ARE CITIZEN-RECORDED VIDEOS OF POLICE SHOOTINGS A BOON FOR JUSTICE?

Margaret RussellBy MARGARET M. RUSSELL, PROFESSOR, SANTA CLARA LAW

In the understandably volatile aftermath of the killings in Baton Rouge, La., Falcon Heights, Minn., and Dallas, the role of citizen-recorded videos has been at the forefront of debates over police tactics.

On one hand, civil rights activists know the videos simply make “viral” a level of brutal misconduct that has existed for a long time.

On the other, skeptics say the videos are evidence of a piecemeal and potentially misleading nature.

In my view, both perspectives are valid and both are convincing reasons why citizen videos promote justice in potent and irreplaceable ways.

First, from a legal perspective, the very nature of evidence is piecemeal and contextual; its value is to present or lead to proof that can establish material facts at trial.

Citizen videos, spontaneously produced by bystanders who quickly grab the nearest cellphone or camera, are partial depictions that nevertheless reveal the specifics of police-civilian interactions in undeniable ways:

  • In Staten Island, N.Y., Eric Garner gasped while dying from a police chokehold and repeatedly said, “I can’t breathe.”
  • In Cleveland, 12-year-old Tamir Rice was shot dead in a park as he played with a toy gun.
  • In North Charleston, S.C., Walter Scott was shot eight times in the back as he fled a police officer during a traffic stop.

To this tragic litany we now add the videos of Alton Sterling, tackled and shot outside a convenience store, and Philando Castile, shot and left bleeding to death in his car as a 4-year-old girl watched.

As more details about the pair of killings emerge, the videos will be critical evidence in providing a full context of events.

Second, the media’s dissemination of citizen videos has raised the awareness of millions of people about the everyday experiences of people of color, particularly African-American and Latino men, with respect to interactions with police.

Even conservatives like Newt Gingrich have finally publicly acknowledged that the criminal justice system is infected with racism and that mass incarceration has become a crisis.

Videos have helped the broader public to see the truth in long-standing empirical studies and anecdotes about racial profiling and police misconduct: that being black or brown absolutely matters in terms of one’s chances in the criminal justice system, from traffic stop to trial to prison.

Finally, the most important value of citizen videos in promoting justice is that it’s a technique we all can use, if we are so inclined.

Anyone with a cellphone camera has the power and the right to record police interactions in public as long as the recording is not physically obstructive.

The American Civil Liberties Union’s Mobile Justice and Stop and Frisk apps, among others, are freely available. These apps enable witnesses to submit videos of troubling law enforcement actions to the ACLU while also alerting other nearby users to the incident. The apps thus promote transparency, which is at the heart of the legitimacy of police accountability in our country.

Although many police departments have adopted body cams for their officers, the existence of external videos better ensures that a complete version of events will exist.

The existence of both the citizen videos and the body cam videos will also help community members work with police departments that are seeking to change their procedures and enable more productive conversations about what actually happens in such encounters.

With awareness and discussion, the hope is that the videos will not inflame, but enlighten.

Indeed, in a larger context, United States v. Texas is the flip-side of the Court’s 2012 decision in Arizona v. United States. In that case, a Democratic president successfully sued to stop the enforcement-heavy policies of several Republican-controlled states, including Arizona’s infamous SB 1070. In 2016, it is a coalition of many of those same Republican states attempting to derail what they view as the lax enforcement policies of that same Democratic president. The 26 Republican states and state officials challenging DAPA are also nearly the same mix of states that are currently attempting to defy the State Department’s recent announcement that it will be resettling Syrian refugees in the United States.

As I detail in my book, immigration policy since Sept. 11, 2001, has fallen victim to party polarization in a way that had previously not been true of immigration politics. That polarization largely explains the inability of Congress to pass immigration reform over the past 15 years, despite several attempts and broad support from the American public. In turn, Congress’ silence has cleaved space for two emerging policy dynamics. First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both enforcement-heavy and pro-immigrant policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas and Arizona cases illustrate both trends, and their partisan roots, simultaneously.

Perhaps fittingly, the Supreme Court will likely provide answers to these critical questions in late June…just a few weeks before the Republican and Democratic National Conventions. With congressional gridlock on immigration likely to hold steady at least through the next presidential term, immigration will continue to remain one of the most polarizing and critical issues on our national agenda, with the president and states continuing to wrestle over immigration policy. Depending on the outcome in Texas, we might see states and federal courts increasingly used as the battlegrounds for that highly partisan contest.