Citizens’ Right to Record the Police (Part 2)

This is the second blog post installment in a multi-part series on citizens’ right to record the police.

Exercising the right to the record the police can be instrumental to holding officers accountable and seeking justice.

In 2021, police in the United States killed 1,149 people. There were only fifteen days during the entire year when an officer did not kill someone. However, unless there is a high profile killing or a video goes viral, the general public typically does not hear about daily police violence. For this reason, it can be extremely important for citizens to exercise the right to record the police performing their duties in public.

In many cases, video recordings of police by bystanders have been the only way to know with confidence what really happened in an encounter. That is especially true in cases in which the person best positioned to challenge the police’s description of what transpired – the victim – is dead because of what the police did to them. In the case of George Floyd, for instance, police officers’ initial statement falsely claimed that Floyd died as a result of a “medical incident during a police interaction.” There was no mention that the officers restrained Floyd in a prone position, or that Chauvin kneeled on his neck in excess of nine minutes. It was only after a member of the Minneapolis Police Department’s communications team showed the police chief Darnella Frazier’s video that the police chief knew what truly happened and fired the four officers involved.

The importance of video footage in George Floyd’s case is difficult to overstate. George Floyd’s family agreed to a $27 million settlement from the city of Minneapolis to settle their civil lawsuit over Floyd’s murder. Moreover, a Minnesota state jury found Officer Derek Chauvin guilty of second-degree murder, third-degree murder, and second-degree manslaughter. He was sentenced to over twenty-two years in prison. He was further charged in federal court for violating Floyd’s civil right to be free from the use of unreasonable force, along with the three other officers involved in Floyd’s murder – Officers Kueng, Lane, and Thao. Chauvin ultimately pled guilty to the federal charges and admitted to willfully violating Floyd’s constitutional rights. He was sentenced to twenty-one years in prison, to be served concurrently with his state criminal sentence. The other three officers were tried together at a later date. A federal jury found all three officers guilty of willfully violating Floyd’s constitutional rights by not providing medical care when he lost a pulse. Officers Kueng and Thao were also found guilty of failing to intervene to stop Chauvin from his use of unconstitutional force. The judge sentenced Officer Lane to two and a half years in prison, Officer Kueng to three years in prison, and Officer Thao to three and a half years in prison. The three involved officers also faced state criminal charges. Officer Lane pled guilty to the charge of aiding and abetting manslaughter. He was sentenced to three years in prison, to be served concurrently with his federal sentence.

Indeed, there may well have been no justice at all for George Floyd and his family had there been no video of his murder. Sadly, an untold but undoubtedly enormous number of victims of police unjustified violence were left without any remedy before videorecording of the police (thanks to cell phones, body worn cameras, etc.) became commonplace.

A similar situation to George Floyd’s case happened in the case of Rodney King. In March of 1991, King led officers on a high-speed chase through Los Angeles. When police finally stopped him, they ordered him out of the car, and then brutalized him for 15 minutes. While officers beat King with batons and tased and kicked him, a neighbor captured the whole incident on his camcorder from a balcony across the street. This recording has since been coined the “first viral video.” King suffered a fractured facial bone, a broken right ankle, and multiple bruises and lacerations as a result of his beating. The Los Angeles County District Attorney charged four of the officers involved with assault and use of excessive force. Ultimately, the jury acquitted all four officers, and within hours of the verdict, the 1992 Los Angeles Riots began. The riots lasted six days, with similar, smaller, riots taking place across the United States. Following the acquittals and riots, the U.S. Justice Department sought federal indictments of the police officers for violations of King’s civil rights. The jury found one of the officers guilty of willfully and intentionally using unreasonable force and the sergeant guilty of willfully permitting and failing to take action to stop the unlawful assault on King. They were each sentenced to thirty months in prison. While the other two officers charged were acquitted, they were each fired from the LAPD for their rule in the beating.  King subsequently filed a civil negligence lawsuit of his own against the city of Los Angeles. He was ultimately awarded $3.8 million in damages and $1.7 million in attorney’s fees.

More recently, in August of 2022, three Arkansas police officers were removed from duty and face both state and federal investigations for unjustifiably punching, kneeing, and slamming a suspect’s head into the ground during an arrest. A thirty-four second video caught the entire incident. The Crawford County Sherriff’s Office stated that the video circulating on social media prompted the suspension and investigation of the officers.

In short, cell phone footage can be critical in bringing light to incidents of police brutality and police misconduct. We would perhaps not even know the names Freddy Gray, Philando Castile, Walter Scott, Eric Garner, and more victims of police misconduct had eyewitnesses not exercised their right to record the police. Even in cases where officers are ultimately not charged or are charged and later acquitted, having the footage is key to the national conversation and policy considerations going forward, along with holding the police liable for monetary damages in civil actions The city of Baltimore agreed to a $6.4 million settlement with the family of Freddy Gray. Philando Castile’s family settled for $3 million with the city of St. Anthony, Minnesota, with an additional $800,000 for Castile’s girlfriend, who live streamed his graphic murder. The city of Charleston reached a $6.5 million agreement to settle the civil claims brought over the death of Walter Scott. And, the Garner family received $5.9 million from the city of New York over the killing of Eric Garner on Staten Island. Monetary damages, like these, can have major impacts on public policy, and also provide an important remedy to the victims and their families.

Bystander recordings also can help fill holes left from police body camera footage.

Body cameras have become part of the national conversation in helping to mitigate police violence and systemic racism. While some states require officers to wear body cameras, including Colorado as of January 2023, there are still exceptions which allow officers to turn the camera off, footage can be tampered with, and the footage is not always dependable in showing what really happens in police interactions. The increasing use of body worn cameras is certainly a positive development, but it is not guaranteed to fully capture police interactions with the public. In the tragic case of Elijah McClain (a civil case handled in substantial part by our firm), Aurora police and paramedics brutally murdered an unarmed young Black man in Aurora, Colorado. All three officers’ body cameras allegedly “fell off” while they were beating him. Body camera video therefore failed to capture the entire event on video (though audio continued to record). Such instances highlight the importance of additional measures that record police conduct, like bystander videos.

In a final blog post installment, we will conclude our discussion of citizens’ right to record the police.

This blog exists for educational and informational purposes only. It should not be seen as legal advice on any subject matter and does not form an attorney-client relationship. Readers should consult with their own counsel regarding any legal questions they have related to a specific circumstance. Additionally, any information contained on the blog is true and accurate to the best of our knowledge, but there may be omissions, errors, or mistakes. Particularly because the law regarding an issue can change over time, this blog should not be used as a substitute for the reader’s own legal research.