Mary D. Fan, Hacking Qualified Immunity: Camera Power and Civil Rights Settlements, 8 Ala. C.R. & C.L. L. Rev. 51 (2017), https://digitalcommons.law.uw.edu/faculty-articles/58
Alabama Civil Rights & Civil Liberties Law Review
excessive force, police and policing
Excessive force cases are intensely fact-specific. Did the suspect resist, necessitating the use offorce? What threat did the suspect pose, if any? Was the use of force excessive in light of the situation? These are judgment calls based on myriad facts that differ from case to case. Establishing what really happened forces courts and juries to wade into a fact-bound morass filled with fiercely conflicting defendant-said, police-said battles.
Now an evidentiary transformation is underway. We are in an era where the probability of a police encounter being recorded has never been higher. With the rise of recording—by the public as well as the police trials of complaints against the police are more likely to occur outside the courtroom, in the arena of public perception.
This article is about the power and perils of cameras in deciding civil rights claims against the police and exacting settlements. Many hope that cameras will offer more objective evidence to resolve fierce factual conflicts and reveal the truth of what happened This contribution explores the volatile power of video evidence to vie for subjective audience perceptions - and potentially short-circuit the qualified immunity hurdle to induce settlements.