Assessing the Impact of Police Body Camera Evidence on the Litigation of Excessive Force Cases

• Publication year: 2019

Assessing the Impact of Police Body Camera Evidence on the Litigation of Excessive Force Cases

Mitch Zamoff
University of Minnesota Law School, mezamoff@umn.edu

ASSESSING THE IMPACT OF POLICE BODY CAMERA EVIDENCE ON THE LITIGATION OF EXCESSIVE FORCE CASES

Mitch Zamoff^*

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In the wake of several hotly debated and widely publicized shootings of civilians by police officers, calls for the increased use of body-worn cameras (bodycams) by law enforcement officers have intensified. As police departments across the country expand their use of this emergent technology, courts will increasingly be presented with video evidence from bodycams when making determinations in cases alleging the excessive use of force by the police. This Article tests the hypotheses that bodycam evidence will be dispositive in most excessive force cases and that such evidence will positively impact the way those cases are litigated and decided. In doing so, it presents the first review of the evidentiary impact of bodycams on the outcomes of excessive force cases. By compiling and evaluating the first data set of reported excessive force cases filed in the federal courts involving bodycam evidence, this Article makes several findings about how this highly anticipated evidence is affecting excessive force litigation and jurisprudence. Those findings include (1) about one-third of all bodycam videos submitted in support of defense summary judgment motions do not capture the entire incident at issue in the lawsuit; (2) whether a bodycam video is complete or partial has a profound impact on summary judgment outcomes in bodycam cases; (3) bodycam evidence improves defendants'

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likelihood of success on summary judgment in excessive force cases only if the bodycam video is complete; (4) defendants are actually more likely to prevail on summary judgment in excessive force cases without any bodycam video evidence than in cases with a partial bodycam video; and (5) summary judgment motions are filed and adjudicated more expeditiously in excessive force cases with bodycam videos (especially complete videos) than cases without bodycam evidence. These findings illustrate both the benefits and limitations of current bodycam technology, suggest the need for America's police departments to accelerate the adoption of bodycam programs and promulgate policies that will maximize the evidentiary value and accuracy of bodycam evidence, and highlight the need for continued research to inform policy and funding determinations related to the use of bodycams by law enforcement.

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I. Introduction..............................................................................5

II. Bodycams in American Policing............................................8

III. Bodycams in 2020: Popular in Concept but Facing Meaningful Barriers to Adoption................................10

IV. Predictions About the Impact of Bodycam Evidence in Court..................................................................................14

A. THE PROPONENTS: BODYCAM EVIDENCE—WHICH SHOULD BE DISPOSITIVE IN MANY CASES—WILL POSITIVELY IMPACT LITIGATION AND DECISION-MAKING IN EXCESSIVE FORCE CASES.............................................................................15
B. THE SKEPTICS: BEWARE OF BODYCAM EVIDENCE..............18
C. TESTING THE PREDICTIONS ABOUT BODYCAM EVIDENCE IN EXCESSIVE FORCE LITIGATION........................................20

V. Methodology..........................................................................22

A. BASIC PARAMETERS..........................................................25

1. Section 1983 Is the Primary Vehicle for Asserting Excessive Force Claims Against the Police..............26
2. Most Section 1983 Cases Are Litigated in Federal Court........................................................................27
3. Most Section 1983 Excessive Force Actions Involve a Defense Summary Judgment Motion...................... 28

B. THE BODYCAM CASES........................................................30
C. THE COMPARISON GROUP..................................................32
D. DATA COLLECTED AND ANALYZED....................................34

1. Summary Judgment Decisions and Rationales........34
2. Information Regarding the Bodycam Evidence........ 34
3. Information Regarding the Nature of the Police Encounter................................................................. 34
4. Information Regarding the Length of Time it Took the Summary Judgment Motion to Be Filed and Decided.....................................................................35

