(Opinion) First an apology, then a prayer and a promise.
As the editor of this news organization, I apologize to the New Haven police officers who were spoken to by one of our reporters in a way that exacerbated a tense situation at the scene of a bomb scare on Dec. 6.
I had asked the 64-year-old reporter, David Sepulveda, who lives nearby, to hurry to the corner of Harrison Street and Whalley Avenue, where someone had left two pressure cookers on the sidewalks (pictured above). Police feared they might be explosive devices similar to the one that massacred people at the Boston Marathon. (The cookers turned out to be harmless, but police had no way of knowing that.)
Officers were horrified when they saw David taking photos from across the street of the cookers. They claim he ignored them and kept taking photos. He says he immediately started moving toward them the moment he heard them.
As David walked toward them, he told them to “chill out” and “relax,” according to a newly released police internal affairs (IA) investigatory report of the incident. David says he told them to “calm down” because they were yelling at him and he wanted to let them know he was heeding their demand and walking toward them.
David is a diligent reporter with great respect for the police. He was doing his job right. In retrospect, he should have more clearly and without impatience in his voice stated what he intended: “I’m coming. I’m obeying your order.” The officers believed that our reporter had put both his life — and because they believed they needed to retrieve him — their lives at risk. Two of the officers, members of the bomb squad, were delayed a few potentially vital moments in their efforts to take X-ray photos of the devices.
When police are handling tense situations, especially ones involving potential loss of life, we need to be extra careful to communicate clearly so as not to delay or hamper their efforts. We need to be extra careful to keep in mind their need to maintain order and control. We don’t tell them to “calm down” or “relax” when they’re trying to keep people from dying. If we disagree with their orders or actions, we can wait until afterward to pursue the complaint. We have always had that policy at the Independent. I have reinforced it to our staff since this incident.
I don’t blame the officers on the scene for fearing for their lives in that situation, for not yet knowing that the police had incompletely cordoned off the scene, and for concluding that David had put their lives in danger. And if for a second or two they couldn’t hear him well or he couldn’t hear them well, I don’t blame either party for misunderstanding. That’s no crime, after all.
Or is it?
There are good reasons to take extra care to demonstrate compliance and reassurance to cops at a crime scene. One reason: They have an important job to do without having to worry about keeping other people away from danger. Another reason: Cops, especially in tense situations, can overreact to perceived rudeness or “arrogance” and then seek retaliation. Sometimes they’ll even handcuff you, trump up arrest charges, steal your property in contradiction of both the U.S. Constitution and their own department’s rules — and then have their actions whitewashed and excused by a police department unwilling to police itself.
That happens every day to black and brown people in America, sometimes with deadly consequences.
And that is what happened on Dec. 6, with less severe but still serious consequences, after officers shepherded David from the scene. Angry at him, they retaliated and misused their authority. They handcuffed him and locked him in a cruiser a block away. They took his possessions, including his notebook and camera, and set them aside at the cruiser, as is normal procedure. But then a supervisor at the scene, Sgt. Renee Dominguez, subsequently took the camera and whisked it away, without permission, without a warrant — with a stated intention of preserving evidence that would prove David committed a misdemeanor. The cops couldn’t charge David with rudeness, or to use Dominguez’s complaint in the IA report, “arrogance.” They charged David instead with “interfering” (cop speak for “We’re mad at you and want to charge you with a crime, and we can count on state prosecutors to back us up in court”) and with “trespassing.”
That’s why internal affairs investigated the incident. The police chief ordered the investigation after an article on this site raised questions about it — in light of the department’s claim that it practices a form of community policing that emphasizes “de-escalating” conflicts rather than seeing arrests as a first resort; and in light of seven years’ worth of controversies involving New Haven cops wrongly grabbing cameras, leading top cops to resign, victims to be paid settlements, and the department to promise to rewrite its general orders and retrain its officers.
