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Should You Attach the Video to Your Complaint?

7 min read by Institute for Police Conduct, Inc.
video body-camera evidence drafting complaint motion-to-dismiss

You have the body-camera footage. It shows the officer grab you before you said a word. Your first instinct is to attach it to the complaint so the judge can see it.

Stop and think about what else is on that recording.

After reading this article, you should be able to:

  • explain what happens legally when a recording becomes part of your complaint
  • decide whether to attach, quote, or only describe a recording
  • describe what video shows without saying more than it proves
  • handle the defense’s attempt to put its own video in front of the court

Read this with How to Write a Section 1983 Complaint and the term pages on incorporation by reference and Rule 12(d) conversion.

What incorporation does

On a motion to dismiss, the court normally reads only the complaint and accepts your facts as true. Anything you attach becomes part of the complaint under Rule 10(c). Anything you quote or rely on heavily may be treated the same way under the doctrine of incorporation by reference.

Once a recording is incorporated, the court may watch all of it. Not the 40 seconds that help you. All of it. And several circuits hold that when an incorporated document contradicts the complaint’s allegations, the document controls.

That means a recording you attached to prove one point can be used to dismiss a different count. The video that shows the officer grabbed you first may also show you pulling your arm back, which the defense will call resistance. The audio that captures the officer’s threat may also capture your profanity, which the defense will call disorderly conduct.

The audit before you decide

Before you attach, quote, or describe any recording or document, review the entire thing with the defense’s eyes.

  1. Watch or read every second of it, including the parts before and after the encounter.
  2. List every scene, statement, or gap the defense could characterize against you.
  3. For each one, decide whether your complaint can explain it honestly.
  4. Note what the recording does not show: angles blocked by a body or a car, audio dropouts, the seconds before recording started.
  5. Check whether the recording suggests any offense the officer did not name. Under Devenpeck v. Alford, probable cause for any offense defeats a false-arrest claim.

Then ask whether the benefit of incorporating outweighs the risk that the whole recording controls over your allegations. Often the answer is to describe, not attach.

Three options

Describe. Plead what happened as facts from your own knowledge. “Officer Martinez grabbed Plaintiff’s left arm within two seconds of reaching him. Plaintiff had not moved toward Officer Martinez.” You may add that a body-camera recording exists and that you expect it to confirm these facts, without making the recording part of the complaint. This keeps the court on your allegations at the pleading stage.

Quote. Quote a specific statement from the recording when the words themselves matter. “On the body-camera audio, Officer Martinez says, ‘That’s what you get for filming.’” Quoting one statement risks incorporation of the whole recording in some courts, so quote only when the words do decisive work and the rest of the recording survived your audit.

Attach. Attach the recording only when the complete recording, viewed by a skeptical judge, helps you on every count and answers the defense’s likely characterizations. This is rare.

How to describe what video shows

When you do describe a recording, describe only what it shows continuously and clearly. Courts credit video over allegations when the video is unambiguous. When it is not, they should not. Your descriptions have to be accurate enough to survive the judge watching it.

  • Say what is visible. “The recording shows Plaintiff’s hands at his sides” is a fact. “The recording shows Plaintiff was calm” is a characterization.
  • Mark what is not visible. “Officer Lewis’s body blocks the camera’s view of Plaintiff’s right hand from 03:12 to 03:19.” If you do not mark the gap, the defense will fill it.
  • Mark uncertain speakers. If you cannot tell who said something, say so.
  • Do not say a recording “clearly shows” anything unless a stranger watching it once would agree.
  • Do not use a transcript, a report, or your memory to describe what the video shows. Describe what the video shows.

Preserve the timing

Timestamps decide seizure and force questions. Two rules:

  • Never round later. If the officer’s hand reaches your arm at elapsed 04:17.9, the event began at 04:17, not 04:18. State the second in which the event began.
  • Separate the events. A seizure by show of authority is complete when you submit, for example when you stop and put your hands up on command. Later physical contact is force during that seizure. It does not move the seizure start. Plead each event at its own time.

If you cite body-camera elapsed time, say whose camera. If the recording has an on-screen clock, give both the elapsed time and the clock time.

When the defense attaches the video

Defendants routinely attach body-camera footage to a motion to dismiss and ask the court to watch it, even when your complaint never mentioned it.

Your response has three parts:

  1. Object. The recording is outside the pleadings. It is not attached to the complaint, and if you did not rely on it, it is not incorporated.
  2. Ask the court to exclude it. Decide the motion on the complaint’s allegations, which are taken as true.
  3. In the alternative, demand conversion. If the court is going to consider the recording, Rule 12(d) requires that the motion be treated as one for summary judgment and that you be given a reasonable opportunity to present your own evidence, including discovery under Rule 56(d).

Do not respond to their video with your own declaration about what it shows unless you want the motion converted. Submitting evidence can waive the objection.

If your complaint did describe the video, expect the court to consider it. That is why the audit comes first.

Scott v. Harris is not a pleading case

The defense will cite Scott v. Harris for the rule that a court may disregard a party’s version of events when video contradicts it. Two answers.

First, Scott was decided at summary judgment, on a full record, with the video authenticated and both sides’ evidence before the court. It did not hold that video can override a complaint on a motion to dismiss.

Second, Scott applies only when the video is so clear that no reasonable jury could believe the plaintiff. Tolan v. Cotton reminds courts that even at summary judgment, they must view the evidence in the plaintiff’s favor and may not resolve genuine disputes about what the record shows. Most police video is partial, shaky, and silent at the wrong moments. Say precisely what yours does not resolve.

Two Fifth Circuit examples

In Buehler v. Dear, an activist arrested while filming police lost his false-arrest claim at summary judgment because the video, viewed in full, supported the officers’ account of the distance and the crowd. In Bailey v. Ramos, a man who went downtown to confront officers lost his retaliation claim because the recording supported arguable probable cause. In both, the plaintiff’s own footage was central to the defense.

The lesson is not to hide video. It is to know what it shows before you decide how the court will see it.

Preserve everything

None of this matters if the recording disappears. Send a preservation demand for all body-camera, dash-camera, jail, and surveillance video the day you decide to sue. See the evidence preservation template and the term page on spoliation. Save your own copies in at least two places.

Check Your Understanding

  1. Your body-camera copy shows the officer shove you without warning at 02:40. It also shows you shouting profanity at the officer from 01:50 to 02:35. Do you attach it?

    Show answer Probably not. Attaching it puts the profanity before the court as part of your complaint, and the defense will argue it supplied probable cause for disorderly conduct or a threat justifying force. Describe the shove as a fact from your knowledge, plead that you were standing still with your hands visible, and address the speech honestly in the facts. Save the video for summary judgment, where you can put it in context with a declaration.

  2. Defendants attach the video to their motion to dismiss. Your complaint never mentioned it. What do you do?

    Show answer Object that it is outside the pleadings and not incorporated, ask the court to exclude it and rule on the complaint, and in the alternative ask for conversion under Rule 12(d) with time for discovery. Do not submit your own evidence about the video unless you want conversion.

  3. The officer’s camera is blocked by his own arm from 03:12 to 03:19, the seconds when the report says you “pulled away.” How do you plead that?

    Show answer State the gap as a fact: "From elapsed 03:12 to 03:19, Officer Martinez's arm blocks the camera's view of Plaintiff's arms." Then plead what you personally did during those seconds. Do not say the video "shows" you did not pull away, because it does not show anything. Do not let the defense say it shows you did.

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