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.