The Right To Go Red

The scenario played out like a bad SNL skit, with an unidentified officer telling her fellow St Louis officers to stop punching, kicking and tasing Cortez Bufford for a moment.

“Hold up, everybody hold up, we are red right now, so if you guys are worried about the cameras just wait.”

While police claim a gun, ammo and weed were found in Bufford’s car, all charges against him were dropped, and he is now suing the cops for excessive force.

Bufford’s attorney said there was no reason for the police to pull over his client, and no reason for officers to kick him.

“You watch the foot go back and the foot go forward, now I think you can go to the police academy for a long time before they say the right move is to kick the guy,” said Bevis Schock.

The basis for the stop was that Bufford’s car matched the description of “a shots fired call.”  Because there aren’t thousands of potentially matching amorphous grey cars to choose from.

The police defend their use of force as being completely justified, because what else could they argue?

Brian Millikan, attorney for the St. Louis Police Officers Association, represented four officers during the internal investigation.

“The officers followed the use of force continuum,” Millikan said. “They took the suspect into custody with the minimal force that was necessary that evening.”

Nothing surprising here. But the aspect of this skit that made it noteworthy was the officer who told the others to hold up, because camera.  The implications are obvious.

A city representative said the officer that turned off the camera violated department policy and has been disciplined.

All of this raises a very significant question about the use, and lack of use, of cameras.  That turning off the camera “violated department policy” is nice, as is the fact that the officer has been disciplined, whatever that means.

What remains unknown is whether there is an enforceable duty to keep the camera rolling, and if not, particularly under the circumstances here where the camera was expressly turned off for the purpose of not recording a beating, what that means for the person being beaten.

Departmental policy is a great tool for cross-examining a cop on the stand in a criminal prosecution, but does little to help someone beaten in a civil action for the use of excessive force.  It’s not law. It doesn’t confer a right on an outside party to enforce.  It’s just the internal rules by which a police department tells its cops to play, like an employee handbook.  When they fail to do so, the only penalty is internal.

Sure, cameras aren’t a panacea.  Sure, we can construct a presumption for use in criminal prosecutions, should the courts be willing.  And even if not, where the conduct is so shamelessly flagrant as here, its use on cross is sufficiently clear.  But where, as here, the conduct of turning off the camera to conceal a beating is so flagrant and undeniable, what then?

“Several prosecutors reviewed the video and were concerned to see the intentional deactivation of the dash-cam video. The office immediately reported this concern to the St. Louis Metropolitan Police Department’s Internal Affairs Division and to the sergeant of the officer involved.

“Additionally, prosecutors conducted a separate review to determine if any police conduct depicted on the video rose to the level of criminal activity. The review process included thorough interviews of the officers present during the incident. Subsequently, the Circuit Attorney’s Office concluded the conduct did not violate Missouri law.

There are unknown unknowns, and known unknowns.  In this instance, it’s clear that something happened after the camera was deliberately and purposefully turned off, making it the latter.  We know that the camera was turned off for the express purpose of not capturing the beating that was being, and to be, inflicted on Bufford.  And we know that there is no ability, no way, that Bufford could bear any responsibility for the camera being turned off.

But what we do not know is what, if anything, Bufford or his lawyers can do about it.

The basic rule is that a lawsuit requires a right, a writ and a remedy.  There is no freestanding right to require police to record an interaction.  There is no right to require them to leave the camera rolling.  There is no right to hold the police accountable for purposefully turning a camera off to assure that there is no evidence of the beating about to happen.

And without a right, there is no recourse.  If someone was to imagine this scenario as part of an argument to demand a law requiring police to leave the camera rolling, keep it “red,” that would give rise to a private cause of action against the police, most of us would laugh at it, deem it so outlandish and ridiculous as to be unworthy of being taken seriously.

“Hold up, everybody hold up, we are red right now, so if you guys are worried about the cameras just wait.”

But there it is.  And leaving it in the hands of the police to address does the victim of a police beating little good.  If the police can turn off the camera with impunity for the express purpose of not recording their beating, then the virtue of video, to the extent it helps, is reduced to a lucky break or police incompetence.

Departmental discipline is inadequate. The police must be held accountable when they deliberately turn the camera off, and the right to hold them accountable should belong to their victim.

32 thoughts on “The Right To Go Red

  1. John Burgess

    I guess it’s going to come down to state laws that criminalize the turning off of police cameras while the police are actively conducting an official activity. And, of course, a clause in the contract that makes its a fire-able offense. Maybe an expansion of the “spoilation” doctrine, too?

