Video and the Future of Excessive Force Law

I just learned about the shooting and death of Philando Castile by police officers during a traffic stop in Falcon Heights, Minnesota. Buzzfeed, the Los Angeles Times, and CBS Minnesota currently have reports on the shooting, although I expect more outlets will report on this soon. From Buzzfeed:

A Facebook Live video posted Wednesday night appeared to show the aftermath of a black man’s fatal shooting by police officers in Falcon Heights, Minnesota. 

Saint Anthony police confirmed the man died but did not release his name. Multiple local news outlets identified him as 32-year-old Philando Castile.

Police said Wednesday that the shooting took place after a traffic stop about 9 p.m. local time. A gun was recovered from the scene. 

Saint Anthony Sgt. John Magsen said he was aware of the Facebook video, but couldn’t confirm that it was of the incident. The video was temporarily removed, but reappeared on the page later with a graphic warning. 

. . .

The video was posted by Lavish Reynolds, who said she was the man’s girlfriend and streamed the graphic encounter from the seat of a car. The man is seen sitting in the other seat, his white shirt soaked in blood.

The link in the text quoted above leads to Reynolds' Facebook account. Currently, the video is the top post at the account, and those who wish to view it are warned that it is indeed graphic.

The Castile shooting follows on the heels of the widely publicized shooting of Alton Sterling, which occurred early on Tuesday in Baton Rouge, Louisiana. Reports on the Sterling shooting can be found here and here. As the Washington Post reports, the Sterling shooting lead to "outrage" and protests, the force of which were bolstered by a trend of widely-publicized instances of lethal force:

Police departments nationwide have grappled with how to quell public distrust after police shootings. Protests have erupted in dozens of major U.S. cities —from Cleveland to Minneapolis to New York — in response to police shootings during the past two years. In both Ferguson, Mo., and Baltimore, demonstrations gave way to nights of rioting and violence as frustrated community members demanded answers following the deaths of Michael Brown in Ferguson, and Freddie Gray, who died in police custody in Baltimore.

Both the Castile and Sterling incidents involved graphic video of the shootings. As smartphones continue to proliferate, it is far easier for witnesses or parties to obtain footage of instances in which law enforcement officers allegedly exercise excessive force. In both the Castile and Sterling incidents, videos of the incidents (or their aftermath) quickly spread across the internet, prompting strong reactions and criticism of the police officers' conduct.

Cases like this lead me to wonder whether the spread of easily-accessible video technology will lead to changes in excessive force law, particularly in cases involving lethal force. The Castile case in particular reminded me of an excessive force (42 U.S.C. §1983) lawsuit in Gonzalez v. City of Anaheim, (which I learned about through Shaun Martin's excellent California Appellate Report) back in 2013. Gonzalez consists of two opinions: a 2013 opinion by a three-judge panel, and a 2014 opinion in which an en banc Ninth Circuit reversed the 2013 decision. In Gonzalez, officers stopped Gonzalez's vehicle after observing Gonzalez make an illegal left turn and weave within his lane, and after noting that, after running the vehicle's plate, that "the van had been involved in a prior narcotics stop." The 2014 decision describes what ensued:

The officers exited their vehicle and approached the minivan from both sides. Ellis approached from the driver's side, and Wyatt approached from the passenger side. Wyatt drew his gun. Wyatt thought he saw Gonzalez reach for something between the driver and passenger seats and warned Gonzalez that if he reached down again, Wyatt would shoot. Gonzalez at that point complied and held his fists in his lap. 

The officers told Gonzalez to turn off the vehicle and open his hands, which he held clenched. Ellis tried to open the driver's side door, but it was locked. The officers reached through the minivan's open windows and opened the driver and passenger side doors. Ellis saw Gonzalez pull his hand out of a bag located between the two front seats. Ellis observed a plastic bag in Gonzalez's right fist. Ellis told Gonzalezto turn off the vehicle and give him his hands. Gonzalez did not respond to that command. 

Wyatt reached into the car, struck Gonzalez's elbow three times with a flashlight, and told Gonzalez to open his hand. Gonzalez then raised his hand up to his mouth, as if to swallow what he was holding. Ellis grabbed Gonzalez. Wyatt testified that he thought Ellis was trying to apply a carotid restraint, but Ellis testified that he was only trying to gain control of Gonzalez's hands. Wyatt also observed that Gonzalez had a clenched fist and was reaching downward with his left hand. Wyatt called for assistance on his police radio. Wyatt went around to the driver's side to try to help Ellis restrain Gonzalez, but was not able to do so. 

Wyatt went back to the passenger side, entered the minivan, and began punching Gonzalez in the head. Ellis observed Gonzalez reaching for the minivan's gear shift with his right hand. Ellis thought Gonzalez was attempting to shift the car into drive so Ellis used his flashlight to hit Gonzalez on the back of the head to try to stop him. 

