Video and Use of Force

Across the nation police agencies are looking at police video.  Mostly driven by headline cases such as the Garner case in New York City, the Rice shooting in Cleveland and especially the Michael Brown shooting in Ferguson, Missouri; police administrators are looking to appease vocal members of their community.  Transparency is the catchword of the day as is accountability.  The problem is that uneducated observations of use of force incidents frequently lead to rush to judgment, inaccurate determinations, condemnations of officers and calls for prosecutions, before all the facts are known.

Sadly too few police administrators know use of non-deadly or deadly force law, or their own policy for that matter.  Too few bosses are willing to take the political heat and endanger their career rather than do the right thing and back their officers.  Too few police command staff attend training programs to actually learn what their officers are trained to do.  And too few chiefs are willing to admit they don’t know or ask true experts about the video images they see.

The agitators or community organizers don’t want to know what the law is, the human factors involved or the practical aspects of attempting to control a violent suspect.  This would interfere with their agenda. 

Today’s media is less inclined to actually investigate and find the whole picture but rather edit the tape down to the most violent moments and loop the video, showing the images over and over as the news anchor or field reporter talks about alleged excessive force or facts unknown at the moment force was used, “It was only a BB gun…”

Caught in the middle is the officer trying to document and explain his actions after experiencing a Sympathetic Nervous System reaction and the inherent perceptual and memory distortions which go along with a violent encounter.

How Video is Misused

Over the last few years I have worked on multiple cases as an expert witness where officer actions were captured on tape.  Several officers were criminally charged in uses of force which were within the law.  Others were disciplined for policy violations.  As example:

• Off-duty detective working a security job who was indicted by a Grand Jury based on a video tape which didn’t even show the actual shooting
• Officer fired for use of force captured on tape which was within complete compliance with policy.  The reason given was that the officer appeared angry and that his use of force caused more resistance not less
• Deputy charged and tried for misdemeanor assault charge in use of force when he controlled four suspects with kicks to their legs after they refused to get out of their car.  The deputy had been injured when the suspect vehicle, fleeing a large fight call, collided with his patrol vehicle at 35mph
• Multiple videos of county personnel being charged with felony assaults after use of force incidents with aggressive inmates or prisoners in booking or other areas of county jails based on videos which appear to “not look good”
• Officer fired after using a Taser on a female who refused multiple verbal attempts at control and then pulled away twice after being placed under arrest
• Two officers charged in the shooting of a subject armed with two knives who failed to comply with police requests to disarm over more than two hours and raised his arm/knife when officers attempt less-lethal control
• Sheriff’s personnel accused of lying by investigators when their memory was in conflict with the video (which they were never allowed to review)
• A police officer charged with felonious assault by a detective lieutenant, untrained in use of force investigations, based on a video.  The investigator, citing the video as evidence, stated that the officer had never really felt threatened or he would have handcuffed the subject

The Truth of Video

• Is only one part of the story
• Does not represent the entire event or totality of the circumstances (only what images the camera captured and recorded)
• Represents a two dimensional image
• Records in frames per second (average 30 frames per second).  These “pictures” chained together to form a video contain lapses between each which may not accurately record fast or subtle movements
• Distances between subjects may not be accurately interpreted
• Only records the visual images the camera lens is aimed toward
• May record better than the human eye in low or subdued lighting

But with a society raised on TV, we think we know more than we actually do.  After all, “Can’t you see?  It’s right there on camera.”  How can that use of force be good?

As an example, we had multiple media personnel improperly say that Eric Garner was “choked to death.”  This is easily proven untrue by watching the video.  Mr. Garner was clearly breathing and talking after the officer’s arm was removed from around his neck area. 

The Problems with Video

• Must be interpreted correctly
• Use of force is to be judged from the perspective of a reasonable officer on the scene, knowing what the officer knew
• Force is based on the officer’s reasonable perceptions.  Not what the camera saw
• Depends on an educated person (police use of force law, human factors, body language, threat assessment and dissection) to interpret
• If not dissected in frames per second with time stamps may lead to inaccurate interpretations of reaction, response and movement times
• Dissection (breaking down the video to individual frames is time consuming and not easily accomplished)
• Opens up the incident to tremendous second-guessing and hindsight since the outcome is known (it was a toy gun)
• Do not engage in “segmentation” or “the decision point approach” by breaking up the video looking for where the officer could have or should have done something different.  The correct legal interpretation is “at the moment the trigger was pulled or the force was used”
• Written reports are oftentimes compared to the video and allegations of lying made

Police trainers are guilty of second-guessing officer’s use of force based on video.  If the officer would have done this – used more force, less force, better tactics, less-lethal, more distance, more dialog, better crisis intervention skills – then the shooting or use of force would not have been necessary.  Ignoring the fact that the correct question is whether the officer’s use of force was objectively reasonable at the moment force was used based on the officer’s reasonable perceptions and the totality of the circumstances. 

Officers and Cameras

Truth is that police officers don’t much care about body worn cameras.  They do worry about how an uneducated or ignorant assessment of their actions.  This is frequently the result when the officer is not allowed to review the tape prior to writing their report.  The human memory does not record like a video.  An officer can only remember what they were focused in on and based on perceptual distortions which can occur in stressful situations.  The phenomenon of “inattentional blindness” as documented by Chabris and Simons in “the invisible gorilla” videos and book clearly indicate how focus of attention and memory can be affected.

Recommendations

• Train command staff and supervisors in the legal aspects of use of force
• Insist that ALL agency personnel attend legal and practical use of force training
• Train command staff and supervisors in use of force investigations
• Train officers in the latest legal, practical and human factors research on use of force and violent encounters
• Train officers how to properly document use of force incidents
• Allow officers to review the videos before any reports are written
• Separate investigations into three parts: (legal) whether the use of force was within the law; (internal) whether the use of force was within agency policy; and (tactical) learning points or areas of retraining for the officer or agency
• Do not comingle the investigations.  Even if the officer made tactical errors, it does not mean that the use of force was bad
• Utilize agency experts.  Don’t assume, by a cursory glance, that the use of force was excessive (more than the law allowed) or “officer created jeopardy”

There is value in video but it takes a trained eye and mind to properly interpret.  Empty-hands, pepper spray, Tasers, batons and firearms are instruments of force and sometimes their application, though perfectly legal, doesn’t look good to the untrained eye.  We expect officers to be professionals on tape, late night on Saturday evening, in a back alley.  Let’s be professional when reviewing these tapes on Monday morning in our offices.