Nineteen cops went back to school to learn about a new official New Haven policy: Citizens should no longer get arrested for using their cameras to record police actions in public.
The police Thursday released the new policy, General Order 311.
“It is the policy of the New Haven Department of Police Service to permit video recording of police activity as long as such recording does not interfere with ongoing police activity or jeopardize the safety of the general public or the police,” the order reads. “The video recording of police activity in and of itself does not constitute a crime, offense, or violation. If a person video recording police activity is arrested, the officer must articulate clearly the factual basis for any arrest in his or her case and arrest reports.”
Police Chief Frank Limon drew up the policy after the Independent reported on several cases of cops arresting or threatening to arrest citizens for using camera phones from a distance as cops arrested troublemakers in the downtown nightclub district. In one case then-Assistant Chief ordered a citizen arrested and his videos erased; Limon released a separate internal affairs report Thursday concluding the Melendez violated department rules.
Meanwhile, Limon’s team has started making sure beat cops know about the new policy.
Assistant Chief Tobin Hensgen led a session about the new policy during training Thursday afternoon at the police academy on Sherman Parkway. (Click on the play arrow at the top of the story for a sample.)
Nineteen officers were there as part of a week-long annual in-service training program. Before and after the session with Hensgen they were being brought up to speed on motor vehicle stop policy.
Hensgen presented a PowerPoint and a video from the Cato Institute about the new omnipresence of cameras in public life and the need of officers to recognize people’s rights to use them. Hensgen noted that officers can order a camera put away or confiscated if the user is “interfering” with an arrest—but that the mere use of the camera can’t constitute “interference.”
Or, as a training bulletin he distributed put it, “Simply recording an incident as it transpires on a public way is not sufficient grounds to make an arrest.”
“If a citizen wants to exercise his First Amendment rights and photograph you while you’re in a squad car and uniform or on detail while you’re performing your duties, as long as they’re legal, you have no expectation of privacy,” Hensgen said.
Kristen Fitzgerald, a motorcycle cop present at the session, said afterward that she found it helpful. “I never had a problem” with public using cameras, she said, and it’s helpful to have a clear policy in place. (She was the officer ordered by Melendez last fall to arrest a citizen who had used his iPhone to photograph an arrest. The internal affairs report found no wrongdoing on her part.)
(Click here to watch and read about some “greatest hits” videos of New Haven cops on the job.)
Hensgen noted that cameras can work in cops’ favor—by providing evidence of what citizens do wrong when they’re getting arrested.
After the session an officer asked him if cops have the right to take people’s cameras as evidence in those instances.
The Fourth Amendment protects citizens from having their cameras seized on the spot, Hensgen said. He suggested the officer ask the citizen photographer for permission to use the video. If the citizen refuses, the officer can take his or her contact information, then seek a warrant for the material.
Hensgen showed this video from an incident last fall to illustrate how sometimes police are unfairly portrayed by selective editing. In this instance—involving an arrest of a drunken brawler at Toad’s—a bouncer, not a cop, was ordering the arrestee’s friend not to use his camera; and the officer was indeed being interfered with as he tried to handle the case.
The class was not shown this video, of an officer on Crown Street grabbing a camera out of a citizen’s hand last Sept. 10. The officer threatened to include the photographer in a beating. “You don’t take pictures of us,” he declared. That incident remains under internal investigation.
Thanks to NHI and CopWatch-New Haven among others.
posted by: Ex-NHPD on March 4, 2011 2:35pm
I think the more appropriate venue for codifying the department’s position on public video taping of officers would be a “Training Bulletin”, rather than a general Order.
I guess the NHI video was not rolling when a member of the class told Hensgen that something he told the class was in conflict with what the class had been taught in a “Legal Update” class before he made his appearance.
The tape certainly was not rolling when Hensgen confronted that same officer in the hallway of the NHPD Academy, after Hensgen’s class. It certainly would have been instructional to see how an A.C. of the NHPD (who has the Academy in his span of authority) deals with a subordinate who the A.C. felt was out of line for bringing up a conflict in info being presented by two different instructors.
Too bad a member of the NHPD did not pull out their video recording device and then see what happens to them when they taped the A.C. in action.
[Note: We did look into that question after the session. It turned out Hensgen had been right and the previous speaker incorrect on Connecticut’s law regarding permission to record audio.]
