Why Use of Force Videos in Court Cases Don’t Tell the Whole Story

TASA ID: 321

As a former law enforcement officer, a security expert and an expert witness, I have seen countless videos of police using force on a suspect or perpetrator. In today’s world, the use of cameras by the police and by the public in taping an incident, while creating a picture of how the incident went down, do not always tell the entire story or even show the events as they actually happened. The assumption is that if a video shows a police officer using force on someone, it explains the entire scenario. That is not always true! The video can only capture an event and it does not take into account the human elements of fear and other specific details that must be considered. As attorneys, knowing how these human elements play into the use of force by the police in any given situation is imperative when trying a case that involves a use of force video of the police.

First, it’s important to understand the use of force continuum. The definition of the use of force continuum is “the right to use force is a right of an individual or authority to settle conflicts or prevent certain actions by using force to either: a dissuade another party from a particular course of action, or to physically intervene to stop them”. This is a standard that provides law enforcement officers and civilians with guidelines as to how much force may be used against a resisting subject in a given situation. The purpose of these levels of force is to clarify, both for law enforcement officers and civilians, the complex subject of use of force. One goal of the use of force continuum is a guideline to take control of a situation that threatens security by protecting the police officer and others in the immediate area from danger, as well as protecting the subject from himself or herself. Police officers are trained in the use of force and have discretion as to the usage of the levels when encountering a situation that needs force to get it under control. 

When using a video in a court case that shows a police officer using force in an effort to sway the jury, the judge or the public towards a conclusion, it is important to understand that what is being shown does not tell the whole story. It may show action by the police, but it doesn’t mean that what is being seen constitutes wrongful action by the police. 

When confronted by a threat, the focus becomes defending yourself. Police officers do this by relying on their training to take the appropriate actions. It is a huge mistake to judge the legitimacy of a use of force video simply from watching a video of the event in question. All evidence must be examined and evaluated, including what is not on the video, because human factors also come into play here. The perspective of the threat being faced cannot be captured on a video. Use of force case law understands these human factors and takes them into account. Case law requires the office to choose the appropriate level of force in response to the threat they are facing at the time. A police officer may choose a lawful and reasonable option but, on the video, it may not come across as justified. Or, a video can also prove the officer’s reactions to be wrong, contrary to their recollection.

There is case law relating to the use of force that govern police conduct. The most known is Miranda v. Arizona where a perpetrator has to be read his rights. However, there are circumstances in which Miranda does not apply. Stated plainly, Miranda really only applies to questioning when the subject is in custody. Non-custodial interviews do not require a Miranda warning.

The Supreme Court has ruled on numerous occasions on police use of force as it relates to the Fourth Amendment, but two cases stand out: 

Graham v. Connor. In this case the Supreme Court established what has become known as the “objectively reasonable standard” when it held that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” This case is important because it is not understood by the media or the public and it applies to their perception of what actually took place during the altercation. Again, a video of the altercation may not show the entire, factual picture of the events in question or the deciding factors of the police on the level of force used.

Tennessee v. Garner. In Garner, the court held that when a police officer is pursuing a fleeing suspect, s/he may not use deadly force to prevent escape “unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Officers who use deadly force on a fleeing felon must be able to articulate probable cause that the subject posed a significant threat of death or serious physical injury at the time of the use of force. This is important because it defines police responsibility when there is a video of a shooting and demands that the police be able to fully explain and justify why the shooting took place and that the officer involved be able to explain why they felt the perpetrator posed a threat.

When using videos in court that show use of force, it is important to remember that the video has no perception. It doesn’t tell the whole story and may not be accurate as it relates to the whole story. Forming a conclusion based solely on the video and not taking into account the best practices of the use of force continuum is a mistake. The video only captures who was there and the level of force that was used. It does not provide enough evidence to make an accurate determination as to whether the use of force level was justified. The camera may have missed events leading up to the altercation or the officer may have seen things happen that are not on the video, but that justify their reaction. For example, if an officer sees a weapon, even a toy weapon, and they feel threatened, they may have justification for using their chosen level of force. If an officer is injured or scared, this also affects their chosen level of force. Or, if the officer feels that there is aggression towards himself or the public, this also affects their use of force. These are examples that justify the use of force but may not be visible on the video. It is nearly impossible to know what degree of force is needed during a struggle unless you are involved. Even when a video shows an officer restraining a subject, the video alone does not accurately show if the officer used too much force in order to restrain the subject. 

If you are showing a video in court, remember that most people don’t know or understand the law. Most likely they don’t know the difference between an assault and battery, or between murder and manslaughter. They probably don’t understand the standard that makes up a self-defense, defense. In this day of amateur videos that make their way into the news, onto the internet and even into a courtroom, understanding the human factors behind the situation is vital. The use and the interpretation of a video in a court case can influence the outcome of the case. Taking the facts, the emotions and the whole picture into account when using use of force videos in court can go a very long way to making sure justice is accurately served.


TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author (TASA ID#: 321). Contact marketing@tasanet.com for any questions.


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