Penn Program onDocumentaries & the Law

Penn Law

TV Producers Did Not Conspire with Police To Film Excessive Force

January 22, 2014
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    Photo by AV8PIX Christoper Ebdon under Creative Commons License

By Tom Isler

Rodriguez v. City of New York, — N.Y.S.2d —, No. 2004-11173, 2013 WL 6801238 (N.Y. App. Div. Dec. 26, 2013).

 

A production company developing a nonfiction series for HBO about the NYPD Emergency Services Unit did not conspire with the police to use excessive force in order to maximize the entertainment value of the footage, a New York appellate court has ruled.

In 2003, the plaintiff in the case, Vivian Rodriguez, had been present in a Brooklyn apartment when police executed a search warrant for stolen merchandise. A detective mistook an object in Rodriguez’s hand for a gun, and shot her in the abdomen.

Steven McCarthy, a videographer, was at the scene of the raid for Eames Yates Productions, which had signed a development deal with HBO to produce a nonfiction series about the NYPD ESU. McCarthy did not enter the apartment with police, but filmed outside the building and recorded audio from a wireless microphone worn by one of the ESU squad members. (HBO never optioned the series and Yates never completed a documentary on the ESU, despite continued media interest in the ESU.)

Rodriguez sued the City, the NYPD, Yates, HBO and Time Warner, Inc. (HBO’s parent company), alleging, among other things, that “prior to and during the filming of the incident, the media defendants actively planned, conspired, encouraged, and agreed with the police that excessive force would be used during the execution of the search warrant in order to maximize the entertainment value of the video footage.” Rodriguez alleged that this plan “created an unreasonable danger” that led to her injuries.

The Appellate Division, Second Department, affirmed summary judgment for the media defendants. The key to the decision is set forth in the last paragraph of the short opinion:    

  

Here, Yates and HBO established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not participate, either directly or indirectly, in a common plan or design to commit the allegedly tortious act that caused the plaintiff’s injuries [citations omitted]. In particular, Yates and HBO demonstrated that they did not make any suggestion or recommendation as to how the police should conduct themselves during the execution of the search warrant. In addition, contrary to the plaintiff’s contention, the evidence submitted by Yates and HBO demonstrated that the videographer never entered the building, let alone the apartment in which the plaintiff was shot. In opposition, the plaintiff failed to raise a triable issue of fact.

 

There long has been a debate in documentary circles about the “camera’s” ability to capture reality on film and the effect that the act of filming has on the behavior of documentary subjects.  However, conspiring with the NYPD to enhance the entertainment value of the captured sound or footage would have been something else entirely.  

I wonder how different the opinion would have been if McCarthy had followed the police into the apartment with his camera. The plaintiff still would not have had evidence of an agreement between the filmmakers and the officers, but she might have been able to raise an issue of fact as to whether the officers were playing to the camera. Of course, documenting the execution of this warrant probably would have violated the Fourth Amendment. See Wilson v. Layne, 526 U.S. 603, 614 (1999) (“We hold that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.”).

The (meritless) claims against the filmmakers in Rodriguez hint at one of many perils filmmakers face if they start directing their subjects in any significant way. Not only does such active direction traverse ethical lines for the documentarian, but it may have undesired and adverse real-world consequences for the subjects or third parties — and the resulting footage will not likely be worth it. Most documentary subjects are not good actors, and, in my experience, whenever you ask a subject to do anything, however trivial or inconsequential, and he or she obliges, there often is a stilted quality or a palpable falseness to the footage. Similarly,if subjects, on their own, start playing to the camera, filmmakers might want to step in and remind the subjects not to do anything specifically for the benefit of the camera.

In the end, it is best to document what naturally occurs, not what the filmmaker wishes to see. And, thankfully, that’s what the filmmaker did in this case. image