This is great. I’m glad to see our department responding well to this.
posted by: Ellis Copeland on March 4, 2011 3:46pm
Breaking News Flash—Cops ordered to Not arrest someone who is NOT breaking the law
posted by: Ken on March 4, 2011 9:10pm
Ask for permission to seize a phone or camera that video tapes a crime that just occurred and if the person says no, take their information and get a warrant. WOW this guy is teaching now. What if your told that they are not going to give you their information and they leave, but you write your report and put in there that there was video of a crime and Chief Hensgen said we couldn’t take the phone. That should go over big with the States Attorney’s office and the media. Why dont we just walk away from crime scenes, because you must preserve the evidence as it is, so nothing is lost. Can the video be erased? Sorry Chief I will seize the evidence and defend my actions with a thoroughly written report.
Show me the case law from the US Supreme court and then I will do as it says. Until then it’s good Police work!
Is this guy certified yet and if not this stuff should be sent to POST.
Let me be clear I don’t care who video tapes me, but if I am making an arrest and the person I am arresting commits another crime while I am arresting them be sure I will take that camera or phone.
As for Looney, need I say more.
posted by: Liberte on March 5, 2011 1:53am
I would like to know when everything was happening with the police, the arrests for video tapping, the strong arm tactics, etc….
WHERE WAS STATE’S ATTORNEY MICHAEL DEARINGTON? WHY WAS HE PROSECUTING THESE CITIZENS FOR EXERCISING THEIR RIGHTS?
WHY DID THE NEW HAVEN JUDICIAL DISTRICT STATE’S ATTORNEY, MICHAEL DEARINGTON, NOT INVESTIGATE THE ABUSIVE POLICE PRACTICES AS POSSIBLE CRIMINAL OR CIVIL VIOLATIONS OF CITIZEN’S RIGHTS?
WHO INVESTIGATES THE POLICE, WHEN THE POLICE ARE BAD?
Sorry for the caps, but there is something missing here, no? Who does a citizen go to in-order have the police investigated?
Sure, there is a new general order, maybe Sen Looney’s law will pass, but in the end, who defends our rights, as citizens? Do we have go out and hope to pay for a lawyer, accept a plea deal, or just roll over and take it? (Or be a Yalie, so somebody listens to you?)
posted by: J on March 5, 2011 1:37pm
I was in the class when the Chief was instructing and during the class he showed a video of a .22 cal gun that was disguised as a cellphone. Prior to this I did not realize that such a thing existed, however I have seen a TASER device disguised as a cellphone. This being said if a citizen is near me when I am conducting an investigation or arrest and pulls out a cellphone to film what I am doing I will immediately ask for the phone to inspect it. If they do not comply then I will take it. If it is indeed a phone I will return it to the citizen and they can continue to film at a safe distance away from me. However, if while I am doing this has in anyway interfered with my investigation or caused me or a third party to be injured as a result of my attention being diverted, I will most certainly arrest the person filming for interfering.
Just because you can film us while conducting our normal activities does not give you the right to place us in harms way by interjecting yourself into our investigations.
Also if I am conducting an investigation involving a juvenile and I find that you are filming I will ask you to stop. If you do not comply I will take your phone and place it into evidence. The identity and image of a juvenile will be protected. Of course if you see a officer abusing a juvenile or anyone for that matter and film it this is a different story.
[Editor’s Note: I believe you will be breaking the law in that latter case. If you do that to us, we will pursue all legal avenues to make sure you are punished. However, I agree with you that we shouldn’t film the juvenile; that is our responsibility. However again, we do feel comfortable filming the scene but leaving the juvenile’s face and identity out of it.]
posted by: Ellis Copeland on March 5, 2011 2:18pm
Liberte—.... You can’t go to Dearington for anything. He and his office are utterly USELESS—and that’s the best that can be said for them. I’d fill you in on the real deal but Paul would go apoplectic as he seems committed to preserving the mobbed up nature of this hamlet.
Ken—if you are NHPD ... Your comments belie your contempt for America and the Constitution. ...
posted by: Ex-NHPD on March 5, 2011 6:47pm
Back in September, 2010, incidents began occurring, and being reported to the NHPD, that NHPD officers MIGHT BE overstepping their authority in preventing the public from video recording them in action. Though each incident should be looked at on its own details, the claims certainly should have gotten the attention of the Chiefs.
