The Importance of Video

It feels like we’ve had video cameras on cellphones for a long time. But in reality, the release of the Kyocera Visual Phone VP-210 in Japan in 1999 is reported to be the first time consumers gained access to them. Beyond personal use, it was clear early on that cameras on phones would play an important role in documenting public events. The execution of Iraqi dictator Saddam Hussein was recorded by a guard who was subsequently arrested, but not until the video had become widely available on the internet.

By the time camera phones were coming on line, the impact video could have on law enforcement was already apparent. In 1991 an amateur videographer, George Holliday, caught Los Angeles police beating Rodney King—during his arrest for driving under the influence, after leading the officers on a lengthy chase—on a video camera, the big bulky handheld kind. The footage showed officers beating King, who was unarmed and on the ground. Holliday originally offered the video to the police department but took it to local TV station KTLA when they didn’t show interest. State prosecutions ended in acquittals, resulting in riots that lasted almost a week, leading to the deaths of over 60 people and thousands of injuries. Two of the officers were convicted in a subsequent federal civil rights prosecution.

Although the results of the prosecution seemed inadequate in light of the serious injuries King suffered at the hands of police officers, it’s unlikely there would have been any prosecution without the video, or even any internal discipline. Video is evidence that can’t be ignored. And video, no longer the provenance of someone with a camcorder in the right place at the right time, as with Rodney King, is available on every street corner in American via cellphone.

Video has been a singular vehicle for forcing law enforcement to take crimes committed by their own seriously. While it has not been a straightforward path, and this week’s video of the brutal beating death of Tyre Nichols shows there are still miles to go, without video we would likely still be stuck in 1990s Los Angeles, where police felt like they could act with impunity, at no risk of being caught or called out.

Recognizing the importance of video, many police departments have adopted the use of body-worn cameras. According to DOJ statistics, by 2018, 47% of general-purpose law enforcement agencies and 80% of large police departments had acquired body-worn cameras. Though usage is imperfect, increasingly the absence of video during an incident where someone is injured or killed signals police misconduct or, at a minimum, the need to scrutinize the incident. By the same token, there is incentive for law enforcement to adopt the use of body cameras, as it can protect officers from false accusations and provide evidence of a suspect’s guilt that can be used in court.

The combination of civilian and police body camera video has opened up powerful new avenues for obtaining evidence in criminal cases. Ahmaud Arbery’s February 2020 murder in Georgia while out jogging was only prosecuted after video, taken by one of the three men responsible for his death, was leaked. Up until that time, none of them had been arrested and further proceeedings were unlikely.

George Floyd was murdered in Minneapolis on May 25, 2020, when police officer Derek Chauvin refused to remove his knee from Floyd’s neck. Darnella Frazier, a teenager at the time, recorded Floyd’s death, using her cellphone. When the case went to trial a year later, prosecutors told the jury, “Believe what you saw.” They did, convicting Chauvin, not just of manslaughter, but on murder charges too. Video matters.

It’s important in other contexts as well. For instance, the release of video showing House Speaker-emerita Nancy Pelosi’s husband Paul being attacked by a man who broke into their home with a hammer dispelled shameful rumors spread on social media and in the halls of Congress suggesting it had been something other than political violence fueled by the hateful rhetoric of the right. Prosecutors use video in cases every day—it can both confirm or refute guilt almost definitively. But nowhere is it more compelling than in police excessive force cases, where the imbalance of power has always favored law enforcement, most often taking the word of police over that of citizens. Video can equalize that balance of power.

There are some limitations. What’s portrayed in a video can be limited by the camera angle or by activity beyond the scope of the camera lens. But that’s a rationale for having more video, not for abandoning its use. It’s why it’s important for all officers to wear and use body cameras and for car cameras to be used as well. All of the video has to be analyzed before conclusions are reached, but it can reveal the truth. Video has the ability to galvanize action, and, if we use it properly, it should have the ability to animate change. It is already being used in some departments for training. That should be more widespread.

Its value doesn’t change the fact that video of police violence is painful to watch. The video of Tyre Nichols’s death is so excruciating that, as individuals, we must have the ability to forgo watching it. But as a community and especially among law enforcement, there is an unflinching obligation to watch. The video may lead to the conviction of individual officers, but it also serves as an indictment of police leadership, and not just in Memphis; of a toxic culture where outmoded attitudes that should have never been tolerated in the first place have festered for far too long. Departments where that is the case must commit to change, although citizens may have to push that process along.

Video has the ability to change things. And it’s a tool ordinary people can use. It can provoke a reckoning for law enforcement agencies.

It’s no longer unusual to see motorists pull over or pedestrians pull out phones when they see a possible confrontation developing between law enforcement and a person who has been stopped, especially when it’s a person of color. Police sometimes tell bystanders they may not use video; we’ve seen that in some of the videotape from excessive force cases. But there is a broad consensus among federal courts of appeal that have considered the issue that people have a First Amendment right here, although the Supreme Court has not weighed in (and is unlikely to, so long as the Circuits that have considered the issue remain in agreement—the Court typically would act only if there was a “split” in the Circuits).

Last year, the 10th Circuit, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, became the seventh (of 12) federal circuits to affirm the right to record, holding that the “right to film the police falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.” Because there is not unanimity, it’s wise to check state law before attempting to take video, but the right is widely recognized. Still, some places try to limit it. Arizona passed a 2022 law that makes it a crime, punishable by up to a month in jail, for people to record videos within eight feet of police activity, although it was promptly blocked by a federal judge. Many state ACLU organizations have state-specific information readily available on their websites.

The ACLU of Texas has a good explanation of the general right to videotape, with guidance on how to handle interactions with police. The key points include:

• You have the right to photograph anything in plain view if you’re lawfully present in a public space. On private property, it’s up to the owner.

• Police can’t delete your video/photos and, absent rare circumstances, can’t seize it without a search warrant.

• You cannot interfere with legitimate law enforcement activity or break any laws to obtain video.

Videotaping law enforcement won’t be for everyone, but it’s good to know your rights in an emergency. It’s important that police know they can be filmed by the public, too. It shouldn’t take a fear of being caught violating the law on video for police to act within the dictates of the law, but it is undeniably an important accountability measure. Video evidence is one element of a difficult effort to create 21st-century policing standards that protect communities and uphold the commitment to protect and serve. But as we’ve seen in so many cases, it can be a critical one.

We’re in this together,

Joyce