Orwell's Vision: Video and the Future of Civil Rights Enforcement

Howard M. Wasserman, Florida International University College of Law

Abstract

The future of the enforcement of civil rights and civil liberties is linked to video. New portable technology—digital cameras, phones, camera-ready cell phones, MP3 recorders, and other technology—enables the public to produce their own personal record of their lives and environment, including records of their confrontations with police and of encounters they witness between government officials and other members of the public. At the same time, law enforcement has equipped itself to record its own encounters with the public, in the privacy of the interrogation room and on the streets. The result is a balance of power in which all sides can record most police-public encounters—Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.

This balance triggers the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video—as evidence in constitutional litigation under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, dismissing criminal charges, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second is the recent pathbreaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman, sowing that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer’s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer’s identity-defining cultural characteristics of race, age, sex, socio-economic status, education, cultural orientation, ideology, and party affiliation. These insights together demand a level of caution—a degree of judicial humility in how certain they should be about what they (believe they) see or understand from the recording and the appropriate legal and policy steps to take in response.

This paper explores the role and impact of video in litigating and enforcing constitutional rights and litigating civil-rights controversies. Video evidence is beneficial and promotes justice by providing probative evidence that helps show (to judges, juries, policymakers, and the public) whether a constitutional violation occurred. But, because the meaning of video is not as objective, unambiguous, and singular as the myths suggest, and because inevitable interpretations of video will be subject to culturally tinged differences, video evidence should not be over-emphasized or allowed to overwhelm decision making processes. Most importantly, courts must not use misunderstandings of video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video’s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.