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


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.