then, illustrates for law enforcement practitioners the value of videotape evidence.
Yet videotape or digitally recorded evidence can pose hazards as well. Video evidence is not always favorable to the police. In Collins v. Jordan,3 a case involving First Amendment issues, a video of crowd activity just before the police issued a dispersal order created a factual dispute about the number of people gathered, the nature of their conduct, and whether the crowd actually dispersed once the order was given. Moreover, video evidence of other demonstrations that had taken place the day before at other locations showed that the protestors were “completely peaceful,” to the point that no reasonable police official could have believed that a total ban on demonstrations was constitutional.
Video evidence is not always available, even if created at the time of an incident, and practitioners must be able to explain the reason for its absence. Video recordings may be of poor quality, may be deceptive because of camera angles or viewing fields, or may not duplicate the perspective of the officer on the scene. This column provides a quick overview of a few cases that managed to avoid some of these pitfalls in an effort to make chiefs, their staffs, and attorneys aware of them.
The Evidence Is Useful Only If You Have It
An inmate at the Roxbury Correctional Institution in Maryland, Terry K. Epps Jr., recently voluntarily dismissed his Section 1983 lawsuit based on his allegation that deputy sheriffs and state troopers used excessive force against him during his arrest.4 He dismissed his case after officials gave him the opportunity to view the videotape made by the in-car system that captured the actions of the officers and showed that no unreasonable force was used.
However, this dispositive evidence was almost lost before it could be used. Once Epps’s criminal prosecution was complete, the investigating deputy filed a report that the evidence was no longer needed. Although internal affairs had investigated Epps’s original complaint, investigators had not retrieved the tape, nor did their report make any mention of it. Only by a stroke of good fortune and timing was the officers’ counsel able to save the disk from the recycling pile before it was reused by the in-car video system.
The agency thus learned an obvious lesson concerning its inventory and retention procedures for in-car videos. Although space, time, and expense may limit an agency’s ability to retain every piece of evidence it generates, the evidence can do its job only if it is available.
Help the Court Use the Videotape
In Hudspeth v. City of Shreveport, an in-car video system recorded a police pursuit that followed the suspect’s failure to stop for a red traffic signal.5 After the suspect stopped, he emerged from his car, assumed a “shooting stance,” and pointed at an officer an object that appeared to be a gun. After the suspect failed to comply with police commands, the police shot him. The object turned out to be a cellular telephone, and one of the shots hit the suspect in the back.
The District Court for the Western District of Louisiana noted that “the best evidence” of what happened once the suspect stopped was the video footage, as well as still photographs excerpted from the video that showed the “shooting stance.” In fact, the district court found that there could be no factual controversy in the case because “all . . . critical events are accounted for on the video and still image photographic evidence” and that the “video compilation is essentially an independent verification of [the officer’s] affidavit.”6
There were three patrol cars at the scene of the Husdpeth shooting and therefore three video recordings. The defense prepared a video compilation in which the three recordings were synchronized and shown on a three-paneled split screen. In this way, the district court could analyze the events from the perspective of each of the three officers involved, in a real-time sense.
The district court also relied heavily on the still photographs, most importantly on those depicting Hudspeth as turning and one of the officers as crouching in a defensive response. Upon consideration of this objective evidence, which served to verify the officers’ testimony, the district court ruled that the actions of the officers were constitutionally reasonable.
Fill In the Gaps: Interpreting and Enhancing the Photographic Evidence
As good as the video evidence in Hudspeth was, there was a significant gap in it. The video did not capture the very first actions of thesuspect as he exited his vehicle and immediately assumed a two-handed shooting stance while pointing an object at an officer, “due to the location of the police vehicles and Mr. Hudspeth.” Rather than allow the plaintiff to possibly exploit this “absence” of evidence, the officer submitted an affidavit recounting these first moments.
Zellner v. Summerlin involved arrests made during a protest demonstration that occurred near the Shinnecock Indian Reservation.7 Even though the police made a videotape of the event, “[t]he trial produced sharply divergent versions of the events leading to Zellner’s arrest.”8 Zellner alleged that the police accosted him for no reason, while police contended that he was arrested when he jumped into the roadway with the intent to obstruct traffic.
On appeal, the court found that standingalone, the video evidence did not establish that Zellner “was actually and immediately” blocking traffic. It noted that “although the videotape shows that Zellner walked into a group of people standing in and around the driveway, it is impossible to tell whether he was in the truck’s direct path at any time.”9
The court suggested that the defendant officers could have corrected this problem by having testimony from the trooper who had activated the video camera, who could have explained what he saw in three dimensions, thus shedding light on the meaning of the two-dimensional video evidence.10
An incomplete videotape can provide a foundation for other demonstrative evidence, as shown in Ostrovsky v. Cashen.11 In this wrongful-death case, the in-car video captured the stop of the tractor-trailer that had unlawfully entered the airport, but the subsequent apprehension of the suspect was out of camera range. However, a witness claimed to have seen police beating the suspect. Using the final frame of the video, an animator was able to recreate the scene, insert figures, and demonstrate that it would have been impossible for the witness to have seen what he alleged because a Jersey barrier obscured his view.