  2. Steven M Warshawsky

    From the civil perspective, because the cops violated departmental policy requiring the camera to be kept on, this should support the plaintiff’s argument that an adverse inference should be drawn against the cops about what happened after the camera was turned off. This very well may make the difference in whether or not he can survive a summary judgment motion on his excessive force claim and obtain a reasonable settlement.

    1. SHG Post author

      I would agree that this would give rise to an adverse inference in a civil action, but my point is that’s not good enough. It doesn’t add to damages or provide compelling evidence of what happened after the camera was turned off. So while it adds to liability somewhat, the incentive system still favors turning the camera off to avoid damages.

  3. Noah

    you don’t think a missing evidence instruction or presumption would suffice? In the criminal cases, you can have the sanctions available in any intentional destruction of evidence case, and in a civil case, a jury could presume that the evidence was bad against the government. I would hesitate to create a separate cause of action, as it’s unclear that I am harmed just because the police officer turned off the camera before interacting with me. Some people might object to being filmed, and in a normal interaction, an officer could reasonably decide to turn off the camera.

    1. David M.

      I don’t think a reasonable cop would turn off the cam even with only a missing evidence presumption in force. They’d have a strong incentive not to sabotage their own arrest, and none I can see to respect the other guy’s wishes.

  4. Not Jim Ardis

    There is no freestanding right to require police to record an interaction. There is no right to require them to leave the camera rolling. There is no right to hold the police accountable for purposefully turning a camera off to assure that there is no evidence of the beating about to happen.

    Is there a freestanding right to not have the cops destroy evidence (or potential evidence)?

    1. Not Jim Ardis

      Also, I think “we are red right now” might mean the red light that signifies the device is recording. If that is the case, wouldn’t it be the right to not go red?

  5. Bartleby the Scrivener

    This is a bit of a conundrum for me.

    I can see criminalizing the destruction of a recording in an attempt to hide their illegal behaviors, but there are any number of reasons why a camera might not catch an interaction between the police and a suspect.

    Ultimately, I think I agree with John Burgess. Make it so it’s not up to the cop to turn the camera off or on (so it has to be done at the station) and make tampering with it a felony (sort of like the smoke detectors in airplane bathrooms).

    Even then though, I could see at least some cops pointing their car away from the interaction with the suspect.

    This is really, really bad, and I tend to think Mr. Bufford should not ever have to work again. I imagine there could be some really amazing video from somewhere else showing him to be superhero strong and tough, but short of that, I’m surprised that the cops in question weren’t prosecuted for this.

    *sigh*

    1. SHG Post author

      You’ve gone to a completely different place: I do not suggest criminalizing it, but creating a private cause of action upon which an alleged victim can seek recourse. Huge difference.

      1. Bartleby the Scrivener

        I propose criminalizing tampering with the camera and DVR, not failing to record.

        I HEAVILY support the idea of making it a private cause of action if it is seen to have occurred through deliberate action.

      2. noah

        So do you see no circumstances in which an officer might turn off the camera in good faith? Viewing this through the lens of police beatings, of course they should have to pay. But what if we view this through the lens of police interactions with mentally ill citizens who object strenuously to being filmed? Do we then have officers who cannot turn off their cameras, because liability and rules, and then have to use force to subdue an objecting video subject?

        The ACLU has been objecting to non-discriminate video-taping of all citizens. Even if we as a society decide that body cameras are a net good, setting a hard and fast rule that does not allow for objectors to be accommodated by that majority of police officers who act in good faith would be a shame.

        1. SHG Post author

          You’re conflating a bunch of different things here. This post relates to turning off a camera for the purpose of concealing the use of force, nothing more. This isn’t about a million other, wholly unrelated circumstances. I shouldn’t have to explain this to you.

          1. noah

            I’m sorry, I thought you were talking about a “freestanding right to require police to record an interaction” full stop, because of police brutality, rather than a right and cause of action that arose when there are allegations of police brutality. In that case, what would you get beyond the right and cause of action that already exists?

            1. SHG Post author

              Context matters. I guess I need to spell it out at greater length lest anyone be confused. I’ll work harder at it in the future.

              As for what we get beyond the excessive force complaint, two things: first, the excessive force isn’t just the part that we see, but the part that we would have seen had the camera not been turned off. It’s not either/or, but both. Second, we create an incentive system for police (and certainly the municipality that governs) to not do what happened here.

