This summer, Charlotte will receive national attention when a jury decides whether CMPD Officer Randall Kerrick committed manslaughter when he shot and killed Jonathan Ferrell in the middle of the night. Dashboard video will likely be key evidence in the trial.
But I learned a few years ago from representing a police officer accused of excessive force that video cameras do not always tell the whole truth.
Police dashboard cameras have two problems: One, they don’t record what the officer or any other witness sees; and two, they record only one of the five human senses – sight. (Sometimes they pick up sound, but less often than you think.)
The Supreme Court has established a legal standard for excessive force that requires the prosecution to prove the officer used more force than a reasonable police officer in that dynamic moment and in the officer’s exact shoes would feel was necessary.
Thus, when we see a video, we think it’s simple but it’s not.
In my case, my client, a patrolman in a medium-sized town, was “caught on tape” from patrol car dashboard cameras in two separate instances – once punching a suspect while trying to handcuff him, and another time body-slamming a suspect from a traffic stop whom my client felt was resisting a body-frisk.
We had a four-day trial in federal criminal court. Here’s what the cameras didn’t show:
The first suspect jumped and ran, and no fewer than six policemen chased him on foot and by car for 10 minutes. The police who grappled with him could feel how strong he was. They could hear how angry he was. They could feel the suspect’s sweat on the hot summer day, and they couldn’t get a grip on his slippery arms as he tried to avoid being handcuffed. Do you believe in the smell of fear? These policemen did and were concerned the suspect was so scared and hyped that he could hurt them. My client hit him with a right hook – one helluva right hook – as they tried to handcuff him on the hood of the patrol car. The silent video taken from its still, sterile perch on the dashboard was alarming but conveyed little of what the police felt, smelled, heard or sensed that day.
In the body-slam incident, I was able to synch up the dispatcher’s audio recording to the dashboard video, and discovered that the dispatcher was telling my client that a car bearing the license plate that my client radioed in had been involved in a robbery a day or two earlier. My client testified that during the frisk, the suspect stiffened up and bowed back up against my client as his search got to the waistband. My client made the split-second decision that the suspect might have a gun, and body-slammed him to subdue him.
The jury acquitted the officer.
Television news loves alarming video. But as we enter into several years of criminal prosecutions alleging excessive force by officers, we all need to remember three things. First, the Supreme Court has set a high standard of proof that recognizes the inherent dangers that police navigate on the job. Second, dashboard cameras and bystander video do not give the key perspective – the policeman’s view. (Lapel cameras will help in this regard.) And third, a visual representation of the events can’t record the whole story. Human interactions are based on a lot more than sight, and police officers use that full range of human perception to determine when they need to use increased force to protect themselves and the public from an agitated suspect. We evolved, after all, with five senses, not just one.
Fialko is a defense attorney with Rudolf Widenhouse & Fialko in Charlotte.