Using Technology To Defend Lawsuits Against Officers and Departments
As a municipal defense attorney specializing in police liability defense, I have seen firsthand the changing landscape of defending lawsuits where a police officer is alleged to have violated someone’s Fourth Amendment rights. No longer is it enough to simply write a detailed police report. Instead, lawsuits often turn on audio/video recordings of the subject incident(s). As you can imagine, this has had tremendous impact in civil litigation. Now, judges and juries expect to see video and/or hearing audio recordings. And, if there is none, they wonder what happened. Along these lines, one aspect that is often overlooked is detailing maintenance and repairs to equipment. This may seem a bit pedestrian but it can be as important as retaining the actual media files.
For instance, in one recent case, two officers from different departments responded to an event. The suspect brandished a weapon and the officers commanded him to drop it. Instead, the suspect lunged at one Officer 1; Officer 2 shot the suspect. Witnesses at the scene corroborated the officers’ version of the events. At the time, only Officer 1 was equipped with a body microphone. However, Officer 1 testified that the microphone malfunctioned and, as such, there was no audio of the incident; only a video of the parking lot from the dashboard camera.
Unlike many of the systems used today, the older system employed by Officer 1’s department was not a closed system and, instead, used SD cards that were assigned to each officer. Because Officer 1 and his department knew that the microphone malfunctioned, the recording was not saved in the department records. Complicating matters further, Officer 1 erred in copying the recordings from the SD card, then lost the SD card. Again, the department’s position was that there was no need to save the recording because there was no actual evidence from the incident; only a video of the parking lot away from the incident.
Remember, there was no dispute that it was Officer 2 who shot the suspect, not Officer 1. Despite the existence of four witnesses that corroborated the officers’ version of events, the Court ruled that there remained factual issues for a jury regarding what exactly happened before Officer 2 fired his weapon. The Court based this ruling on a related ruling that, because it was disputed whether or not Officer 1 had an audio recording of the subject incident, there remained factual questions regarding whether Officer 2 acted reasonably. That’s right. Officer 1’s inability to prove that his lapel microphone did not record the audio of the incident directly caused the claims against Officer 2 to proceed to trial. (The claims against Officer 1 also proceeded to trial because those claims were based on the theory that he failed to intervene in Officer 2’s allegedly unreasonable use of deadly force.)
The lesson learned is to document everything, no matter how innocuous it may seem. For instance, if recording equipment fails, document the failure and document the measures taken to fix it, including saving work orders and receipts.