              We also get a third thing, that we are able to gain the most transparency benefit of video by having it show what really happened. Transparency is its own virtue when it comes to police brutality.

        2. noah

          And then what happens when police officers enter a hospital or other medical centers? Are people’s medical privacy rights now to be sacrificed because the presumption of bad faith when police turn off cameras in those (thankfully) rare police brutality cases does not give a plaintiff an additional ground of recovery?

          It would all be up to the jury anyway – why do we think they would give more on this ground than the 1983 brutality ground?

          1. Bartleby the Scrivener

            I don’t suggest that they should have to record their every interaction, but that if they tamper with a recorder it should be a criminal act and if the recorder is tampered with immediately before or during an interaction with a suspect, it should be an item that is actionable unto itself when a suit is brought in addition to being prejudicial in consideration for the other items brought to suit.

          2. Andrew

            I’m trying my best, but just can’t figure out why you’re having such a hard time understanding SHG’s point. It seems about as clear as humanly possible.

  6. Jack

    What does it mean for the person about to be beaten when the officer turns off his camera? It means he is going to be beaten, of course… I would say it is indicative of a rather severe beating as well.

    At least the officers won’t have to say “stop resisting” over and over, so maybe they will be a little more honest with their punching bag.

      1. Jack

        As the beatee, I’ll take “implication” since that tells me the officer at least knows, morally, what they are doing is bad enough for them to hide. And if they have some morsel of conscience deep down, perhaps they won’t cripple or kill me.

        As a juror, I would probably prefer implication as well since it shows me the police were trying to hide it (“we’re red!”) and knew what they were doing was wrong. Obviously, no video at all and no “inference” is problem – but I think with your no video presumption and some before and after pictures, that would be enough. With a video the police get to go through frame by frame and try and twist a suspects actions while being pounded as resisting or fighting back. Without one, while there is the officer(s) word, it is tempered by the negative inference that they were hiding what they did.

        Just from reading ECLS and other reasonable LEOs, the fact that he can sometimes take something you or I find repugnant captured on video and make it sound halfway reasonable, I don’t think a video is as potent as as the implication in this non-video when a video is coupled with copsplaining.

        1. SHG Post author

          That’s totally screwy. But what do I know? I’m just a lawyer.

          However, should you ever actually be a beatee, don’t mention this to your lawyer or he will call you really mean names that suggest the beating has irreparably damaged your brain. Unless, of course, you’ve already been a beatee and this is the by-product of your beating.

          In this case, I am deeply sorry.

        2. ExCop-LawStudent

          Jack, in my opinion the officers should have been criminally charged for tampering with evidence.

          Yeah, I know that the DA said they couldn’t be charged, but that’s BS. The DA is likely going on the fact that there was not a legal proceeding in progress, based on one line of case law; and ignoring the other line. In the second line of cases, the courts have had no problem convicting people who try and swallow their own dope, etc., even though there is not legal proceeding, so long as the police were conducting an investigation.

  7. EH

    Huh. Seems like this would be something where you would want to combine a few things.
    1) Mandatory recording.
    2) Mandatory disclosure of recordings to parties.
    3) A mandatory civil fine w/ attorneys fees, for any missing video. As the cops say, “accidents happen, but that doesn’t mean you don’t have to pay for them.”
    4) Personal officer liability and multiple damages if the court finds it was an intentional act (preponderance standard) of turning off, obscuring, deleting, blocking, interfering with, etc. the video.
    5) A mandatory spoliation instruction if there was a subsequent civil rights suit.
    6) An even stronger instruction if it was intentional.

    I don’t think the fines need to be that high. $500/incident as a baseline would be plenty so long as they can be cleanly and commonly enforced. Research suggests that lower and more frequent fines would be a much better driver of behavior than higher fines which were rarely enforced.

    1. SHG Post author

      If you want to go down your own path, feel free. But this isn’t what I’m talking about, and you’ll have to do it at your own blog because this one is for me.

  8. LTMG

    In nearly all professions, people usually do what others check or audit. Taking video of interactions between the police and citizens ensures that the actions of all parties are subject to 3rd party review. There are plenty of videos of police actions not matching what the police wrote in their reports. There is very recent video of a prisoner or detainee bashing his head against the bars of his cell injuring himself so he could allege police brutality. Video can certainly help.

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