Video Recordings And Crime

Commercial Video and Crime

Someone shot and killed three people, seemingly at random, in a Walmart in Thornton, Colorado yesterday evening.

Because the store and its parking lot are covered with cameras, primarily intended to catch shoplifters, we can say with great confidence that the man arrested, a 47 year old man by the name of Scott Ostrem, is very likely the man who committed the shooting, even though this is one of the very rare cases where a multiple homicide shooter did not die in the act and was not captured at the scene of the crime.

His actions from the time he entered the store, to the shooting in the store, to his departure from the store in his vehicle, were all caught on camera, and the quality of security video has increased greatly from the days when it was introduced.

Whether or not Ostrem is guilty of a homicide crime, and which homicide crime he is guilty of, may depend upon a potential insanity defense and questions of the nature of his intent. But, there will be no reasonable basis upon which to doubt that he was the shooter whose firearm killed the three victims.

Dash Cam Video And Law Enforcement Liability

Video recordings are also significantly increasing the extent to which law enforcement officers are prosecuted and sued for crimes, even when they lie about the facts. For example, as the official synopsis of an opinion in the United States Court of Appeals for the 9th Circuit yesterday explained:

The panel held that in this case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. Although Higgins testified that Zion was trying to get up, the panel determined that in light of the video footage to the contrary, the issue of whether Zion attempted to flee or attack involved a dispute of fact that had to be resolved by a jury.

The relevant portion of the opinion itself says (legal citations omitted, emphasis added):

Plaintiff doesn’t challenge Higgins’s initial nine-round volley, but does challenge the second volley (fired at close range while Zion was lying on the ground) and the head stomping. By the time of the second volley, Higgins had shot at Zion nine times at relatively close range and Zion had dropped to the ground. In the video, Zion appears to have been wounded and is making no threatening gestures. Lopez Video 3:04. While Higgins couldn’t be sure that Zion wasn’t bluffing or only temporarily subdued, Zion was lying on the ground and so was not in a position where he could easily harm anyone or flee. A reasonable jury could find that Zion was no longer an immediate threat, and that Higgins should have held his fire unless and until Zion showed signs of danger or flight. Or, a jury could find that the second round of bullets was justified, but not the head-stomping. 

Defendants argue that Higgins’s continued use of deadly force was reasonable because Zion was still moving. They quote Plumhoff v. Rickard: “[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” But terminating a threat doesn’t necessarily mean terminating the suspect. If the suspect is on the ground and appears wounded, he may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting. This is particularly true when the suspect wields a knife rather than a firearm.2 In our case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. 

Higgins testified that Zion was trying to get up. But we “may not simply accept what may be a self-serving account by the police officer.” This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. Lopez Video 3:01. This is a dispute of fact that must be resolved by a jury.

[2] It may be that, once on the ground, Zion had dropped the knife. Whether the knife was still in Zion’s hand or within his reach, and whether Higgins thought Zion was still armed, are factual questions that only a jury can resolve.

In the days before video of these incidents was frequently available, this excessive force lawsuit would very likely have been dismissed on the strength of the law enforcement officer's sworn lie in videotapes that the trial court had apparently sealed.

Even with video, the trial court judge granted summary judgment in favor of the police officer in the face of video evidence flatly contradicting the officer's testimony:

What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers.1 Zion is seen running toward the apartment complex. Lopez Video 2:58. Higgins shoots at him from about fifteen feet away. Higgins Video 3:25. Nine shots are heard and Zion falls to the ground. Lopez Video 2:54. Higgins then runs to where Zion has fallen and fires nine more rounds at Zion’s body from a distance of about four feet, emptying his weapon. Id. at 3:00–03. Zion curls up on his side. Id. Higgins pauses and walks in a circle. Id. at 3:05. Zion is still moving. Id. at 3:00–12. Higgins then takes a running start and stomps on Zion’s head three times. Id. at 3:11–20. 

Zion died at the scene. His mother brought suit under 42 U.S.C. § 1983, claiming Higgins used excessive force. She also claims Higgins deprived her of her child without due process. She raised a separate substantive due process claim on Zion’s behalf, municipal liability claims and various state law claims. The district court granted summary judgment to defendants on all claims.

[1] The videos can be viewed at https://www.ca9.uscourts.gov/media/ 15-56705/evidence/Lopez (Lopez Video) and https://www.ca9.uscourts. gov/media/15-56705/evidence/Higgins (Higgins Video).

The appellate opinion also ordered that: "The videos—Exhibits A and B—shall be unsealed."

The simple truth is that the trial judge in this case (Central District of California District Judge James V. Selna) to whom the case has been remanded, a George W. Bush appointee, has no business serving as a judge in this case after ignoring the fact that two video recordings flatly contradicted the police officer's testimony and nonetheless finding his testimony to be credible. This dishonest and reprehensible conduct by judges in cases involving police officers, is, unfortunately, all too common.