Video Evidence and Scott v. Harris

Show of hands: How many of you plaintiffs lawyers have ever been able to win an excessive force case on summary judgment?  What about in those cases where you had video?  Surely you'd win on liability, with the trial court only sending a case to a jury to decide on damages.  Right?

No, nope, never.  Won't happen.  Hasn't happened.

What happens when the police have a videotape completely discrediting the plaintiffs case?  Applying Scott v. Harris, today the Eighth Circuit Court of Appeals wrote:

Although we view the facts and any reasonable inferences in the light most favorable to Wallingford, see, e.g., White, 519 F.3d at 813, we cannot ignoreincontrovertible evidence which clearly contradicts Wallingford’s allegations. In Scott, 550 U.S. at 380, the Supreme Court of the United States explained, “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
The videotape conspicuously refutes and completely discredits Wallingford’s version of the material facts upon which she bases her excessive force claim against Deputy Olson. The videotape demonstrates, as a matter of law, Deputy Olson’sconduct was objectively reasonable under the circumstances. See id. at 381-86. The district court erred in denying Deputy Olson qualified immunity as to Wallingford’s claim of excessive force. 
Wallingford v. Olson, No. 09-1271 (8th Cir. Jan. 25, 2010) (here).

I am a pragmatist rather than a true believer.  Even many victims of police misconduct certainly, in some Platonic sense, deserved it.  Ordinarily, then,  I would applaud that result.  Why send a frivolous case to a jury when you have videographic evidence that the plaintiff is a liar?

 Sure, there is the whole Jury Trial Clause of the Constitution.  And in some abstract sense, summary judgment is probably unconstitutional.  Still, don't we have enough frivolous lawsuits as it is?  Why not dismiss the ones that are provably frivolous?

There is a government-citizen asymmetry.  I've personally handled excessive force cases involving videos, and known and studied dozens of others cases clearly showing excessive force used by officers on a citizen.  I've never heard of a plaintiff ever winning an excessive force case on summary judgment.  Have you?

"Let the jury decide," is what a judge will tell a plaintiff seeking summary judgment in an excessive force case. When the police have the video, however, the case will never see a jury.  Why?

Unfortunately, Wallingford v. Olson is about much more than videographic evidence.  Wallingford stands for a much broader proposition: Police and citizens shall not have the same legal standard applied to their cases. How such a statist outlook on constitutional rights is at all consistent with an original understanding of the Constitution or the principles articulated in the Declaration of Independence, escapes me.