It’s Fun to Strengthen the D-M-C-A

By: Joanna Mrsich

Imagine you are a video game developer or publisher excited about the release of a new game, but to your dismay, you find that popular streamers have uploaded extensive videos of your product to devices like Twitch and YouTube without obtaining your permission. You might find yourself asking “why don’t these platforms do more to protect my intellectual property?” And you just might be right in thinking that they should.

My previous blog post discussed the world of video game streaming and the role of copyright law in it. It also analyzed whether infringement exists in this realm and found that it is a prevalent, but thus far unenforced, issue. This post will focus on the role of platforms and whether the Digital Millennium Copyright Act (DMCA) serves its original intended purpose despite society becoming increasingly technology based. It is important to question whether streaming platforms are able to shirk their responsibilities too easily and if they should have a greater role in protecting their users’ copyrighted works.

Does the DMCA Play Favorites? Copyright Owners Versus Online Service Providers

Last year, the U.S. Copyright Office published a comprehensive U.S. government study and report to assist Congress in evaluating potential updates to the Copyright Act—specifically section 512—given the significant social and technological advancements since its creation. In over twenty years, advancements in technology and business models involved in copyright have evolved and expanded in ways that the DMCA could not foresee in 1998. These advancements and shifts have led the U.S. Copyright Office to conclude that the Digital Millennium Copyright Act is tilted in favor of tech companies rather than copyright owners.  The Copyright Office now suggests that Congress make changes to favor copyright owners. Moreover, the Report addresses whether section 512 is effectively balancing the needs of online service providers (OSPs) with those of creators.

The Copyright Office also discovered a variety of evidence indicating that online piracy remains pervasive despite §512. In a 2013 study by the MPAA, “432 million unique users worldwide explicitly sought infringing content during one month alone.” The MPAA also cited data from 2015 indicating that online sites well known as sources of infringing content encounter millions of unique visitors per month. The advancement in technology over the last seven years since the aforementioned study is nearly immeasurable. The number of global social media users alone has increased from 970 million people in 2010 to 2.96 billion people in 2020. The Report even cites the Association of American Publishers (AAP) in stating that “an increase in the volume does not speak to the effectiveness of the notice-and-takedown process…[given that]…the very same infringing content is easily and quickly re-uploaded to the same site after removals pursuant to previous notifications.” The Copyright Office explicitly states that the divergence in assessments between §512 by OSPs and copyright owners indicates that the DMCA is not achieving Congress’ intended balance. Consequently, the Report singles out areas where improvement is possible and would be beneficial to protect against copyright infringement.

DMCA Knowledge Requirement

One issue the Copyright Office Report notes is that legal precedent based on the current statute has fostered an environment in which companies can deny “knowledge” of infringing content. Additionally, courts have struggled to articulate the appropriate relationship between section 512’s intent to avoid imposing a duty to monitor and the knowledge requirement. A second issue involving the knowledge requirement is that courts have adopted a standard for willful blindness that differs from common law. The adopted standard requires deliberate avoidance of specific incidences of infringement versus a general avoidance of acts of infringement. This Report notes that this modified standard appears to be in tension with Congress’ original intent and scope of willful blindness. Moreover, while OSPs must take action under §512(c) and (d) when they have “actual knowledge” of infringement and are unable to ignore claims, §512 also explicitly states that OSPs have no duty to “monitor its service or affirmatively seek facts indicating infringing activity, except to the extent consistent with a standard technical measure.”

While OSPs argue they are already doing their part to limit infringing material and that strengthening DMCA provisions would limit their innovation and progress, many owners of copyrighted works believe a better balance can be struck. One of the principles used to guide the Study was the notion that internet policy in the twenty-first century cannot be one-size-fits-all.

DMCA Repeat Infringer Policy

The Report further suggests that Congress reevaluate the policy surrounding repeat infringers. While the DMCA currently permits OSPs to terminate accounts of repeat infringers, it does not have clear or uniform standards. Under §512(i)—which defines the conditions for eligibility—a limitation on liability shall apply to a service provider only if they have adopted and reasonably implemented a policy that provides for termination in appropriate circumstances. Moreover, §512(i) requires that service providers “…inform subscribers and account holders of the service provider’s system or network….” In conducting the study, the Copyright Office found that many rightsholders felt courts had shifted the burden to the rightsholder to establish that an OSP was in violation of the requirements in §512(i)(1)(A) by not adopting or reasonably implementing a repeat infringer policy. Additionally, the Report notes that rightsholders were concerned that infringing users could simply create new accounts and avoid culpability under the OSP policy.