It would not have taken a great deal of effort to address the issue IMMEDIATELY with the members of the NHPD. However, a General Order was not released until March 3, 2011. That General Order, though 2 pages long, can be boiled down to this—unless people video recording cops in public are preventing the cop from doing their job, it is legal for them to do so. Limon could have passed that message on to the cops, at line-ups, in September, October, November, December, January, February. Any of those times.
What level of research was required to come up with that brilliant document that it took until March, 2011 to have a final revision and be released? And if it was in effect on February 1, 2011, (as it states in the General Order) why was it not released then?
How many other incidents could have been averted had the Chief acted decisively? Melendez’s incident occurred on September 25, 2010; this was after incidents that had already happened. If the cops had not been sufficiently trained in that area, why wait months to get the word out to them?
In my opinion, Limon dropped the ball on this matter. By failing to act once these incidents were being reported, he wasted valuable time in investigating the concerns, detecting any wrong actions by members of the NHPD, correcting the members of the NHPD to prevent future problems. It took 6 months from the first incident until the release of the General Order!
posted by: Edward_H on March 5, 2011 7:38pm
Also if I am conducting an investigation involving a juvenile and I find that you are filming I will ask you to stop. If you do not comply I will take your phone and place it into evidence. The identity and image of a juvenile will be protected. Of course if you see a officer abusing a juvenile or anyone for that matter and film it this is a different story.
Absolutely disgusting! Even with a clearly worded order directly from the Chief there are still cops who insist on taking the law into their own hands. There is no exception in the order or in the law regarding the filming of juveniles while police are conducting business in public. What other General Orders and Constitutional freedoms do you feel you can ignore on a whim?
posted by: J on March 6, 2011 7:38am
No, if I am dealing with a juvenile while conducting an investigation then the entire well-being of that child is MY responsibility, not the individual who is filming.
I completely understand that you or anyone would pursue me or any other officer legally, unfortunately that comes with this job.
If I am to be pursued legally my report will show my justification for what I have done and I will have to play the odds. I can say that anything regarding a child plays heavily on the feelings of all adults, so I would find it extremely hard for any court to find fault in what I did. I, however will sleep well knowing I did the right thing legally or not.
I guess we will agree to disagree.
[Editor: We are not disagreeing about what the law says. We are not disagreeing about what the policy is. We are disagreeing about whether you should follow the law; that’s your choice. In terms of protecting the juvenile—in the case of the Independent, we agree not to run the face of a juvenile being arrested. If another citizen or media outlet chooses to run a photo of juvenile in public causing trouble, the law is 100 percent clear that this is legal and permissible and that you are breaking the law if you try to prevent it.]
posted by: J on March 6, 2011 9:30am
To Edward H:
Exactly there is nothing in the order concerning juveniles so I will do what I think is right until there is something specific regarding juveniles, it is irrelevant what you think because I am the one responsible for the child.
Again I will error on the side of caution and let it play out in court. If I was wrong then I will deal with my punishment, but that is my decision.
[Editor’s Note: This question has been hashed out in detail by the people who run your police department and the city’s legal time. And they have in turn notified you in writing and in person what the law is and what the policy is. What happens on a public street is public. Anyone can photograph it. You are breaking the law if you proceed as you promise to here. You have been notified repeatedly that your planned course of action violates the law as well as department policy. There is no gray line here. ]
posted by: robn on March 6, 2011 9:56am
To the cops who are claiming various situations in which they would seize a recording devices (including the recording of a juvenile arrests)...
You simply cannot legally seize recording devices if the recorder isn’t interfering with police. If you do, you’ll put the city in legal jeopardy and create further embarrassment for the force (which i think both cops and citizens would like to stop). Please speak with your fellow officers for correct advice. I’m sure that a majority of the force understands the law the same as I.
posted by: J on March 6, 2011 10:21am
posted by: Edward_H on March 6, 2011 11:33am
“Exactly there is nothing in the order concerning juveniles so I will do what I think is right until there is something specific regarding juveniles”
There is also nothing in the order concerning the elderly or victims of sexual assault. I assume you will find justification to disobey your commanding officer and break the law in these cases as well. You are pretty much stating you will break any law or disobey any lawfully given order given the correct circumstances of your own personal choosing.
