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Abstract

Conflicting results in two recent police excessive force decisions by the U.S. Supreme Court—Tolan v. Cotton and Plumhoff v. Rickard—have sown confusion about the standards for summary judgment. This Note shows how the two decisions are consistent with each other and with longstanding summary judgment precedents. The key insight is that since the Second Circuit’s iconic 1946 decision in Arnstein v. Porter, appellate judges, including Supreme Court Justices, have listened to audio recordings, scrutinized artwork, and—as in the case of Plumhoff—watched video footage in order to decide for themselves whether there is a genuine issue of material fact for trial. These “objective” components of the record are considered vitally important to the decisions. When no objective evidence is available, appellate judges are left with “he said, she said” testimonial evidence in which demeanor evidence looms larger and are therefore more likely to allow the cases to proceed to trial. The presumed propriety of appellate judicial review of audiovisual evidence not only explains the different results in Tolan (no audiovisual evidence of police shooting and vacating the lower court’s finding for the defendant officer) and Plumhoff (video evidence of a police car chase resulting in the Court finding for the officer), but it also will have greater significance in current police excessive force cases given the omnipresence of smartphones and police recordings. At the same time, it is worth questioning whether appellate judges should continue to exercise limitless, de novo review of present-day audiovisual evidence, which may require as much understanding of context as traditional demeanor evidence.

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