Witness videos and conversation about race, police and violence

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On Tuesday night, Alton Ster­ling was fatally shot by police in Baton Rouge, Louisiana. Late Wednesday, Phi­lando Castile died after being shot by police during a traffic stop in the St. Paul, Min­nesota, suburb of Falcon Heights. Both men were black, and the shoot­ings have touched off a series of protests across the country.

And then, on Thursday, a third day of vio­lence. At a peaceful protest in Dallas, five police offi­cers were killed and nine others injured by snipers.

The shoot­ings in Louisiana and Min­nesota, and the ambush in Dallas, were cap­tured in grisly videos by bystanders—videos that quickly cir­cu­lated on social media.

Here, law pro­fessor Jes­sica Silbey, an expert on intel­lec­tual prop­erty and the use of film to com­mu­ni­cate about law, talks about the role technology—particularly video footage—now plays in influ­encing the national con­ver­sa­tion about race and policing, the con­sti­tu­tional rights of cit­i­zens to film police activity, and the value of bystander videos in inves­ti­ga­tions and trials.

What roles have tech­nology, cell­phone videos in par­tic­ular, and social media had on influ­encing the national dia­logue about race and policing?

Cer­tainly, dig­ital tech­nology has increased the speed at which infor­ma­tion travels. And the diver­sity of information—different videos of the same event for example—is also more readily avail­able. This can help people under­stand that the more view­points on an event, the richer the debate with more people involved. This is good for a society that is sup­posed to be based on demo­c­ratic prin­ci­ples of rep­re­sen­ta­tive­ness, account­ability, and self-government.

Unfor­tu­nately, I don’t see the ubiq­uity of videos changing people’s minds about par­tic­ular events. People come to video images with a frame­work of under­standing and expe­ri­ence that shapes what they see. Some­times videos solidify pre­con­ceived notions. And some­times they com­pli­cate the under­standing of what hap­pened. Rarely do they answer with cer­tainty the cen­tral issue, e.g., whether the police used an uncon­sti­tu­tional amount of force. In the Baton Rouge video, for example, the video does not help us under­stand if Mr. Ster­ling had a gun in his pocket and if he did, if he was reaching for it. It doesn’t help us under­stand why the police offi­cers appeared threat­ened by the victim. Those who under­stand the per­va­sive and trau­matic epi­demic of racial pro­filing in the United States know that the Baton Rouge police offi­cers felt threat­ened by Mr. Ster­ling because he is black and there was a 911 call reporting a black man threat­ening a person with a gun in that parking lot. To them, the video will con­firm an unlawful use of force against a man who was not a threat and, more gen­er­ally, serves as evi­dence of the ongoing slaughter of black men by police offi­cers in this country. But not all people will see that in the video.

Do everyday cit­i­zens have a con­sti­tu­tional right to film police activity and post it online?

In gen­eral, cit­i­zens have the right to record and pho­to­graph law enforce­ment in public. This is espe­cially true when the recording is used to crit­i­cize the police. There is no Supreme Court case directly on point, but most lower fed­eral courts have come to this same con­clu­sion. Posting the video online is also pro­tected speech under the First Amend­ment, with some excep­tions for the pri­vacy of the civil­ians involved. It is pos­sible for a civilian who is a sub­ject of the video to bring a pri­vacy claim against the poster of the video if the images in the video are par­tic­u­larly trau­matic or upset­ting. Many such pri­vate suits will turn on the news­wor­thi­ness of the images.

What impact does footage recorded by bystanders have on an inves­ti­ga­tion? Is it afforded the same con­sid­er­a­tion and does it carry the same weight as other forms of evi­dence?

Typ­i­cally, video footage recorded by a neu­tral bystander is strong evi­dence if the facts that are in dis­pute are resolved by the video. This is not always the case, how­ever. Video footage can also help cor­rob­o­rate wit­ness tes­ti­mony and sup­port the cred­i­bility of wit­nesses. These uses are much more helpful. Videos rarely “speak for them­selves” and need—or should have—an eye­wit­ness (or sev­eral) to help nar­rate the scene with the images. More­over, bystander videos are often grainy and shaky, and the sound is poor. That makes them more ambiguous than one would hope when seeking to prove wrong­doing or exon­erate a defen­dant. Per­haps as impor­tantly, how­ever, video footage has sig­nif­i­cant per­sua­sive force as a symbol of wit­nessing, of cit­i­zens being present during alter­ca­tions or crit­ical events that deserve public scrutiny. Video footage like those from Baton Rouge and St. Paul this week are so pow­erful as evi­dence that says “I bear wit­ness.” Bearing wit­ness like that—and calling for others to do the same—can be crit­ical for mobi­liza­tion and polit­ical change, even when the con­tent of the video itself may be contested.

In Baton Rouge, there are public calls for the release of sur­veil­lance footage seized as evi­dence. What guide­lines govern if and when evi­dence is released pub­licly?

Laws in each state address the release of public records, and police depart­ments usu­ally have existing poli­cies and people to deal with public records requests. Video evi­dence presents new prob­lems, how­ever, and working groups have formed all over the country to update the guide­lines about reten­tion and release of video footage. On the one hand, police depart­ments con­sider issues around pre­serving the integrity of the inves­ti­ga­tion. On the other hand, reten­tion and release guide­lines must also serve to main­tain public trust and account­ability. It’s a hotly debated topic right now, espe­cially with body cam­eras that record images of con­fronta­tions in homes and other pri­vate spaces. When footage shot by cit­i­zens is seized by the police as rel­e­vant evi­dence pur­suant to a war­rant, for example, it becomes part of the record in the case and usu­ally is sub­ject to the same kind of public records policies.

(Reprinted with permission from News at Northeastern University.)

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