” it is irrelevant what you think because I am the one responsible for the child “
What I think is relevant because my property taxes are high enough without having to shoulder the additional burden of paying off lawsuits because you lack the discipline to follow a simple order or understand the freedoms recognized by the Constitution. What I think is relevant because my business partly depends on people finding New Haven an enjoyable place to live, arrogant cops running rampant over citizens rights tend to put a damper on that. What you think is irrelevant when concerning a clearly defined lawful order given by a superior officer.
I am a big supporter of police in general but the NHPD has a real problem on its hands when officers feel comfortable enough to publicly state their intentions to disobey orders and disrespect their commanders. If these cops don’t respect the chain of command I can only imagine the contempt they have for the general public.
posted by: all for fairness on March 6, 2011 12:59pm
why doesn’t the NHI just take a ride along with the officers on the evening shifts and report back?
posted by: Jeffery on March 6, 2011 5:18pm
Mr Bass, Since when have you devolved into what is essentially called “facebook fighting”? I hope the business isn’t doing so poorly that you feel the need to “ramp it up”. Threats just haven’t been your style. Hope the change is temporary.
posted by: Jason on March 6, 2011 5:48pm
I to sat in on the class on the date the Chief was teaching and to answer the headline, no the law or General Order should not be ignored, regardless if officers don’t agree with it. I can only hope that those who choose to film officers in general exercise good judgement especially when it comes to filming juveniles.
I am unsure who “J” is but I can only hope that he/she keeps their personal feelings aside with regards to civilians filming, and follow all laws/protocols regarding this issue.
[Editor’s note: Thank you for your comment. I agree that we in the press have a responsibility to exercise good judgment, both in filming juveniles and adults being arrested, and in not getting in the way of officers doing their job. We recognize that officers are under incredible pressure often at these scenes; we do not wish to add to that pressure.]
posted by: Liberte on March 6, 2011 6:01pm
This is very troubling that officers would blatantly say they would disobey the general order and the law.
Internal investigations or not, there must be better oversight of all police departments, including the State Police.
Since it is apparent that our state’s attorney MICHAEL DEARINGTON will not protect the citizens from police, it is time for a change, a real change in structure and accountability.
Enough is Enough.
Vive la Liberte
posted by: Rich on March 6, 2011 6:06pm
To: Robn & Editors note-
If there is a video of police effecting an arrest the video can and will be seized. The video will be logged into the property room and sent over to court. It will be in the courts hands to release it once the case is over. I don’t know which lawyer your talking with, but you might want to get someone out of law school with a little experience.
[As Asst. Chief Hensgen explained it at the academy last week, you do not have the right to seize our property without a warrant. We in the press are generally happy to share our videos with you. But Hensgen advised you to get our personal information if you’d like to contact us later with a warrant. In our case, at the Independent, it might not be necessary because we’re happy to share our videos with everyone. I don’t quite get the hostility from you and some of your fellow officers, your wanting to have a confrontation and try to intimidate us out of doing our job, with the threat of seizing and erasing our work. We will do our job. And we respect you for doing yours and keeping the city safe.]
posted by: Kev on March 6, 2011 8:17pm
Let’s clear something up. The article states, “19 cops went back to school to learn about a new policy.” That is poorly written because 19 cops did not go “back” to school. They, along with the rest of the department attended in service training which is conducted annually. The assistant chief’s class was a mere half hour out of the training day. So stop wording it as if those 19 cops needed additional schooling. Simply poor and misleading.
posted by: yimski on March 6, 2011 8:27pm
NHPD posters -
What’s the big fuss? Security people always tell us, when we get bent out of shape about tedious searches and checks “hey, nothing to hide, nothing to worry about.”
So, if you’re doing your job professionally and ethically, a little video surveillance shouldn’t bother you.
posted by: Ken on March 6, 2011 8:32pm
Read my comments carefully. I did not say I would disobey the new order I do not have a problem with being videotaped while I am working, it happens now and you have not seen me on you tube or any other blogs. I know the Bill of Rights, you know the first ten amendments to the U S Constitution. What I said was I would seize a phone/camera if the person was video taping a crime in progress or an arrestee committing another crime while I was making the arrest such as Interfering With Police. At this point I am well within my rights to seize the phone/camera. It is called the preserving of evidence and I could be disciplined for not properly taking and securing evidence to a crime. Yes, that’s another General Order.
robn I must say you have a serious ax to grind with the Police I wish I knew what the real issue was because I feel sorry for you because you are really angry with us. I think if you knew me and 99% of my colleagues you would feel differently about us. Sorry for your bad experience.