Providing such standards could benefit OSPs’ enforcement mechanisms and help them be more proactive in preventing future or repeat copyright infringement from operating on their platforms. The Copyright Office suggested that policies should not require a repeat infringer to have been found liable in court—codifying a Fourth Circuit ruling—and that Congress require a written policy governing repeat infringement from all content providers—overturning a Ninth Circuit decision—so that users are definitively informed of the code of conduct. While the courts have articulated various tests to identify what is required under §512(i)(1)(A)—such as two tests from the Ninth Circuit used to assess whether OSP has fulfilled their obligations—it would be beneficial to further define what constitutes a “repeat infringer,” an adopted policy, and minimum requirements that satisfy “reasonable implementation.”

Conclusion

While the Report does not recommend any direct or wholesale changes to section 215, it identifies critical areas where Congress should reevaluate if the intent and action the DMCA was intended to provide is not being met. These potential reevaluations would aid OSPs, especially streaming platforms, in becoming proactive bodies that help protect copyrighted works from being infringed. Without updating and adapting the DMCA to modern times, it is likely copyright owners will continue to suffer the brunt of the antiquated DMCA’s fallout. Despite Congress’ original intent to provide OSPs with greater certainty regarding their legal exposure, while simultaneously providing copyright owners with assurance of protection, the advancements of technology and the way people interact with it seem to require a more robust form of the DMCA’s §512. As the Copyright Office’s Report addresses, the status quo arguably fails in achieving the level of protection copyright owners deserve from OSPs. As the world evolves, so should the DMCA.

The Shop Safe Act: A Bill to Prevent Counterfeit Medications and Fake Louis Vuitton Bags

By: Kelsey Cloud

Comprising 21.3 percent of total retail sales in the United States, e-commerce, or the buying and selling of products and services over the Internet, signifies a paradigm shift away from traditional brick and mortar stores and toward stores in the digital landscape. By eliminating travel time, reducing cost, and allowing buyers to make purchases at any time of the day, e-commerce enables consumers to make cheap and efficient purchases. However, e-commerce also provides dishonest sellers with a lucrative playing field to sell their counterfeit goods. Every day, approximately $1 billion in counterfeit goods are sold online, and online counterfeit goods make up more than 3 percent of all global trade. By escaping strict authentication regulations, illicit goods such as medications with lethal ingredients threaten public health and safety, as well as infringe the intellectual property rights of legitimate American businesses. To combat counterfeiting, the Shop Safe Act strives to impose necessary incentives to protect consumers from counterfeit products by imposing contributory trademark liability on e-commerce platforms for their third-party sellers’ counterfeit goods. If enacted, the Shop Safe Act would amend the Trademark Act of 1946 to hold these marketplaces liable unless they take certain measures to tackle the gaps in their systems and stop counterfeit sales.

How Counterfeiters Exploit Online Consumers

Historically, many counterfeit products were distributed at flea markets or from trunks of cars, where counterfeiters enticed naive consumers with stands filled with fake Gucci purses and Rolex watches. Now, counterfeit goods can be sold across the globe on websites visited by hundreds of millions of consumers. For counterfeiters, e-commerce has driven down barriers to entry in the retail market, reduced production costs, and provided an air of legitimacy by listing goods on well-known platforms.

Through selling their products on legitimate e-commerce sites, such as Amazon or eBay, counterfeiters move out of underground markets and eradicate consumer red flags such as low quality packaging or suspicious seller locations. Online counterfeiters can easily misrepresent products by uploading photographs of authentic goods while selling counterfeit versions. Reputable platforms such as Amazon are flooded with fake reviews that mislead consumers into thinking the product is trustworthy.

