Radley Balko at WaPo provides us with yet another tale of monumental and pointless harm at the hands of a cop whose need for mindless control exceeded anything resembling human thought.
Police critic Will Grigg stitches together a series of news stories to construct an infuriating narrative from Utah.
When Mark Byrge had a minor traffic accident on a street in American Fork, Utah, he did the “responsible” thing by reporting the incident to the police. He has never stopped paying for that mistake.
Within a few minutes of receiving Mark’s call, a pair of American Fork cops arrived to document the damage to Byrge’s delivery truck from a collision with a tree branch that protruded into the street. Mark was cooperative – and he put up no resistance when the lead officer, Andres Gianfelice, placed him under arrest for an outstanding traffic ticket (as well as citing him for not providing proof of insurance).
That Gianfelice felt it necessary to arrest the guy who was doing right was bad enough. What follows, however, is where it turns into mindless insanity:
Byrge . . . made a single request of his captors: Owing to several back surgeries and the implantation of a $50,000 Spinal Cord Stimulator (SCS), Mark asked that the officers cuff him in front.
“Don’t tell me how to do my job – put your hands behind your back!” barked Gianfelice.
And of course, the damage was done. For no reason other than Gianfelice’s need to command. But this isn’t told to raise your blood pressure, but as the lead in to Balko’s real point, as Gianfelice’s memory of events was naturally entirely different, and in his narrative, he’s the hero and any harm suffered by Byrge was his own damn fault.
But Gianfelice was an officer on the American Fork Police Department, and that’s what makes this story special:
But here’s the kicker: Grigg notes that in 2007, the American Fork police department boasted to the media of being the first department in the country to outfit all officers with body cameras and microphones. A spokesman for the department told the Salt Lake Tribune that year, “We’ve been waiting. We’ve been looking for something like this to document the good work that police officers do.” But as Grigg explains, apparently not the bad:
There were three wired officers involved in the encounter with Mark Byrge – Gianfelice and his trainee, Nakai, and their supervisor, Sgt. James Bevard. The officers either suffered an inexplicable simultaneous failure of their VidCam units, or they didn’t bother to activate them. Nor was a dashcam recording made by either of the police vehicles on the scene.
Some might say this can happen. Tech doesn’t always work. Things fail, and sometimes a bunch of things fail at the same time. And others might respond, “and pigs fly.” The question thus becomes who is liable when the video fails? Radley offers his views:
Generally, it’s a good thing that police departments are moving toward outfitting cops with body cameras and microphones. But there should be some policies in place to prevent abuse. There should be strict privacy policies to prevent leaked video that could embarrass or harm private citizens.
And in cases where there should be audio or video that would corroborate one side or the other, and due to no fault on the part of the citizen there isn’t, there should be a presumption in any ensuing litigation that the audio or video would have corroborated the citizen’s account of the incident. That would seem to be a good incentive to make sure that the audio and video are both on, and that both are properly preserved.
The existence of video has fundamentally altered the equation of the “he said/she said” scenario. Historically, the cop wins because “why would he lie?” Video has conclusively proven that argument to be false, though it doesn’t mean that the cop doesn’t win. It means that we now have an independent means of determining who is telling the truth. With video, neither prosecutors nor judges are left to go with their side or the odds.
But when there is, or should be, video, and yet it somehow fails to find its way into the hands of the court, the prosecution and the defense, what then? There are four possibilities, that we resort to the “he said/she said” approach, or that a presumption is crafted with an inference that supports one side or the other. The fourth is that we litigate the fault for why the video failed, and the police are only responsible if they are at fault for the tech failure.
It seems that the approach taken toward the crafting of a contract should guide the determination. Ambiguity in a contract is construed against the person who wrote it. In other words, whoever had the opportunity to craft a contract properly suffers the burden of his failure to do so.
The same presumption should apply to video in the context of criminal law. If the police officers have video capabilities and it fails to work, then the presumption is that the video would corroborate the defendant’s account.
But the fourth approach, that the police (and by extension, the public) should not suffer because tech fails sometimes without anyone doing anything wrong, raises questions. It’s one thing if the cops deliberately disable their video, or delete it, or play any sort of games to conceal what happened. It’s another if it’s just an ordinary failure of technology. How can the police be blamed because tech isn’t perfect?
This would appear to be consistent with the approach to good faith under the 4th Amendment, that suppression is only a viable remedy if it serves to prevent an intentional violation of a person’s constitutional right. If there is no intent to do wrong, then no purpose is served by suppressing otherwise competent evidence of guilt.
And to put it in context, let’s say someone who has done a terrible crime, one that disgusts any reasonable person, would avoid conviction because a single body cam failed, no wrongdoing by a cop involved at all. This is the person who we want to be afforded the full panoply of constitutional rights, and then promptly convicted for all the right reasons.
The problem is that the presumptions are created to overcome evidentiary gaps. For example, New York law provides that everyone in a room is presumed to possess narcotics, not because that’s necessarily true, but because it would be impossible to convict anyone if each defendant points to his left and alleges, “the drugs were his.” That there were drugs in the room is beyond question, but it wouldn’t be possible to prove whose they were. And so, the presumption was created to beat the evidentiary gap.
When it comes to missing video, the question is whether this is best addressed by a presumption designed to overcome the gap of responsibility, or as a remedy for wrongdoing in the management of the video by the police. As the police video lies entirely within the control of cops, and as an incentive to do everything possible to assure that evidence that shows what transpired exists, the contract analogy is more properly the basis for the presumption than the good faith analogy. We aren’t punishing the cops for tech failure, but requiring the police to do whatever is necessary to assure that evidence of police/public encounters is recorded.
Does this mean that the heinous criminal we all despise might go free because a camera failed? It does. It also means that others will be convicted because the video worked, and provides documentary evidence to show a wrong was committed. Sometimes, that wrong will be shown to be committed by a cop. And that’s the point.