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Protesters Take Cellphone Footage From the Streets to the Courts

Oct. 13, 2020, 8:55 AM

Video footage taken by protesters, bystanders, and legal observers is becoming a significant source of evidence for a wave of civil lawsuits alleging that law enforcement across the country met recent Black Lives Matter and other protests with unconstitutional shows of force.

Unlike in protests of decades past, hundreds of protesters now carry smartphones capable of instantly capturing high-quality evidence of how police respond. Some of their attorneys say this evidence could be crucial to overcoming judges’ and juries’ historic tendency to default toward accepting law enforcement’s narrative of events.

But critics say such footage can give a false sense of objectivity, while presenting an incomplete version of events. Moreover, courts impose strict conditions for the admittance of this kind of evidence, a practice that is expected to become increasingly common as more cellphone videos are sought to be introduced to buttress allegations of excessive police force.

From Indianapolis to Washington

In Indianapolis, protesters seeking to exercise their right to free speech “were met with violent responses from the city of Indianapolis that included the use of tear gas, flash grenades, and pepper-ball projectiles,” according to one suit in federal court in Indiana. Medics providing care to injured protesters in Portland were intentionally targeted and retaliated against by law enforcement, according to another in Oregon that cites several videos in tweets.

In Washington, D.C., a peaceful assembly in Lafayette Park near the White House was dispersed “to clear the area to permit the President to walk to a photo opportunity at a nearby church,” which was “a wholly illegal reason for abridging the constitutional rights” of the protesters, another suit says. Other suits challenge law enforcement’s response in Denver, Seattle, and elsewhere.

The plaintiffs, including social justice groups and protesters who were injured, are seeking monetary damages and court orders curtailing the ability of local, state, and federal law enforcement to use the challenged tactics. And just as it’s helped them make their case in the media, they are turning to cellphone footage to further their cases in court.

“I think this kind of evidence will ensure that judges and juries see what happened to innocent protesters at these protests,” said Timothy R. Macdonald of Arnold & Porter Kaye Scholer LLP, who represents the Denver plaintiffs. “We saw this with the viral videos of the events giving rise to these very protests, like the killing of George Floyd. Citizen activists can document the police in real time, limiting law enforcement’s ability to dispute their testimony.”

Some of the images the public has already seen of police violence and protesters’ injuries are “pretty horrendous,” Macdonald added.

The U.S. Supreme Court’s legal doctrine that shields public officials from liability in civil cases is getting renewed attention during the national debate over police accountability. Qualified immunity was created by the court in the late 1960s—and expanded in the 1980s—to free public officials such as police officers from the fear of frivolous lawsuits for doing their job. Critics see as a major obstacle to holding police accountable for misconduct. (Video by Andrew Satter; Executive Producer: Josh Block)

Bulwarks to Police Defenses

Even clear video accounts may not be enough to help plaintiffs overcome the doctrine of qualified immunity, which generally protects government officials, including police officers, from actions violating someone’s rights if those rights weren’t “clearly established” at the time.

But video of police actions at these protests, disseminated through traditional and social media, is already having a big impact on the public perception of law enforcement’s trustworthiness about such incidents, said Tasnim Motala, a fellow at Howard University’s Thurgood Marshall Civil Rights Center.

Jurors and judges have long tended to believe officers’ testimony of events, and are skeptical of testimony that contradicts them, a major hurdle in suits to hold law enforcement accountable, said Jonathan M. Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, which represents the Lafayette Square plaintiffs. Video practically brings jurors right to the scene of the action, allowing them to discern what happened for themselves, Smith said.

The lawsuits are still in early stages. but several of the complaints reference protesters’ and legal observers’ attempts to record law enforcement or include links to such videos. Some plaintiffs even assert that law enforcement have targeted people filming them “in an attempt to minimize video evidence.”

“Videos shared in the press and on social media show the police in this country out of control: attacking journalists, attacking bystanders, threatening children, assaulting people for insulting them, engaging in drive-by attacks with ‘less lethal’ weapons,” and more, the group Don’t Shoot Portland alleges. Another suit links to pictures and video, taken by a protester and shared on social media, depicting federal agents deploying tear gas.

Nevertheless, some attorneys point out that videos aren’t an unambiguous record of events.

“The concern about cellphone videos is you’re not seeing everything. It’s a snapshot,” Wendy Shea, head of the Denver City Attorney’s Office civil litigation section, told Bloomberg Law.

A video only presents one point of view, without showing the larger context in which the events took place, and often doesn’t start until a confrontation is underway, missing the precipitating events, Shea said. There’s also the possibility these videos can be deceptively edited, she added.

Getting The Footage Admitted

Attorneys for the protesters will also face hurdles in even getting cellphone videos accepted as evidence by the courts.

To improve these attorneys’ and others’ odds that judges and juries will actually have the chance to weigh the footage as evidence, Witness.org, a nonprofit organization that promotes the use of video to protect human rights, puts out a “Video as Evidence Field Guide.”

The rules of evidence vary between jurisdictions, but generally attorneys should ensure that the footage they’re seeking to introduce is verifiable, authentic, and has a proven chain of custody, according to the guide.

The video needs to be confirmed that it is what it claims to be and was taken at a specific time, date, and location, Witness.org says. It also must be “free of any sort of manipulation, including changes of filename, additions, deletions, editing, or corruption.”

Additionally, attorneys should document the chain of custody for the video between its recording and its entry into evidence. One option is to take the device containing the original file directly to a third-party video services company who can extract the footage, examine its metadata, and testify that it hasn’t been altered, Frances Crockett Carpenter, a civil rights attorney who serves on the executive board of the National Police Accountability Project, told Bloomberg Law.

Witness.org recommends documenting every transfer, including getting a signed statement from the videographer that they took the footage and didn’t alter it.

The field guide cautions that judges may still choose to bar such footage, even if it’s relevant and authentic, if they conclude the evidence is unduly prejudicial because it “provokes emotional bias or misleads or unfairly sways a judge or jury.”

But when such evidence gets in, proponents say, it may very well prove to be one of the most valuable tools protesters and others have to overcome law enforcement’s qualified immunity and other defenses and to make their cases at trial.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com; Steven Patrick at spatrick@bloomberglaw.com

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