Harm to Consumers, Businesses, and Intellectual Property

The industry sectors most commonly affected by intellectual property theft are manufacturing, software, consumer goods, and biotechnology, including pharmaceuticals. For example, illicit prescription opioid medications, such as Oxycontin, are commonly produced by counterfeiters by diluting an authentic pill with deadly narcotics, such as fentanyl. Counterfeit medications commonly contain carcinogenic and allergenic ingredients, counterfeit lithium-ion batteries pose significant risk of exploding, and counterfeit airbags can cause severe malfunctions such as non-deployment.

Aside from the substantial risks to the health and safety of consumers, counterfeit goods threaten the profits, reputation, and intellectual property rights of legitimate businesses. The sale of counterfeit goods leads to billions per year in lost revenue for U.S. businesses and dislocates hundreds of thousands of legitimate jobs. Not only do trademark owners invest critical resources into maintaining their brands, but their success often hinges on consumers associating their brands with high quality products. Counterfeit products often damage the goodwill associated with the brand and disincentivize business owners from investing resources into developing their brands. By stealing trademarks, trade secrets, and other forms of intellectual property, counterfeiters minimize the need for research and development expenditures and gain an unfair advantage over legitimate businesses.

Policing Counterfeiters: A Game of Whack-a-Mole

Current anti-counterfeiting laws in the United States attach civil and criminal liability to manufacturers and distributors of counterfeit trademarks who use the mark in connection with the sale or distribution of goods or services. However, policing intellectual property theft by counterfeiters has proven to be costly, resource-intensive, and overall ineffective. Billions of mail shipments sent annually make detection and enforcement incredibly difficult, and only a small fraction are actually inspected. Platforms such as Facebook have inbuilt e-commerce functionality that allows sellers to conspicuously message buyers directly and reduce the risk of getting caught. Additionally, foreign sellers of illicit goods are often exposed to relatively low risks of criminal prosecution or civil liability under current law enforcement.

Currently, in order for e-commerce platforms to be held contributorily liable for trademark infringement claims against third-party sellers, the platforms must know or have reason to know of specific instances of infringement and fail to act. For example, in Tiffany v eBay, Tiffany & Co. sued eBay after filing thousands of take-down notices with eBay for counterfeit jewelry products, claiming that eBay had knowledge of sellers infringing Tiffany’s mark yet continued allowing infringing sellers on their website. However, eBay was not liable for contributory infringement because they had only general knowledge of widespread infringement and took immediate action to prevent sales of the infringing products whenever they had specific knowledge of infringement. Since it is difficult to prove specific knowledge of counterfeit sales, brand owners like Tiffany & Co. bear most of the burden of policing the platforms.

The Shop Safe Act Gives E-Commerce Sites an Ultimatum

The Shop Safe Act, introduced in Congress in March 2020, seeks to shift the burden to e-commerce platforms and proposes to establish contributory trademark liability for platforms like eBay unless they demonstrate that they took certain reasonable measures to prevent infringement. The Act outlines a list of 10 requirements that e-commerce platforms must comply with in order to absolve themselves from liability, including vetting sellers to ensure their legitimacy, removing counterfeit listings, and ensuring the platform took reasonable steps to prevent any alleged infringement. The Act creates a safe harbor for platforms that take the 10 reasonable measures and incentivizes the platforms to strengthen their security and enforcement measures against counterfeiters.

For major online retailers such as Amazon, vetting everything posted by third-parties would be extremely time consuming, meticulous, and burdensome. With thousands of new listings added every day, major platforms like eBay argue that it is nearly impossible to catch every counterfeit product, no matter how hard they play whack-a-mole. However, these multi-billion dollar corporations have a responsibility to ensure the safety and reliability of products sold on their platforms to millions of consumers every day. There must be accountability for harmful counterfeit goods that put consumers’ health and safety at risk, and that accountability should not exclusively fall onto the third-parties selling counterfeit goods. Moreover, the Act only requires e-commerce platforms to take certain reasonable measures, understanding that the game of whack-a-mole is nearly impossible to win.

