Having a police-involved shooting caught on video does not automatically make a solid legal case against excessive use of force, say lawyers who study such incidents, including a shooting on Sunday in Los Angeles. Videos of police shooting 12-year-old Tamir Rice in Cleveland and the fatal chokehold of Eric Garner on Staten Island didn’t lead to indictments against the officers in those cases last year. And while there was video of the August shooting death of Michael Brown in Ferguson, Missouri, the footage wasn’t reliable enough to support charges against Officer Darren Wilson.
Another police-involved shooting was captured on video Sunday after officers fired several shots at a homeless man in Los Angeles' Skid Row. The Los Angeles Police Department claimed the man was shot after he reached for an officer’s gun. The footage went viral on Facebook, but lawyers who handle police brutality and civil rights cases said the video is problematic for a number of reasons.
The roughly 4-minute video begins with the homeless man throwing punches while several LAPD officers surround him. The man is then seen on the ground as the officers try to subdue him. At least one officer punches the man, which is followed by the sounds of a Taser. An officer is then heard telling the man to “drop the gun” before five shots are heard. The scene isn’t clear because it’s in the background of the shot. In the foreground, a person is seen being arrested after picking up an officer’s nightstick.
Howard Friedman, a Boston civil rights and police misconduct lawyer, said the vantage point of the video makes the circumstances of the incident unclear. “It’s so far away you can’t really see," Friedman said. "You can see they’re struggling. You hear somebody say, ‘Drop the gun, drop the gun,’ but you can’t really tell what happened.”
Viewing angle problems also complicated the case against Wilson. While shots can be heard in the Ferguson shooting video, the actual altercation isn't seen.
Michael Haddad, a civil rights lawyer in Oakland, California, said the LAPD shooting video shows that the officers "right away start using a high level of force." But the video neither confirms nor disputes the police account that the man got hold of an officer's gun. "It doesn't look like they needed to shoot him, but the problem is from the view of the officer [who shoots], another large officer steps in the camera the moment right before it," he said. "We don't get the whole picture, but the part of this video that's important is what the police did at the moment when he decided to shoot. So while the video on the first few looks may appear unclear what exactly the person on the ground was doing, one thing that is clear is that in the previous 30 seconds the police are whaling at him with batons and fists and whatever they can hit him with. My question is: Was that forced justified?"
Ultimately, that decision most likely will be up to a prosecutor since California has a history of district attorneys bringing charges against law enforcement in such cases instead of going through a grand jury, which is what unfolded in Staten Island and Ferguson, Haddad said. While it's rare for prosecutors to bring charges against police in California, a case is more likely when there is video evidence. "Their hands are tied and it also gives them some cover from the public when everyone can see with their own eyes that the shooting looked unjustifiable," he said.
Across the nation, officers are rarely indicted, let alone convicted, in police brutality cases. For the most part, the public is trusting of police, and juries view their testimony as credible and are sympathetic to officers who have to make split-second decisions to use lethal force. If a grand jury hears evidence in the incident, they might not view the video under the same circumstances as the public, according to Derek Sells, a New York City civil rights attorney who represented the family of Patrick Dorismond, who was shot and killed by an undercover NYPD officer in 2000.
How the new Los Angeles video is presented to a grand jury can make jurors interpret it differently from observers who have watched the footage since Sunday. Additionally, the officer who fired the shots will get to testify, while the homeless victim can’t. The Garner case elicited outrage in part because the video of the Staten Island man’s death and confrontation with police was clearly shown. But Sells said the grand jury didn’t see the video in the same way the public did.
“Invariably, when decisions are made by grand jurors based upon videotaped evidence, they just don’t look at it once. They look at it frame by frame, and that’s how it’s shown,” Sells said. “The video gets broken down basically into still frames, so you’re not just watching one complete series of events.” Also, the Los Angeles officer who shot the man “can shape his testimony to what the video shows,” he said.
While the video of the police shooting of Tamir Rice was grainy, the 12-year-old Cleveland boy’s family said it “distinctly” showed that “police officers reacted quickly,” according to a statement from the family shortly after the November shooting. But what makes Tamir’s case different from that of Garner and Brown is that he was armed with a toy gun that appeared real enough that witnesses called 911. No charges were filed in the case, and outrage in the incident was fueled further on Sunday when the city of Cleveland said Tamir, not the officer who shot him, caused his death. Protesters accused Cleveland police of not showing restraint when they responded to the 911 call.
Bob Bennett, a Minneapolis lawyer who handles police misconduct cases, said the LAPD shooting video is “certainly relevant evidence,” but it’s not enough to support potential charges. “You need a couple of more forensic pieces, probably,” he said, including if there was DNA from the homeless man on the officer’s gun. But the video also isn't sufficient to bolster the LAPD's claims that the man reached for a gun.“The video doesn’t answer the question about whether he grabbed or secured an officer’s weapon, so it’s not great evidence for that," he said.