Vol. 104 Issue 6

In August 2014, Michael Brown, an unarmed African-American teenager, was killed by a white police officer. The young man’s body lay for hours at mid-day on a residential street, with multiple gun shot wounds to his head, chest, and arm. In the months that followed, police choked Eric Garner to death on a sidewalk in Staten Island, gunned down Tamir Rice on a playground in Ohio, shot Walter Scott in the back, and arrested Sandra Bland, effectively for a minor traffic violation. Bland died in custody shortly after. Then, in a vicious in-school arrest weeks later, a white police officer known in the school as “Officer Slam” threw a young African-American girl to the ground, flipped her body over, and dragged her across the floor in front of her stunned classmates.

This Article offers a theoretical model that explains the persistence of what I will call “blue-on-black violence.” Six features comprise the model. First, a variety of social forces converge to make African- Americans vulnerable to ongoing police surveillance and contact. Second, the frequency of this surveillance and contact exposes African-Americans to the possibility of police violence. Third, police culture and training encourage that violence (mostly implicitly). Fourth, when violence occurs, a range of legal actors in the civil and criminal process translate that violence into justifiable force. Fifth, the doctrine of qualified immunity makes it difficult for plaintiffs to win cases against police officers, and when plaintiffs win such cases, police officers rarely suffer financial consequences because their local government indemnifies them. Sixth, the conversion of violence into justifiable force, the qualified immunity barrier to suing police officers, and the frequency with which cities and municipalities indemnify police officers reduce the risk of legal sanction police officers assume when they employ excessive force. This reduction in the risk of legal liability diminishes the incentive for police officers to exercise care with respect to when and how they deploy violent force. Although the foregoing factors are not exhaustive of the causes of police violence against African-Americans, they suggest that the problem is structural and transcends the conduct of particular officers engaging in particular acts of violence against particular African- Americans.

This symposium Article articulates and defends a robust First Amendment right to record the police up to the point that the act of filming presents a concrete, physical impediment to a police officer or public safety. To the extent that courts have identified the constitutional values behind the right to record, they have, for the most part, relied on the idea that filming the police promotes public discourse by facilitating the free discussion of governmental affairs. Like limiting the gathering of news, limiting the filming of the police constricts the information in the public sphere from which the public can draw and debate. I contend that this account of the constitutional values behind the right to record is correct but incomplete, for it sets aside the ways in which the act of recording an officer in the open is a form of expression in the moment, a gesture of resistance to the power of the police over the community. In order to flesh out this function of civilian recording as resistance, this Article contrasts civilian filming of the police with the use of police-worn body cameras: while both forms of film are useful to deter misconduct and document police activity, only civilian filming allows civilians to express ownership over their streets and neighborhoods. Ultimately, I argue that a jurisprudence of the right to record should account for both the benefits to public discourse and the in-the-moment communication to officers that can be found when civilians record the police.

Ferguson has come to symbolize a widespread sense that there is a crisis in American criminal justice. This Article describes various articulations of what the problems are and poses the question of whether law is capable of fixing these problems. I consider the question theoretically by looking at claims that critical race theorists have made about law and race. Using Supreme Court cases as examples, I demonstrate how some of the “problems” described in the U.S. Justice Department’s Ferguson report, like police violence and widespread arrests of African-Americans for petty offenses, are not only legal, but integral features of policing and punishment in the United States. They are how the system is supposed to work. The conservatives on the Court are aware, and intend, that the expansive powers they grant the police will be exercised primarily against African-American men. I then consider the question of reform using empirical analysis of one of the most popular legal remedies: “pattern or practice” investigations by the U.S. Department of Justice. Some reforms are stopgap measures that provide limited help but fail to bring about the transformation demanded by the strongest articulations of the crisis. In fact, in some ways, reform efforts impede transformation. I conclude by imagining the wholesale transformation necessary to fix the kinds of problems articulated by the Movement for Black Lives.

Public clamor over police–community relations began in the mid-1990s and has now started to reach fever pitch. It is unlikely to subside soon for a number of reasons. The minority community is concerned about the large number of its youth who end up in the criminal justice system, often for minor offenses such as possession of small amounts of marijuana, driving with a burned-out taillight, or jaywalking. Their encounters with police can turn deadly, especially when the officer is white and concerned more with asserting authority than de-escalating conflict. When a police–citizen interaction turns violent, bystanders often record it and post the video on the Internet. The combination of a large and vocal minority community, an intractable police force, and a system of social media that widely broadcasts encounters ensures that the current turmoil is apt to continue, if not worsen, in the immediate future.

As police departments nationwide operate under increasing public scrutiny following numerous high-profile instances of excessive and often lethal force against unarmed African-Americans and Latinos, calls for greater accountability have been nearly unanimous in supporting the use of Body-Worn Cameras (BWCs) by police officers. On September 21, 2015, the Department of Justice announced awards totaling over $23 million to local police departments for the purpose of implementing BWC programs. Announcing the project, Attorney General Loretta Lynch emphasized the hope that BWCs would “enhance transparency, accountability, and credibility” among beleaguered police departments nationwide. But, in addition to recording the activities of the police, BWCs also record the conduct and statements of criminal defendants, victims, and witnesses of crimes. BWC footage has been widely discussed for its potential to hold police accountable for their actions, but it has not yet been subject to scholarly examination for its potential use as evidence in criminal proceedings. This Note fills that gap, focusing on the conflict between the government’s interest in maintaining exclusive control over BWC footage and the defendant’s entitlement to pretrial discovery under Rule 16 of the Federal Rules of Criminal Procedure and the Due Process Clause of the Fifth and Fourteenth Amendments. Although witness safety concerns may justify some limitations on defendants’ access to body-cam footage in exceptional cases, this Note argues that the discovery rules governing analogous pre-existing technologies militate in favor of broad pretrial disclosure of BWC footage.