Conclusion

The Shop Safe Act would not only provide protection for consumers against harm to their health and safety, but would protect the profits and intellectual property rights of legitimate American businesses who have devoted countless hours and money into developing their products. Counterfeiting erodes the competitiveness of U.S. businesses, impacts innovation, and disincentivizes businesses from developing intellectual property fundamental to the success of our marketplace. In order to better protect the health of consumers and intellectual property of businesses in the global online marketplace, e-commerce platforms must bear more responsibility for policing counterfeit goods on their websites.

Is Government Use of Facial Recognition Software a Fourth Amendment Violation? Unfortunately for Your Privacy, Probably Not

By: Alex Coplan

Congress has failed to implement uniform guidelines for use of facial recognition (FR) programs. Today, many law enforcement agencies use public photos and videos to aid in criminal investigations. There are concerns that wide-spread public surveillance and use of these programs could violate the Fourth Amendment. However, government observation of people in public generally falls outside the scope of Fourth Amendment protections. Since law enforcement’s use of FR software only enhances public photos and videos, it likely does not count as a “search” under the Fourth Amendment.

Constitutional Implications

Constitutional concerns with FR arise under an individual’s right to privacy. Under the Fourth Amendment’s protection against unreasonable searches and seizures, the question is whether people have an actual expectation of privacy in public, and whether society recognizes this expectation as reasonable. Currently there is little federal framework specifically directed at the use of FR technologies by government and law enforcement entities. Under the third-party exposure doctrine, government observation of people in public is not a “search” for the purposes of the Fourth Amendment. However, as technology improves, so does the ability to survey a person’s public activity. Furthermore, when detailed information is collected regarding a person’s movement, a privacy interest may arise because of the cumulative nature of the information received. Indeed, the Supreme Court in Carpenter v. United States found that long, continuous surveillance using new technologies may implicate privacy interests protected under the Fourth Amendment. Therefore, the constitutionality of using FR technologies may be dependent on how exactly FR services are used.

What Can We Learn from Other 4th Amendment Cases?

The United States does not directly regulate the use of FR technology by either the private sector or government entities. However, a few court cases may shed light on how privacy and the use of electronic surveillance connect.

Government use of technology to monitor public activity may not violate the Fourth Amendment. In United States v. Knotts, the Court addressed whether a GPS tracking device placed in a container and obtained by a suspect exceeded Fourth Amendment limitations. Finding that the device only revealed information that could have been viewed by the general public—like the suspect’s travel on public roads—the Supreme Court held that the use of this technology in this limited capacity did not violate the Fourth Amendment. This holding suggested that the government may use technology to monitor a suspect’s movements in public without a warrant, when that surveillance could be achieved through regular visual surveillance by anyone, not just the police. However, the Knotts court warned that constitutional issues may arise if “twenty-four hours surveillance of any citizen of this country [were] possible.”

In another case that explored GPS motion tracking, concurring Justices in United States v. Jones expressed concerns about extended use of surveillance technology. There, the Court held that placing a tracking device on a suspect’s vehicle constituted a “trespass” prohibited by the Fourth Amendment. In Jones, the FBI placed the tracking device and analyzed the suspects movements for 28 days. In the FR context however, the concurring Justices focused on long-term tracking of a person’s public movements, the information of which could be used for “years into the future.” It was not long before the Court’s concern in Jones—using technology for constant surveillance—was realized.

Long-term surveillance of a suspect may constitute a “search” under the Fourth Amendment. In Carpenter v. United States, the Court held that law enforcement’s use of cell site location data spanning over a 152-day period, which allowed law enforcement to track a suspect’s location, constituted a “search” under the Fourth Amendment. Since this form of surveillance was considered prolonged and continuous, it overcame the presumption of the third-party exposure doctrine that surveillance of public activities does not raise Fourth Amendment issues.

However, the Carpenter court cabined its holding to real-time tracking for periods less than seven days, explicitly stating that the holding was a “narrow” one. While Carpenter and Jones cautioned against long-term tracking of suspects, FR itself may not raise the same exact issues. The use of cell site location information and FR technology is unlikely to be analogous, in that FR technology by itself is not generally used for continuous surveillance. Importantly, FR is not the means of surveillance, but merely enhances photos and videos already taken. In other words, video or photo surveillance in conjunction with FR technology is the concern.