Can someone give me the State or Federal Statute that say’s taking the phone/camera is a crime. Don’t say Larceny because it’s not, the phone/camera goes into the property room as evidence. No personal gain there.
posted by: Anon on March 6, 2011 9:24pm
When the city no longer provides these lawless officers indemnification and they risk being put in jail and losing their personal property then they’ll start giving a damn about the law and people’s civil rights.
posted by: Ellis Copeland on March 6, 2011 10:12pm
To Anon—you are right on. I have personally had an NHPD officer, when I called him on doing something illegal in my presence, say straight to my face, “I’m indemnified, I don’t give a F###.”
posted by: Student on March 6, 2011 10:49pm
@Ken- There is a legitimate interest, for the police and the public, to video tape incidents to provide an objective portrayal of events. When citizens exercise those rights and evidence of a crime is collected in the process the police and the public should collaborate in the process of gathering the evidence. A working relationship between the citizenry and the police should serve as a back drop for every action you take.
In a strictly legal sense. If you seize a recording device, and the person is still recording you are in direct violation of the NHPD video policy. If you wait until the recorder has stopped recording you are preventing that person from recording any further events. Also, seizing people recording devices discourages them from exercising their right to engage in civic participation.
An officer can seize evidence if the officer has probable cause to believe that the evidence sought will aid in a particular apprehension or conviction. At first blush this would lend support to your argument. However, as per your request of Supreme Court case law, in Andresen v. Maryland (note 11) the court stressed that police should seek to minimize unnecessary intrusion on privacy during the seizure of highly personal items.
It seems to me that your Assistant Chief recognized that principle when he gave instructions to collect the contact information of the person in lieu of seizure.
posted by: unprotected on March 7, 2011 7:38am
The video or cell phone pics may be subject to an exception of a search warrant. Exigent circumstances and mobility (like a vehicle) may apply… OOPS looks like I found a loophole!!!!
posted by: Anon2 on March 7, 2011 8:16am
Copeland is right that Bass would never let him post the goods on Dearington. And he is right that Dearington has as much or more impact on how police do their jobs than any single person in New Haven. Dearington also is part of the untouchable fiefdom system of state’s attorneys which rebels against any oversight. The process of how he does what he does to make things this way is totally underreported.
Ken and J
Ken and J are both simply wrong on the law. You need a warrant to collect evidence of a crime on a person or in an abode, save certain circumstances that don’t apply here. You already know this or should know this. Luna was not an object lying in the street, he was a human being with rights who was in possession of a camera.
I am surprised at how confused you are. Luna’s instance is not at all a close call.
J describes two scenarios that are both wrong, and he says he is going to operate this way no matter what his orders are. In the first, if he stops to check that the camera is not a gun, he says that the distraction of doing this constitutes interfering with his work and he will arrest the person for that, so no matter what, anyone filming provides him grounds for arrest.
In the case of juveniles, again he doesn’t know the law. Juvenile court records are sealed. It is not the case that they walk around the world with a veil wrapped around them. Filming a juvenile being arrested in public is legal, period. A kid on the street is not a court record.
News outlets use their discretion in deciding whether to publish it or not. Sometimes they decide to break their rule for good reason. In one case I know, in a small town one particular juvenile was so dangerous, and so murderous, that the newspaper felt it warranted identification. That’s their call and they were right to do it. It was the only juvenile they identified in years.
Unless you want a police state, and it sounds like you do, you have to see the limits of your power and understand you don’t make choices for people that are not yours to make.
I don’t know what NHPD is going to do with these ... who continue to insist on rogue behavior. It’s like talking to a wall. It’s as if they care more about pushing their weight around than they do about upholding the law and protecting civility. I wish they would find another line of work, but what jobs out there give you the privilege of abusing people with superior chances of getting away with it almost all the time? Those jobs are mostly in law enforcement. I think some people go into policing because they need a safe place for personal tendencies that are not acceptable in most jobs.
posted by: Anon2 on March 7, 2011 8:26am
Another note to the PD officers talking about disobeying the new policy:
Not only are you outlining procedures that violate the rights of residents, you are ignoring the very rare instances in the law where the press enjoys heightened legal protection.
The state criminal code states that the notes, audio and visual, and other materials of members of the press require a specific warrant showing that the materials were used in the commission of a crime.