On the other hand, often the best strategy is simply to let the videotape speak for itself. In Forrester v. City of San Diego, the police recorded a protest undertaken by Operation Rescue, whose sometimes violent tactics were known to them.12 When the protestors failed to comply with law enforcement directives to disperse, some were arrested and subjected to pain compliance techniques.13
The jury viewed the videotape and returned a verdict in favor of the police officers who had been sued, concluding that none of the arrests involved excessive force. The reviewing court noted that the video “created an extensive evidentiary record” and that the videotape indicated that “the officers used minimal and controlled force in a manner designed to limit injuries to all involved.”14
Likewise, in Mann v. Yarnell, the court relied for its factual analysis exclusively on the events depicted on a video recording made by a neighbor and the officer’s deposition testimony.15 The court refused to consider “Mann’s version of the events [which] consists of unsubstantiated speculation . . . .” The plaintiff tried to claim that because the video contradicted his version of the facts, there existed a genuine issue of material facts that should have been submitted to a jury. The court rejected this position because the video so thoroughly supported the officer’s version of the events that there could be no other reasonable interpretation of what happened.16
Even when a “video tape does not clearly reflect precisely what happened,”17 such evidence can resolve a case. In Hackett v. Taylor, an inmate alleged that correctional officers kicked and beat him when he was down on the floor, and he claimed that the videotape of the incident supported his version of the facts. The court, upon viewing the videotape, wrote, “[T]he simple fact of the matter is that the video tape establishes beyond any doubt that excessive force was not used against [the] plaintiff. To the contrary, it demonstrates that the officers acted with complete restraint toward [the] plaintiff who continually abused them with provocative language.”18 Significantly, the court reached this favorable conclusion after acknowledging that the tape did not capture exactly what occurred “on the two occasions when plaintiff went to the ground.”19
From the Officer’s Perspective
The law governing unreasonable-force cases requires that the factual analysis be based on the perspective of the officer on the scene,20 but one or more of the video recordings may not have the same perspective.
Consider Waterman v. Batton, a police-involved shooting that occurred at a toll plaza in Maryland.21 Officers in marked patrol vehicles equipped with video recorders pursued a driver who refused to stop after speeding through an airport, throwing an object out the window, and driving erratically. When the driver slowed to enter a toll plaza, other officers approached on foot, intending to apprehend him. The driver failed to stop and accelerated toward the officers, who shot and killed him. The shooting was captured by the patrol car video systems, but from behind the suspect vehicle, not in front of it, where the shooting officers were.
The court noted the importance of the fact that the responding officers perceived that they werein the path of the oncoming vehicle but also noted that certain witness testimony placed them alongside the vehicle, not in front of it. The court wrote, “Were there no video recording of the events . . . some of this testimony might give rise to a reasonable inference that the officers were so far out of the path of the vehicle as to not be in serious danger. . . . [T]he video leaves no doubt that at the moment of acceleration, there were officers positioned close enough to the vehicle that Waterman could have run them over in approximately one second.”22
Because the raw video footage was recorded from the perspective of the scene opposite that of the officers who were at risk, the defense arranged for an engineering firm to perform a photogrammetric analysis of the video and create a computer graphic illustrating where the officers actually stood, not their positions as they appeared in the video.23 In this way, the raw evidence was used to create a demonstrative exhibit that assisted the court in interpreting the video in accordance with the applicable legal standard.
In an age of television viewing and Internet video broadcasts, video evidence in police litigation cases is inevitable and will become only more common. It is critical that law enforcementagencies use this type of evidence to their best advantage and understand its limitations so as to properly prepare for its use. In some instances, the video alone will tell the true story and allow the police to prevail in litigation; in other cases, the video is of limited or negative value. Law enforcement officials and their counsel must know how to recognize the nature of the evidence, how best to use it, and how to identify situations in which the video evidence needs to be “repackaged” using one or more of the numerous types of technologies available.¦
1Scott v. Harris, 127 S. Ct. 1769 (2007). See also Julie Force Was Reasonable under the Circumstances,” The Police Chief 74, no. 7 (July 2007): 10–12.
2Harris v. Coweta County, 406 F.3d 1307 (11th Cir. 2005).
3Collins v. Jordan, 110 F.3d 1363, 1370–1372 (9th Cir. 1996).
4Epps v. Harford County Sheriff’s Office, et al., Case No. RDB-07-1476, United States District Court for the District of Maryland.
5Hudspeth v. City of Shreveport, 2006 WL 3747446 (W. D. La. 2006).
7Zellner v. Summerlin, 494 F.3d 344 (2nd Cir. 2007).
8Id. at 349.
9Id. at 372.
10Id. at 375.
11Ostrovsky v. Cashen, filed in the Circuit Court for Baltimore City, Maryland, Case No. 24-C-01-002398 (filed 2001).
12Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1994).
13Id. at 805.
14Id. at 807–808.
15Mann v. Yarnell, 2007 WL 2301921 (8th Cir. 2007).
17Hackett v. Taylor, et al., 2007 U.S. Dist. LEXIS 62146.
20Saucier v. Katz, 533 U.S. 194, 205 (2001), citing Graham v. Connor, 490 U.S. 386 (1989); Anderson v. Russell, 247 F.3d 125, 130 (4th Cir. 2001), citing Graham v. Connor, 490 U.S. 386 (U.S. 1989).
21Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005).
22Id. at 475, footnote 6.
23Waterman, et al. v. Batton, et al., 294 F. Supp. 2d 709, 717–718 (D. Md. 2003), reversed by Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005).