This concern was addressed in Leaders of a Beautiful Struggle v. Baltimore Police Department. In this Fourth Circuit case, the Baltimore Police Department contracted with Persistent Surveillance Systems (PSS) to conduct its Aerial Investigation Program (AIR), which is equipped to fly drones over the city of Baltimore and take video for 40 hours a week. This aerial surveillance technology, combined with BPD’s resources, can give detailed information about an individual’s identity and activity. Regardless, the Fourth Circuit concluded that people do not have a right to avoid being seen while in public and that the AIR program sought to meet serious law enforcement needs with limited privacy invasions.

FR Use Does Not Violate the Fourth Amendment, but Further Regulation is Required

As long as FR only uses public video and photo surveillance, capturing only what the naked eye can see, the use of FR only enhances information already in public view. Additionally, law enforcement’s use of DMV photos or other images held by third parties, combined with FR technology, likely does not violate Fourth Amendment privacy rights. As a result, the third-party exposure doctrine likely applies, as was found in Leaders of a Beautiful Struggle v. Baltimore Police Department. Indeed, although the Court in Carpenter found the prolonged use of cell-site location information a violation of the reasonable expectation of privacy, the purely visual and public nature of the surveillance with regard to FR programs would likely not implicate the Fourth Amendment.

The cases described above demonstrate that the use of FR technology in public likely does not result in an unreasonable search, as long as the surveillance remains in a public place. The use of FR programs in more private settings, however, may lead to privacy implications protected by the Constitution.

As a result, the weight of the problem falls more heavily on the accuracy of FR programs rather than Fourth Amendment issues. If an FR program were to be wrong, an innocent person may be investigated, or even arrested, for a crime they did not commit. This is an abhorrent result for a technology made exclusively for the purpose of making positively identifying criminals easier. Federal legislation is hopefully not too far off. Until FR can be perfected, national regulation is required to ensure the use of such software is not abused.

Post-mortem privacy rights: dying with indignity in the digital age

By: Nicole Buckley

Last Friday night, my roommate struck up a conversation with me as he heated rice on the stovetop. “Did you hear about the murder-suicide in Pennsylvania yesterday? Some guy shot his neighbors, then went back inside his house, grabbed an AR-15, and sprayed their bodies with bullets. A home security system caught all of it.” I paused, then: “Wait. Are you saying you clicked on a video and watched two people die?” Indeed, he had.

Although gruesome content is de jure banned on major social networking sites like Facebook and Twitter, other platforms are much more liberal in what content they permit users to post, view, and share. To that end, “free speech” is a dog whistle for graphic, violent, or hateful content on forum-style websites like Reddit, Gab, and Bitchute. Rather than removing or obscuring graphic content, these “free speech” platforms tend to be breeding grounds for the fetishization of extreme violence. The video my roommate elected to click on is one example among many.

At present, the legal community is laser-focused on so-called “free speech” platforms, Section 230 of the Communications Act of 1934, and election-related disinformation. Admittedly, I am, too. However, questions about post-mortem privacy in the digital age—for now lurking beneath the surface of popular debate—seem primed for the spotlight in years to come. If alternative platforms are positioned as ready and willing to host videos depicting murder, what is the legal community to make of it? How far does Section 230 extend? If users are unable to reach platforms to remove the content, would they be able to bring a tort claim against other users on behalf of the decedent(s) depicted? Some questions are easier to answer than others. The second question is difficult to answer. The last question is likely to produce a simple response: no.

Ironically, even though privacy rights appear to be an invention tailored to curtail the inquisition of technology on various subsections of society, privacy law lags behind advancements in the digital age. Thus, despite public opinion surveys suggesting a general desire to expand privacy rights online, the expansion of those rights has proved difficult. This is largely because an individual’s privacy rights are thought to terminate upon their death. Salting the wound is the common law majority view that a decedent’s estate may not bring an action to protect that decedent’s privacy interests. As such, depictions of gruesome deaths can be extraordinarily difficult to remove from the internet.

