This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term
Comments
“…check out the lede of The Times article describing the officer “holding him in what appears, in a video, to be a chokehold.” (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see.”
Video can be a distorted insight into events. Perhaps it is excessively callous and tangential to make the comparison, but I was taken by the many different camera angles used in the recent World Cup. In soccer, a small clip or shove (delivered with all players in a full sprint) can easily destroy a players balance and result in arms flying and people falling. The foul is given and there is outrage… or not. But the point is that I witnessed multiple replays which told entirely different stories. From some perspectives, I could see absolutely no reason to award a foul. From other angles, the foul was stunningly obvious. Same event, different perspectives, leading to entirely different, unambiguous conclusions.
Posted by: Glenn S. | Jul 30, 2014 1:42:39 PM
Law enforcement officer training (1992) recognized and identified the inadvertent consequences of utilizing the “choke hold.” Primarily stimulus of the vagus nerve and positional asphyxia due to arrest. It is NOT the law enforcement training information, but the “attitude” of the Instuctor, Field Training Officer and Patrol Partner all being in compliance with departmental policy & procedure established by previous insured and carrier losses and professional discredit.
Posted by: Liam1306 | Jul 26, 2014 3:36:42 PM
At least one District Court has relied on Scott v. Harris to rule in favor of a 1983 plaintiff in a 1983 case. In Hulstedt v. Scottsdale, a neighbor recorded a police shooting. The district court ruled that the video demonstrated that the civilian did not present an immediate threat to the officers before being shot and that the officers had shot him without issuing a warning, as required in the 9th. More definitive than the chokehold case, to be sure, but an example of the Scott standard being used by courts to rule for plaintiffs.
Posted by: Schedlinski | Jul 23, 2014 12:37:53 PM
“On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. “
Assuming that the Civilian Complaint Review Board has no power, and that the NYPD brass are at best slow to discipline police officers (in other words, reality), would a claim against the city be pursuable under some doctrine of deliberate neglect/deliberate tolerance of such behavior?
Posted by: Barry | Jul 21, 2014 2:19:11 PM
Sorry ended up on wrong subject. My apologizes . Tried to post on weird al grammar video.
Posted by: Eric | Jul 20, 2014 3:27:47 PM
Here is a beautiful counterpoint video from Stephen Fry. Check it out.
Posted by: Eric | Jul 20, 2014 3:26:08 PM