Police Misconduct, Video Recording, and Procedural Barriers to Rights Enforcement
39 Pages Posted: 12 Dec 2017 Last revised: 19 Dec 2017
Date Written: December 11, 2017
The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak for itself" and the procedural and evidentiary problems flowing from that mistaken belief; 2) the evidentiary advantages video provides police and prosecutors; 3) procedural limits on efforts to enforce a First Amendment right to record, such as qualified immunity and standing; and 4) the effects of video on government decisions to pursue criminal charges against police officers and to settle civil-rights suits alleging police misconduct.
Keywords: First Amendment, free speech, qualified immunity, procedure, body cameras, police reform
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