The debate around internet-era post-mortem privacy rights has been brewing for over a decade. After a teenager died tragically in a car accident, photographs of her decapitated body were plastered across the internet. Although the decedent’s family pursued legal recourse, eventually settling with the law enforcement agency responsible for leaking the photographs, a quick search on Reddit reveals that the images are still being circulated. Two interesting points emerged from this case. First, the California Court of Appeals never reached the privacy claim on the merits due to the family’s decision to accept and out-of-court settlement. Therefore, although the court appeared willing to entertain a privacy discussion, the privacy issue was not litigated and the law is thus unclear. Second, and prior to settlement, the law enforcement agency relied on the First Amendment as a defense.

The collision of Section 230, the First Amendment, and post-mortem privacy is inevitable. First Amendment jurisprudence, often thought to be in tension with privacy rights, permits platforms that host content depicting graphic content to claim “newsworthiness” as a legal defense. Additionally, Section 230 absolves internet platforms of liability for failing to remove most user-generated content. Not only are decedents disadvantaged in a common law privacy context, but constitutional jurisprudence and federal regulatory law also fail to provide litigants with adequate legal recourse.

Thus, theoretically available avenues to relief appear sealed shut: decedents’ estates cannot easily sue the people who shared content depicting a loved one’s death, nor can they get at the platforms hosting the content. As Danielle Citron Keats points out, the available private responses meant to curb abuse online are wholly inadequate. Yet, all hope is not lost; there is still time to broaden scholarly debate about private rights in the context of the digital age. After all, the common law is not inflexible, and debate around Section 230 is presently reaching a fever pitch. As a new generation of lawyers enter practice, it is imperative we consider online privacy rights against their origin story: a mechanism developed not only to check technology, but to balance its uses with the good of society. If death is to retain dignity in the digital age, private rights of action must be accorded more opportunity to succeed.

Settlements Are No Longer an Option: Utilizing Cameras to Pierce the Shield of Qualified Immunity

Photo by Karolina Grabowska on Pexels.com

By: Marcena Day

Have you seen the video of the Black child killed by the police? You know, the one where the police threw a flashbang into a house?  She was asleep in the living room with her grandmother when her blanket caught fire from the flash bang. The police appear frightened (but courageous enough) to enter the unknown domain—her home. Lifeless, Black flesh lays on the floor. Have you seen it? 

Aiyana Stanley-Jones was seven years old when she was killed by Detroit Police Officer Joseph Weekly during an arrest warrant execution. In May 2010, a TV camera crew was filming the operation for an upcoming episode for a police reality show. Once again, Black Americans and other racial justice allies instinctively demanded justice. The marches and rallies had similar messages following Breonna Taylor’s death in 2020. These demands highlight how Black Americans are historically conditioned, by both the justice system and the political-social sphere, to be subjected to state-sanctioned acts of anti-Black violence. Today, Black Americans have a crucial tool at their disposal: video recordings of their interactions with the police. 

Video recording of police interactions have the power to both  implicate and exonerate officers. But what purpose do these recordings have in an anti-racist criminal justice system? Social scientist James C. Scott, in his book Domination and the Arts of Resistance, contends a significant aspect to maintain relations of domination “consists of the symbolization of domination by demonstrations and enactments of power.” Saidiya Hartman , in her book Scenes of Subjection: Terror, Slavery, and Self-making in Nineteenth-Century,supplements, “[t]hese demonstrations of power consisted of forcing the enslaved to witness the beating, torture, and execution of slaves…such performances confirmed the slaveholder’s dominion and made the captive body the vehicle of the master’s power and truth.” Perhaps viral video recordings of Black Americans being beaten, tortured, and executed only reinforce white supremacy in the United States? 

This article grapples with this question. Part I discusses the public’s right to record the police and how video recordings help plaintiffs navigate 42 U.S.C. § 1983 suits (lawsuits that allow people to sue state actors such as the police for civil rights violations). Part II explores the legal stalemate § 1983 suits face due to qualified immunity. Part III recommends § 1983 claimants to refrain from settling and instead use video recordings to help pierce the shield of qualified immunity. 

Using video recordings of police interactions to prove § 1983 suits

The facts and circumstances are crucial in § 1983 suits, thus video recordings may offer the “truth objectively” that can implicate or exonerate officers when the facts are unclear. 