And under the state press shield law, the press can not be forced to turn over materials without a special showing argued in court and it is not easy to get.
So there are two additional laws that apply to the press, which is unusual because otherwise, and mostly, the press has no special rights over anyone else.
Press and non press can tape and will continue to do so.
Cops only erase tapes that reflect badly on them. They say they love tape that shows crimes, but they hate tapes that show them in crimes.
Every single instance of frustrated access to taped evidence is when cops are covering up their behavior.
posted by: robn on March 7, 2011 9:06am
Except for questioning pension structure and responding to comments here, I have zero axe to grind with NHPD…no good or bad experiences.
I guess we’ll all find out the legal answer when Luis Luna’s case is done.
posted by: ken on March 7, 2011 9:27am
Apples and oranges folks. There are 7 exceptions to the search warrant rules and Terry V Ohio comes into play here so all of you wanna be cops and lawyers give it up you are all wrong!
As far as Luna goes that’s totally different then what I am talking about. As far as the media they will not destroy the video and therefore, it will be available. We don’t seize Media video on the spot. All other crime video can be seized, it is mobile and can be destroyed or altered.
Get the facts and the law straight most of you are wrong.
Robn you seem to have lots of time talk to a Constitutional Lawyer. Ask him then let us know. And by the way we will need his name.
posted by: Anon2 on March 7, 2011 9:45am
I posted this on a budget story but it bears posting here as well:
It is interesting to check our Fitch’s rating announcement on New Haven bonds.
There is background on the city’s finances with emphasis on city’s labor costs. Buried in it is New Haven’s litigation costs as well, which are out of whack with its litigation reserves. Thought this was interesting in light of certain police insisting on arresting camera toting pedestrians, essentially saying ‘bring on the lawsuits.’
Cuts in jobs by seniority saves pension, benefit and worker’s comp money. Cuts in jobs by competence and character saves pension, benefit, workers comp money, plus lawsuit money and probably other monies it is difficult to quantify.
The problem with what these two officers are saying, aside from the legal, ethical, moral questions it raises, is the financial one.
These two officers are an expensive habit. I think it would be in the best interests of New Haven if they worked elsewhere. Certainly, the law and city policy does not persuade them they need to behave differently on the beat, according to them. You can’t spend your lives trying to change every person, especially ones you absolutely can not financially afford.
posted by: Paul, what now? on March 7, 2011 9:59am
Paul, I’m just wondering - what do you do now? By making their comments part of the story you’ve helped validate that these posters are very likely NHPD officers. They clearly do not agree with either the law or their department’s policy and they’ve stated their intent to violate both. Do you file a formal complaint with the PD? Call the Chief and suggest he read this thread and then order the entire class in for more training? You do a great job of speaking out on behalf of people who have had their rights trampled on by the PD. Don’t you now have some obligation (even if it’s only moral or logical) to step up and take some action?
On another note, I cannot help but notice that the former assistant chief really did some damage when he ordered the fellow with the camera-phone arrested. If criminals really are disguising guns as cell phones, it’s only a matter of time until some officer hesitates when he shouldn’t and gets hurt.
To all the officers reading this, you might do well to simply assume that everything you say and do on the street is being recorded and will be played in the media.
To all my fellow citizens, try to understand that what you’ll see from time to time will not be pretty (and may sound offensive to you). Much of their job isn’t, and what you’re seeing is NOT always police brutality.
posted by: robn on March 7, 2011 10:48am
I don’t think I need a Constitutional lawyer to read Terry vs Ohio and recognize that it isn’t applicable to whats gone on in New Haven. The TvO thrust was that search and seizure was acceptable if an officer has a “reasonable suspicion that the person has committed, is committing, or is about to commit a crime.”
