Andrew Rosado Shaw

From: Andrew Rosado Shaw, Our Duty in Light of the Law's Irrelevance: Police Brutality and Civilian Recordings, 20 Georgetown Journal on Poverty Law and Policy 161 (Fall, 2012) (232 Footnotes Omitted) (Student Note)

In the 1960s, the Black Panther Party for Self-Defense sent armed and uniformed citizen patrols through the ghettos of Oakland, California. These brazen young men, belts of bullets across their chests and shotguns in hand, marched to end the brutal abuse of the poor and minorities by the Oakland police. The same call to action was heard across the nation. Civil rights activists protested police brutality throughout the United States, demanding an end to hundreds of years of police culture that had willfully ignored, and even encouraged, widespread abuse.

Despite these protests, police violence persists. Decades later, in August of 1997, Haitian immigrant Abner Louima was brutally beaten and sodomized in the restroom of a Brooklyn police station by officers of the NYPD. He was hospitalized with numerous injuries, including a punctured bladder and severed colon. Shortly afterward, the perpetrating officer paraded through the station with the blood- and feces-stained instrument of his abuse, bragging of how he “took a man down tonight.” In blatant disregard for these inhuman acts, fellow officers not only failed to report the incident for weeks afterward, but only eventually did so under the pressure of a highly publicized investigation.

Fortunately, a new weapon has emerged--over 280 million U.S. citizens now carry cell phones. Most of these mobile phones are capable of producing video at a moment's notice --video that has proven invaluable in prosecuting police misconduct. The report of the Independent Commission of the Los Angeles Police Department investigating the vicious beating of Rodney King in 1991 explicitly acknowledged, “Even if there had been an investigation, our case-by-case review of the handling of over 700 complaints indicates that without the Holliday videotape the complaint might have been adjudged to be ‘not sustained,’ because the officers' version conflicted with the account by King and his two passengers.” The officers' conflicting account was, of course, a lie. The disturbing truth is that falsification is perhaps the most common form of police corruption, and the link between perjury and misconduct may be inevitable.

The willingness of some police officers to completely disregard the law does not end with falsified reports. Even as courts recognize that video surveillance of on-duty officers is “unambiguously” protected by “basic first amendment principles,” police have continued blatant attempts to prevent, suppress, or destroy video evidence. Because officers who disregard the law have already evinced their willingness to engage in the most savage brutality, it should come as no surprise that those officers are willing to engage in violence to prevent citizens from recording police brutality.

This Note hopes to reframe the conversation regarding the recording of police misconduct from its traditional focus on courtroom battles to the reality of the situation on the ground. It will first detail the history and development of police brutality in the United States, including traditional citizen oversight and the more radical responses prompted by pervasive abuse. It will then examine the effect of recent technological developments on prosecution, the settling of current law regulating civilian recordings in favor of First Amendment rights, and the utter disregard of these laws displayed by some police officers. Finally, it will look to social science to identify and understand the clear disparity between the law on the books and the law as applied. Oppression of those who use video cameras to challenge the prevailing power structure is rampant. We must view surveillance as a necessary exercise in civil disobedience and be prepared to endure its consequences; moreover, we must encourage and enable others to join the fight.