The Ninth Circuit, in Fordyce v. City of Seattle,  recognized a First Amendment right for individuals to record police and other public officials performing their public functions in public spaces. Armed with this knowledge, Black America frequently records their interactions with the police. Philando Castile’s girlfriend, Diamond Reynolds, recorded his execution on a Facebook live. Dreasjon “Sean” Reed similarly captured his final moments on his Facebook live. Police body cameras and helicopter footage recorded Stephon Clark’s killing in his backyard. Most infamously, police body camera video recorded the 8 minutes and 46 seconds of an American being tortured and killed on the street. In each case, their descendants filed suits alleging excessive force.  

Individuals may sue the police for excessive force under 42 U.S.C. § 1983. In § 1983 suits the officer’s actions are judged by a reasonableness standard “not capable of precise definition or mechanical application.” The application of the reasonableness standard “requires careful attention to the facts and circumstances of each particular case.” Relevant factors to evaluate include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Criminal Procedure Professor Mary Fan argues, “[f]actual details make all the difference in civil rights suits, and it is these details that are intensely disputed and hard to reconstruct.” Accordingly, video recordings can “offer an important source of evidence to courts and juries wrestling to apply fact-intensive standards.” She suggests there is hope that recordings will present the “truth objectively.” Fan contends, “the power of video is to take the case directly to the people, generating pressure to settle cases outside the formal confines of the courtroom and doctrines such as qualified immunity.” This argument is notable and highly persuasive, but choosing this route comes at a high price in an anti-racist criminal justice system. 

Qualified immunity sets a high bar for justice

Qualified immunity shields police officers “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The plaintiff must allege facts showing a violation of “a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.” To be clearly established, “existing precedentmust have placed the statutory or constitutional [violations] beyond debate.” (emphasis added). To have “existing precedent,” a previous court must enter a final order on the merits. Essentially, plaintiffs go to trial for a court to enter a final order. This creates stare decisis—which governs how courts apply rules to future cases. Yet, even if plaintiffs go to trial, § 1983 suits may be dismissed based on qualified immunity by the judge without her determining whether the conduct alleged violated a statutory or constitutional right.

This poses a unique (and deadly) legal stalemate: there may never be an existing precedent that places the injuries alleged in a § 1983 suit “beyond debate” because of (1) judicial discretion or (2) the plaintiff settled prior to trial. Which begs the question, what is the purpose of video recordings of the police beating, torturing, and executing Black Americans if the court never enters a final order to hold the police accountable? 

Plaintiffs should refrain from accepting settlements to overcome qualified immunity

It is highly unlikely to curb judicial discretion, but plaintiffs can utilize video recordings to demonstrate similar and recurring violations of “a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.” 

Recall Detroit Police Officer Joseph Weekly. He and his team executed a no-knock warrant—a warrant that allows police to enter property without prior notification—in the killing of Aiyana Stanley-Jones. All charges against Weekly were dismissed and the Supreme Court denied hearing an appeal. On April 2, 2019, Weekly returned to active duty on a “restricted” basis. The family of Stanley-Jones agreed to an $8.25 million settlement with the city of Detroit. The story of Stanley-Jones is similar to other Black women killed by the police during a no-knock warrant. Simply put, the fact pattern and underlying statutory or constitutional right violations of Stanley-Jones’ § 1983 suit may transcend beyond her own experience

The shield of qualified immunity can be pierced if litigators collect video recordings of similar fact patterns that suggest the same statutory or constitutional violation thereby creating a “clearly established” constitutional right. Thus, plaintiffs should redirect the power of video recordings away from exacting settlements and toward demonstrating the same statutory or constitutional violation that can be ‘clearly established’. 

For no-knock warrants, litigators can compile video recordings with similar fact patterns and argue the police use of force violates the same searches and seizures rights protected by the Fourth Amendment. But plaintiffs must first reject settlement to weaken the legal stalemate § 1983 poses to help build stare decisis. As Black Americans continue to record their interactions with the police, this application could be broader than no-knock warrants, e.g., Terry stops and frisks as seen in the cases of George Floyd, Philando Castile, Dreasjon “Sean” Reed, and Stephon Clark. Otherwise, the video recordings are merely another video of an American citizen being beaten, tortured, and executed by officers sworn to protect them.