BTW, I disagree with some of the comments posted here by (presumably) officers but I’m still glad that you’re posting. Whether or not it represents an ironclad view or an unconscious reflection that you’re vetting, its good to have contrary viewpoints in this forum.
posted by: 093 on March 7, 2011 12:49pm
Citizens are allowed to tape police in public. There is no doubt about that and no one I know is arguing that point. The point in question is if the police are allowed to seize a cell phone once the person has taped a crime in progress other than the crime the offender is being arrested for. The police can indeed seize the phone IF they believe that the video will be deleted. This is an exception to the search warrant known as destruction of evidence. Now on that note, they can only seize the phone and then apply for a search warrant for the video on the phone. It is called a Joyce/Mincey warrant. If the person filming allows the police to take the phone or agrees to give name, address, etc. and agrees to not delete the video then you can apply for a warrant at a later date. As far as the media is concerned this is never a problem as they are always willing to co-operate and therefore the seizure is not needed. In most of these situations, no seizure is needed as the person taping is more than co-operative once the situation is explained to them. Again, the seizure can only happen if the officer truly believes the video will be deleted. I hope this clears up some of the confusion.
posted by: Let's clarify on March 7, 2011 2:05pm
In layman’s terms:
- property is constitutionally protected - a video recorder is property - the state (including cops) cannot take property without due process of law - a police officer can take the steps necessary to stop a crime from being committed so a police officer can take a video camera to stop a crime, say for instance to stop me from beating you with my video camera - a police officer may stop you from destroying evidence so if the officer knows you have video tape of a crime and sees you about to throw it in the Quinnipiac, then he/she can stop you - a police officer cannot assume without probable cause that you are about to commit a crime so walking on the bridge over the Quinnipiac would not constitute probable cause to rip your video camera out of your hands - a police officer cannot take your video camera to stop you from taking a video of a crime or an arrest
Hopefully that is helpful. The law on this is pretty straightforward actually and largely driven by the Constitution and Supreme Court interpretation thereof. But it is not just one law, but a combination of due process, free speech and criminal jurisprudence.
I find often when describing what the law is that throwing case names at people is not very helpful and frankly sometimes meant to intimidate. I think if you read the above bullets, not only will it make sense but it will comport with the different cases that people are throwing around here.
posted by: He-Man on March 7, 2011 3:40pm
To the cops: Please don’t conduct your investigation based the comments of clueless citizens and members of the press. You attended the academy and legal updates. You know the rules of exergency, mobility, and other exceptions to a seizure without a warrant. And you have a chain of command including your street bosses.
To Paul Bass: You have to understand the difference between footage caught by members of the press and of that caught by a passing by citizen with an iPhone. You would expect a member of the press to cooperate with giving police footage of a crime that occurred. However a citizen with an iPhone has a much higher rate of mobility and you could not risk that footage being loss. Think about your loved one being raped and the only footage of the perpitrator was on an iPhone, but that footage was lost because the cop was scared to seize the phone. Just remember there are exceptions, so don’t think you have a full understanding of the laws of search and seizure with just one sit in on just one class.
posted by: Ken on March 7, 2011 3:45pm
Some of you will never get it. We (The Police Know) we can’t take your items for no reason, but if you video or take photo’s that are evidence to a crime we can, it’s simple.
Heres an example, your car is inside a crime scene where a person has just been shot, can I hold your car until I am done with the crime scene. The answer is yes. I can keep you out of your own home if it is part of a crime scene and there is evidence I need to collect. I know we need a search warrant, but imagine is there anything more sacred than your home. If you video a crime you stand the chance of losing your phone/camera.
Question: A loved one is raped and it is taped on someones phone when the cop finds out can he take the phone from the person who has it. Remember the phone can be thrown out and or the video can be erased. Can the Cop seize the phone without a warrant? I will answer later.
posted by: Anon2 on March 7, 2011 9:02pm
Ken, just go for it. I mean, isn’t this what would satisfy you the best:
Whenever you want to arrest someone for resisting, or interfering, or creating a public disturbance, or heck, maybe strangling a cat, why just grab the cameras on people around that “crime scene?”
Heck, why not just take every single person on the street at the time of the offense into custody as material witnesses? How’s that? Is that enough for you?
Somehow it seems to me, the only thing that would be enough for certain officers is if they could erase witnesses’ memories as easily as they erase video on camera phones.
posted by: Anon2 on March 7, 2011 9:40pm
“Let’s clarify” did a great job of laying it out.
Also, Ken, you are wrong about the press being required to save tape for police. Unless they are asked to preserve it, they preserve it only so far as they need or want to for news purposes, and nothing more. And being asked to preserve it will cause them to preserve it. It will not cause them to turn it over.
Some reporters save it forever.
Some reporters destroy it after their story appears and enough time has gone by to allow for anyone in the story to say they were misquoted or something like that. The tape or notes are checked and the reporter says, no, I didn’t get it wrong or yes I did and runs a correction.
