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Posts Tagged ‘#lawenforcement’

Let’s Go to the Replay: Effective Use of Video Footage to Defend Constitutional Claims

Posted on: September 27th, 2016

By: Andrew Treese and Kevin Stone

The 1989 premier of COPS, and more significantly the Rodney King incident in 1991, marked the beginning of a new era in law enforcement: the era of “policing on video.”  Technological advances, combined with lower prices and the availability of state and federal grants, spurred law enforcement agencies across the country to equip patrol cars with dash-cam systems.  More recently, the advent of portable digital recorders has prompted departments across the country to deploy body-cams — and in at least one case, the FBI obtained drone-mounted footage of a law-enforcement shooting incident.  Occasionally our clients ask whether this trend is helpful to the defense of civil claims.  The answer?  Yes.  Here’s why:

Our goal in defending excessive force claims is not only to obtain a win for the defense, but to do so as quickly as possible – preferably on a motion to dismiss or for summary judgment.  Without video, excessive force claims often boil down to a “he said / she said” dispute between police officers and suspects. Unfortunately, the presence of conflicting testimony can bar summary judgment, even where the plaintiff’s testimony seems to lack facial credibility, so long as the testimony creates a “genuine dispute” as to material facts in the case.

Fortunately, not all disputes are genuine.  Several years ago, our law partners Phil Savrin and Sun Choy won Scott v. Harris in the United States Supreme Court.  Scott is the principal case addressing the constitutionality of the use of force in police pursuits.  Equally as important, however, is the portion of the opinion that addressed summary judgment in cases involving incidents recorded on video. In no uncertain terms, the Court explained, “At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts. … When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. … Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.”

Since it was issued, Scott has been cited for this principle nearly 2,500 times.  The result is that dash-cam, body-cam, surveillance, and bystander video footage, which are becoming increasingly more prevalent, may provide defendants with a pathway to summary judgment that would not have been available otherwise.  Notably, video is not always a “silver bullet” to obtaining summary judgment.  Key events may take place out of the frame of the camera, audio tracks might not capture key statements or comments, or a court could simply decide that summary judgment is inappropriate based on the facts as depicted in the video.  Dashcam video may also fail to fairly show what the defendant officer would have seen from his position.  Even body-cam video may not fairly depict the officer’s perspective if the video is slowed, paused, and/or viewed numerous times.  Officers, after all, get one chance to watch events unfold at full speed.  Video footage can, however, eliminate disputes about what happened, allowing the court to focus on the legal analysis, rather than parse through each party’s version of the event.

The importance of securing relevant video footage as soon as possible after an incident occurs cannot be understated – not only to permit early case evaluation and avoid spoliation arguments, but to maximize the odds of obtaining summary judgment if suit is filed.  To this end, some states — including Georgia — have begun implementing mandatory retention periods for police video recordings, a topic we will address in a future blog.

Practice Pointer for Local Government Lawyers: In zoning Enforcements Matters, Try to Get Injunction Language in the Final Order

Posted on: August 10th, 2015

By: Coleen Hosack

Glynn County residents had to sit by and watch property owners use their ocean front beach house as a commercial event venue in violation of the Glynn County Zoning Ordinance during the pendency of an appeal because the County did not have an injunction order prohibiting the property owners from doing so.  While the County was successful in convincing the trial court that the property owners were using their property in a manner that was inconsistent with the zoning district and obtained an order saying as much, the trial court did not also enjoin them from using their property as a commercial event venue.  This case illustrates there is a fine line between declaring the rights of parties on a question of law and ordering a party to perform or refrain from performing a specified act. Burton v. Glynn County, S15A0082, Georgia Supreme Court (July 13, 2015). The automatic stay in the Georgia Appellate Practice Act applies to a declaratory judgment order; but the trial court has discretion to enforce an injunction during an appeal.

The Burtons built a lavish ocean-side home in 2008 on property zoned R-6 in Glynn County. The zoning restricted the use of the property to primarily residential use by a single family and other uses that are customarily incidental. In 2010, the Burtons began to regularly allow special events at the house, marketing and promoting the house as “Villas de Suenos” or “House of Dreams” allowing up to 100 or more guests. Following complaints by residents regarding noise, traffic, and parking issues arising from the large scale gatherings, Glynn County issued a cease and desist letter requesting the Burtons immediately discontinue the use because it violated the zoning ordinance.

The Burtons thereafter sued the County seeking declaratory and injunctive relief to stop the County’s efforts to enforce the zoning ordinance so as to prohibit the use of the property as an event venue. The County brought a counter claim requesting the opposite relief. Following an evidentiary hearing, the trial court agreed with the County and issued an order on December 20, 2013 adopting the County’s interpretation of the zoning ordinance and directing the Burtons to comply with the ordinance, so interpreted, in their future use of the property. The Burtons appealed challenging the trial court’s interpretation of the zoning ordinance.

During the pendency of the appeal, the Burtons continued to use the house for special events. The County filed a motion for contempt arguing that their use of the property in this manner was in violation of the trial court’s order; but the trial court denied the motion on the grounds that it lacked jurisdiction because the filing of the notice of appeal acted as an automatic supersedeas pursuant to O.C.G.A. § 5-6-46.  While the County argued this provision did not apply because the order was not just a declaratory judgment order; it was also an injunction order under O.C.G.A. § 9-11-62; the Georgia Supreme Court disagreed. While the order did require the Burtons to use their property consistently with the zoning ordinance, an order is not converted to an injunction merely because it directs a party to comply with the law.

The opinion affirming the trial court’s December 20, 2013 order was not decided until July 13, 2015. This means the Burtons were able to use their beach front property as a commercial venue in violation of the zoning ordinance for an additional eighteen months. Had the trial court included additional language enjoining the Burtons from doing so, the trial court would have had the authority to hold the Burtons in contempt of its injunction order during the pendency of the appeal. The result of this case is a good reminder to make sure you ask the trial court for language in the final order that not only declares the rights of the parties; but affirmatively enjoins the property owner from using the property in a manner that is in violation of the zoning ordinance. Had the trial court’s order enjoined the Burtons from using the property as a commercial event venue, they would have been prohibited from doing so during the pendency of the appeal or at the very least; the trial court would have had the discretion and the teeth to hold them in contempt if they did not comply.