VI. Findings..................................................................................35

A. ALMOST ONE-THIRD OF THE BODYCAM CASES INVOLVE

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BODYCAM VIDEOS THAT DO NOT CAPTURE THE ENTIRE ENCOUNTER AT ISSUE IN THE LAWSUIT.......................... 36
B. LAW ENFORCEMENT DEFENDANTS ARE FAR MORE LIKELY TO PREVAIL ON SUMMARY JUDGMENT MOTIONS WHEN THE BODYCAM FOOTAGE CAPTURES ALL, RATHER THAN JUST PART, OF THE ENCOUNTER AT ISSUE IN THE LAWSUIT .... 39
C. BODYCAM EVIDENCE IMPROVES DEFENDANTS' LIKELIHOOD OF SUCCESS ON SUMMARY JUDGMENT ONLY IF THE BODYCAM VIDEO IS COMPLETE........................................42
D. DEFENDANTS ARE LESS LIKELY TO SUCCEED ON A SUMMARY JUDGMENT MOTION SUPPORTED BY A PARTIAL VIDEO THAN NO VIDEO AT ALL ............................................................ 45
E. OUTCOMES REMAIN RELATIVELY CONSTANT REGARDLESS OF WHETHER THE POLICE WERE RESPONDING TO A CALL OR ON ROUTINE PATROL.......................................................48
F. BODYCAM CASES TAKE LESS TIME TO LITIGATE THAN NON-BODYCAM CASES ..................................................... 49

1. Bodycam Videos, Especially if Complete, Expedite the Filing of Summary Judgment Motions...................50
2. Courts Decide Summary Judgment Motions More Quickly When Bodycam Evidence Is Involved........ 51
3. The Early Returns Strongly Suggest that Bodycam Evidence Is Accelerating the Disposition of Excessive Force Litigation....................................................... 52

VII. Where Do We Go From Here?............................................52

A. POLICE DEPARTMENTS SHOULD ACCELERATE THE IMPLEMENTATION OF BODYCAM PROGRAMS AND PROMULGATE POLICIES THAT MAXIMIZE THE EVIDENTIARY VALUE OF BODYCAM VIDEOS ........................................... 53
B. QUESTIONS FOR THE FUTURE........................................... 57

VIII. Conclusion ......................................................................... 59

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I. Introduction

In the wake of several hotly debated and widely publicized shootings of civilians by police officers, tensions between the police and civilians are high—and trust in law enforcement, at least among certain communities, is low.¹ Amid the many theories about what is wrong with American law enforcement and how to make it better, there is growing consensus that outfitting police officers with body-worn cameras (bodycams) is one of the reform measures most likely to have a positive impact on the situation. While commentators have expressed concerns about the privacy implications of bodycams, the ability of police officers to manipulate bodycam evidence (for example, by selectively turning the camera on and off), and the outsized psychological impact bodycam evidence might have on a finder of fact, their concerns typically focus not on whether to deploy bodycams at all but how to regulate and optimize their use. In fact, few, if any, observers have advocated against the use of bodycams altogether since most agree that the potential benefits of bodycams outweigh the potential downsides of this emergent technology.

The projected benefits of bodycams fall principally into two categories: (1) impacting behavior—both police and civilian—on the streets; and (2) impacting the quality of evidence in court, both in criminal cases and when disputes arise between civilians and the police about the reasonableness of law enforcement conduct.²

As to the first category of expected benefits, researchers already have begun testing the predictions that bodycams will improve police and civilian behavior and community-police relations. Field studies have been conducted in police departments across the country which have generated the first data sets regarding the effects of equipping police officers with bodycams. Four of the

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principal initial studies were conducted in Rialto, California (2012-13),³ Mesa, Arizona (2012-13),⁴ Phoenix, Arizona (2013-14),⁵ and San Diego, California (2015-17).⁶ While the results of these studies vary, they generally provide support for the propositions that equipping officers with bodycams (1) reduces the number of civilian-police interactions involving the use of force by the police and (2) decreases the number of civilian complaints against the police involving alleged excessive force.⁷ A few cross-department studies have yielded similar data.⁸ While there is more data

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collection and analysis to be done,⁹ the preliminary results of these empirical studies are generally encouraging.

But what about the other key projected benefit of bodycams—that their real-time video recordings of police-civilian encounters will have game-changing evidentiary value in excessive force cases? Although that hypothesis has been the source of robust debate, it has not been the subject of empirical research prior to this Article.

This Article provides the first assessment of the evidentiary impact of bodycam videos on the outcomes of excessive force cases. By comparing a group of excessive force cases without bodycam evidence to a group of excessive force cases with bodycam evidence from the same federal districts during the same period of time, this Article concludes that bodycams are already making their mark in excessive force litigation.

The cases with bodycam evidence decided to date reveal, among other things, that (1)...