We’re well past the point where the impact of video on “what really happens” is subject to debate. Frank Pasquale at Co-Op has taken a video of pure, sheer, shockingly gratuitous violence by a cop and, in the spirit of my “but for video” posts, shows how the video exposed yet another act of mindless violence, flipping the roles of victim and criminal upside down.
If the moment hadn’t been caught on tape, it’s quite possible the victim here would be facing criminal charges, and the policeman in question could be plotting another assault.
Not only is it quite possible, but it’s been the natural scheme of things for a very long time. The presumption o regularity is not merely a legal concept, but a framework for all of us to digest the world around us and make sense of it. As video has come to teach us, there is far more happening in the world that just isn’t “regular” and doesn’t fit the paradigm.
So first, the video:
But this example also illustrates the limits on video as proof, if this incident ever becomes the subject of criminal or civil litigation. While our brute-sense impression of the action depicted in the video is that the officer clearly used unreasonable and excessive force, there is much the video does not necessarily show. Why did the officer pick this guy out and what was his reason for acting (Frank notes this was “seemingly without provocation–the video just does not tell us), which will be a key question in litigation? Did the rider say something to the officer? Did the officer reasonably fear the rider was coming at him? Was the rider carrying something that caught the officer’s eye (given the video’s angle, we never see the front of the rider or his arms)? From the video alone, we simply do not know.
Does Wasserman play the police apologist? I think not, as he uses his point to question the Supreme Court’s Scott v. Harris decision, where Justice Scalia used a video to “prove” police justification for violenting stopping an “obviously” dangerous vehicle. And to some extent, his point is well taken that a snippet of video can distort our understanding of what happened, and leave us to believe we know more than we really do. This is the basis of my issues with the “magic bullet” solution of videotaping defendant statements as the cure for improper interrogation.
But should we speculate about zebras when we hear hoofbeats? That’s a problem too, when there remains such a strong inclination to side with normalcy when confronted with a video like this, which undermines our faith in how normal society is supposed to work.
This brings me back to my basic premise: When police culture has rendered our faith in the integrity and honesty of the cops suspect, as so many videos have turned up to prove what clients have told their lawyers for generations but couldn’t be proven before, then we have got to demand that police culture be changed.
And spare me the sanctimonious self-absorbed cops-are-our-heros excuse. Cops are supposed to be cops. They don’t get an award for not being violent criminals.