Charging media for using police-shooting video may be the price of equal justice

The lawyers for Feidin Santana, who recorded video of a police officer fatally shooting Walter Scott, are hard at work. They have started requiring the media to pay Santana for each time they use the video, citing copyright law.

Some observers may grimace at the idea of a person “cashing in” on one of the gruesome features of our nation: the killing of an unarmed black person by an agent of the state. But before we deplore Santana’s actions and question his motives, let us step into his shoes.

The witnesses to police violence and misconduct often find themselves in a perilous situation with major legal and practical risks and few benefits.

Instead of reflexively deriding Santana’s actions, we should question all the ways our system makes witnesses insecure in their own freedom and undermines their ability to come forward.

Are bystanders with cameras really in control?

It might seem that bystanders with cell phones are empowered.

Technology – especially cell phones and social media – expands the breadth of citizen oversight. Technology has the potential to provide a crucial mechanism of accountability amid high rates of police/citizen contact.

Over the decades, a large share of citizen complaints to civilian review boards have never been explored, sustained or punished. Internal affairs divisions are often extensions of the police forces they are supposed to hold accountable. Many victims of police misconduct have neither the funds nor the “deserving” profile that civil litigators would deem worthy of representing.

With a nation of possible witnesses with cellphones, a new avenue for justice and police accountability has opened up. However, there are three obstacles that stand in the way of this possibility.

Filming police officers can be risky business

First, filming law enforcement officers is not without considerable risk. Choosing to remain in the vicinity of violence, and being seen by armed police with an incentive to prevent the filming or destroy the evidence, requires a tremendous amount of courage.

In an interview with MSNBC, Santana reported, “I felt that my life, with this information, might be in danger. I thought about erasing the video and just getting out of the community … and living some place else.”

Witnesses need to feel confident that their right to record the police is protected, both in law and in practice. Sometimes police simply confiscate the recording regardless of the law. For example, earlier this month a cop confiscated the video of a witness who was filming as a man was mauled by a police dog while in police custody. The man, Philip White, later died of his injuries.

In communities where police legitimacy is in low reserve, many people often try to keep a wide berth from the law. In fact, some states tip the scales in favor of protecting police. A bill being considered in Texas would require witnesses to keep from 25 to 100 feet away from police encounters with residents.

Meanwhile, in Chicago, a young woman who used her Blackberry to record encounters with police was charged with a Class 1 felony under a law there that restricted people from recording police without their knowledge. She was later acquitted, but even the possibility of prosecution remains a significant deterrent for potential witnesses.

Second, bystanders may face legal action for unrelated matters if they witness police violence and decide to come forward. They are making themselves visible to police in ways that undermine their own security from police attention. It is not unusual for police to make suspects out of witnesses or people who submit complaints. Alice Goffman’s book, On the Run, details how some police, when they need evidence, may pressure bystanders or even spouses to turn into informants.

Screen captures of the 1991 video of Los Angeles police and Rodney King.Frames from original home video., CC BY-SA

Here’s another example. When a brother of Rodney King (whose 1991 beating by Los Angeles police after a high-speed car chase was filmed by a bystander) decided to file a complaint about his brother’s treatment, the first thing the desk officer did was to look up the brother’s name in the system to check for outstanding warrants. This is detailed in the book Weaver co-authored with Amy Lerman, Arresting Citizenship.

A month after Ramsey Orta filmed Eric Garner’s killing, he was indicted for possession of a gun without a permit and went to jail for months before his bail money could be crowdsourced. Many people have some reason for which they could be deemed a non-law-abiding citizen – speeding, marijuana possession, a broken tail-light, some unpaid tickets – and for people without access to advocates and money for legal help, recording and reporting evidence raises the specter of legal entanglement.

The personal cost of witnessing police misconduct

Finally, the personal cost of witnessing and documenting police abuse is sometimes immense and the payoff uncertain.

Often, complaints against police go unheeded, as documented in Arresting Citizenship. In most jurisdictions, police misconduct rarely secures outcomes that punish or remove the officer; efforts to prohibit or prosecute brutal force practices like chokeholds have not been successful (see Lyons vs. LAPD).

In other words, civilians who record law enforcers may rationally believe their actions will be futile. And even when their evidence does affect the case, there are new costs to be borne.

In a high-profile case like Walter Scott’s, a witness can reasonably expect to give up normal life for the duration of the media attention and ongoing trial. In addition to threats from around the country and the fear of police surveillance, any semblance of day-to-day routine is forfeited.

So why wouldn’t Feidin Santana want some compensation for the risks he has taken? Right now the costs are severe, the legal protections sparse or under attack, and often the only incentive to record police brutality is concern for the victim and an abstract commitment to justice, truth and accountability.

At the same time, however, such “cell phone witnessing” is vital to American justice because police officer cameras are liable to be turned off or “broken” before misbehavior, and they inevitably produce evidence from one perspective only: that of the police.

Legal protections for witnesses are needed

To take advantage of this citizen-empowering and democracy-enhancing technology, we need strong protections in place: clearly stated and publicized affirmations of the right to film police; guaranteed and ongoing legal support for witnesses; and witness protection to ensure that witnesses feel safe from retaliation or targeting.

Against great odds, Feidin Santana decided to try to hold police officers accountable for their actions. Many others would have been too daunted by the risks to record the killing and come forward. The commitment to justice would have been too costly, and fear would understandably have overridden any abstract idealism.

In the absence of these state-provided safeguards, Santana must now rely on media attention, public support and copyright law for safety and support. Until mechanisms are created to protect people like him, he should be considered entitled to seek the compensation that he may well need in the months to come.

Vesla Weaver receives funding from the Russell Sage Foundation.

Briallen Hopper does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.