No one is sitting around the newsroom saving news materials in case the police call someday saying they need it. If they need it, they have to speak up, and if it is something that was NOT published, outtakes for instance, the chance they will end up in court arguing for it, while the evidence is preserved under an order, is as good as guaranteed.
Sometimes the press empties their notebooks into their stories, and their cameras, just to avoid that unpleasantness.
This is the thing: the press is not an agent for government. It is not an investigative, supplemental arm of police investigations and automatic cooperation from the press should never, ever, ever be assumed.
US Free Press jurisprudence is nothing if not full of cases reiterating this, over and over and over again.
Paul’s tapes, from what he says, are all publishable. Don’t be misled from what he says that if he had off the record tape that he would just turn it over to PD. No way would he do that. Generally, if he can’t publish it for whatever reason, such as confidential sources being interviewed for instance, he is simply not going to give it to you without a court order. That’s news ethics 101. And it’s the law. Who would ever trust him as a reporter?
The lesson here is we all have limits on our power and if we didn’t this wouldn’t be America, it would be an oppressive totalitarian nightmare. So, be careful what you wish for and stop hankering to extend your power beyond your powers, vested in you by the state.
In this country, we are ALL obligated to uphold the constitution, every last one of us. That’s what it is all about. People who push their roles beyond the legal limits upset the plan. There is more at stake than what you happen to think is right, legal or not. The pebble ripples far from the source. THere are consequences bigger than whatever immediate goal, good or bad, you’re trying to achieve.
Few people don’t empathize with your desire to protect a juvenile’s identify, for example, but you need to be aware of the larger consequences of that seemingly innocuous decision.
posted by: Anon2 on March 7, 2011 9:52pm
The entire wellbeing of that juvenile is not soley YOUR responsibility, it is the responsibility of ALL of us, ultimately, with All and Each of us playing very different roles which ultimately ensures he or she continues to grow up and live in a democracy.
What you are proposing is shortsighted and more destructive than you realize. It is a good intention with a bad long range result and even some immediate bad results. The founding fathers were wiser than you give them credit for, and you can’t decide everything, none of us can. This is a democracy, and could be a better one, but we all have to play our part. No cowboy crusaders operating above the law are going to make it better and they aren’t playing their part when they are doing it.
posted by: LSAT Ken on March 7, 2011 10:02pm
Ken is a frustrated wanna be lawyer. Poor guy.
posted by: Disisgarbage on March 8, 2011 2:08am
First of all Chief Melendez did not lead that charge into Elevate, Limon did and tried to deny it. This was the fastest policy ever presented, probably because it has nothing to do with Officer safety. There is policies still waiting revision that deal with things that matter for approx. 5 years. The great thing about this policy is that the cops, if they are smart will now also use devices to record the bad behavior of people they arrest prior to their courtroom/IA dress up stage. Smarten up NHPD and use these policies to your benefit. According to your Chief people have no expectation of privacy!!!!!
posted by: Anon on March 10, 2011 11:18am
You forgot to add that, in contrast to what you outline as the law, the only reason police have been seizing and arresting videographers so far is to ERASE the evidence without warrants, not PRESERVE it.
I am amazed at the comments suggesting that this one incident won’t mar Lt. Melendez’s good record. What pains me is that in the mainstream, the statement is true, and it is true because so many think it is OK for PD to break the law, mistreat people and give them bogus arrest records they have to live with for the rest of their lives.
Others complain, oh, why ruin Melendez’s life and record, forcing him to resign over this one incident, as if the incident isn’t even serious.
He violated a man’s life, he illegally seized and destroyed evidence and burdened the arrestee with a permanent arrest record, yes, permanent, even if legally “erased” in court from the usual kinds of public view. Don’t think it isn’t going to be a burden for Luna for the rest of his life. Frankly, probably Luna doesn’t even realize yet how much it can affect him, and under current law, there is absolutely nothing he can do about it. The suit won’t change it, it will just compensate him for the current and future damages it will cause him.
And supposedly this is no big deal because it is practically conventional practice. But that makes it an even bigger deal, it means it is a common, every day corrupt practice.
Melendez’s reputation is poor in my book and is likely to stay that way. None of this was good enough to earn respect. NHPD’s reputation is poor too, because of so many indicators coming from the department that these illegal acts are OK practice and indicators city hall and PD still don’t get it.