Despite the officers' efforts, Gonzalez managed to shift the minivan into drive, and the minivan began moving. Ellis withdrew from the vehicle as it began moving and struck Gonzalez in the head as he did so. The front passenger door closed behind Wyatt, who remained in the vehicle. 

Ellis stated that Gonzalez "stomp[ed]" on the accelerator. Wyatt said that Gonzalez"floored the accelerator" and that the vehicle "violently accelerated."
Wyatt yelled at Gonzalez to stop the car, but he kept going. Gonzalez swatted Wyatt's hand away as he tried to turn off the ignition or shift the transmission to neutral or park. Unable to stop or gain control of the car, Wyatt drew his weapon and shot Gonzalez in the head, killing him. He shot from a distance of less than six inches. The minivan hit a parked car and came to a stop. 

Wyatt testified that he fired the shot less than ten seconds after the car started moving, and it could have been less than five seconds. He estimated that the car moved approximately 50 feet in that time and was going 50 miles per hour at the time of the shot.

The initial majority determined that the Plaintiff's excessive force lawsuit was barred by qualified immunity, noting that "when Gonzalez tried to shift the van into drive with an officer in the vehicle, the situation became substantially more dangerous, and the officers' justification for force increased commensurately." Judge Clifton dissented, however:

"Deadly force cases pose a particularly difficult problem," we have observed, "because the officer defendant is often the only surviving eyewitness." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). This is one of those cases. Rafael Gonzalez is dead and cannot speak for himself.

Judge Clifton also noted that there were inconsistencies in the officers' testimony and ultimately wrote the en banc decision reversing the 2013 opinion, reiterating the importance of consistent officer testimony:

Because Gonzalez is dead, the police officers are the only witnesses able to testify as to the events that led to Gonzalez's death. In such a circumstance, we must carefully examine the evidence in the record to determine whether the officers' testimony is internally consistent and consistent with other known facts. After conducting such a review, we conclude that a significant inconsistency in the officers' testimony was sufficient to present a genuine dispute of material fact. Based on the current record, summary judgment on the plaintiffs' claim for deadly excessive force was inappropriate. We reverse and remand that claim for further proceedings.

Of particular note was the testimony regarding the distance the vehicle traveled and its speed:

As described above, Ellis testified that Gonzalez "stomp[ed]" on the accelerator, and Wyatt said that Gonzalez "floored" it. Wyatt specifically testified that the minivan "violently accelerated." But that is not entirely consistent with Wyatt's other testimony. His story was that the minivan moved 50 feet in five to ten seconds but was going 50 miles per hour when he shot. 

That combination of facts appears to be physically impossible. There are three pieces to this puzzle: the speed of the minivan at the time of the shot, the distance it traveled, and the time that elapsed. These pieces don't fit together. As plaintiffs argued to the district court, a vehicle that traveled 50 feet in ten seconds would have an average speed of only 3.4 miles per hour. If the time period is cut to five seconds, the average speed increases only to 6.8 miles per hour. Even accepting that the minivan would be gaining speed while accelerating, an average speed of 3 to 7 miles per hour appears inconsistent with Wyatt's testimony as to the speed of the vehicle and with the testimony of both Wyatt and Ellis that Gonzalez floored or stomped down on the gas.

In Gonzalez, the officers' testimony proved mathematically inconsistent, which substantially contributed to the reversal of the earlier decision. This inconsistency presented at least enough of a factual dispute to defeat the defendants' motion for summary judgment.

But how often will there be testimony in a lethal force case in which officers' statements paint a mathematically impossible portrait of the facts? I suspect that similar contradictions are absent from the testimony most cases involving lethal force as the Plaintiffs are unable to contradict the officers' statements.

Video, however, may change things. Admittedly, the Castile and Sterling cases are not perfect examples, as both cases involved separate witnesses who were shooting the videos. Had the witnesses not taken the videos, they still would be available to testify. But the videos and their wide publicity confirms the existence of these witnesses and moves them into the spotlight as public figures who now would almost certainly testify in depositions or any ensuing excessive force trial. And even in the absence of third party witnesses, the Plaintiff in a deadly force case may still take a video prior to his or her death, and video of the incident may be captured on officers' body cameras.

In addition to raising public awareness of excessive force incidents, video footage may lead to a change in the law of excessive force (or at least the practice of excessive force law). Video evidence may give judges pause before determining that there is no dispute of material facts. Indeed, video footage may prevent a case from ever reaching a summary judgment stage, as it may lead defendants to believe that a summary judgment motion may be futile.

It is too early to determine what the outcome would be any any criminal or civil cases that may arise from the Castile or Sterling incidents. But cases like these demonstrate that the future of excessive force litigation is likely to change as videos of alleged instances of excessive force become more common.