The internal affairs investigation took three months. The cops who prepared it — smart, honest, dedicated cops — produced a thorough, fair, and accurate report. (Click here to read a full news story on the report.)
The report produced damning evidence about the officers’ actions and reporting not during the initial encounter with David, but following it:
• It provided evidence that Sgt. Dominguez either didn’t understand or failed to follow the department’s latest version of the general order on cameras. She states in the report that she took David’s camera for one reason alone: she “believed that the camera might have captured the evidence of the criminal charges he was being charged with of ‘interfering with an officer and Trespassing.’” A supervisor confirmed to IA that Dominguez gave that reason. As the IA report notes, cops may seize cameras only in cases of serious crimes and extreme danger. The police department has promised publicly, and in a court-approved consent decree, to drive that point home to its cops. The cops still don’t understand that point.
• The report also confirms what I saw when I arrived at the scene after David’s arrest: that, contrary to police claims that they had to arrest David for “trespassing” because he had walked past a blocked-off area, cops had failed to tape off Harrison Street, from when he came. (They did tape off Whalley Avenue at Blake and Emerson streets.) In fact, the report states that not just David, but other “pedestrians” were walking down Harrison toward the scene. The arresting officer’s report of the incident claimed that all areas had been cordoned off. But the IA report quotes a fire lieutenant stating that he eventually put up tape himself on the street to prevent people from passing through after he noticed the gap and the foot traffic.
• The original police arrest report also claimed that cops only “later” learned that Sepulveda is a reporter, after handcuffing him and throwing him in the cruiser. The IA report shows that that’s just plain untrue. Dominguez and another officer are quoted confirming what David himself said: He wore a press tag around his neck. And he immediately identified himself as a reporter when the officers approached him.
The report creates a further wrinkle that casts suspicion on the police “trespassing” claim, even if one accepts the bogus and dangerous argument that police should have turned a ten-second misunderstanding into a criminal charge in the first place.
David says he encountered one cop en route to the scene, halfway down Harrison Street. He says he told the cop he had come to photograph the devices. He says the cop pointed him to the devices and then allowed him to pass through. He says he spoke for a while with that officer. Got his name.
That officer had never come forward before the investigation. The police report didn’t quote him. But when IA interviewed the officer, it turned out that David was correct in stating that that very officer had in fact been at that spot. So David wasn’t making that up. The officer told IA he couldn’t remember encountering David. He told IA he didn’t notice anyone passing by him. He “suddenly” happened to notice someone taking pictures down the block at one point.
Just for the sake of argument let’s accept the officer’s claim of memory loss. (Although cops aren’t usually impressed by people telling them they “forgot” what happened. If those people aren’t other cops.) Even then, this report by the one officer who was the only police presence blocking David’s path to the scene would seem to extinguish any remain basis for supporting a criminal “trespassing” charge.
So based on all this new evidence, the police department ruled that its officers ... did nothing wrong at all. The report “cleared” and “exonerated” them. It sent a message that it was fine to arrest a reporter in this instance and take his camera.
How could that be?
Because, in the interest of protecting its officers rather than acknowledging a mistake, the department decided to turn all of IA’s solidly collected evidence into vehicles to excuse and cover up its officers’ actions.
The report reveals that a supervisor eventually told Dominguez to return the camera to David and ask his consent to see the photos on it. She obeyed that order. She returned to the car. While David remained handcuffed and facing criminal charges, she asked for permission to take his camera’s memory card. He had the presence of mind to shake his head no. Then she asked him to see the photos. He said OK.
To Assistant Chief Luiz Casanova, who oversees both IA and training at the department, that is evidence that Dominguez acted properly. Never mind that she failed to follow a general order in the first place. The fact that she subsequently didn’t commit insubordination to her supervisor somehow changes that. Then the fact that she tried to compel a handover of a memory card — a fact actually omitted from the report — from a handcuffed arrestee somehow further changes that, rather than compound her arrogant misuse of power.
Casanova — the top cop directly responsible for training the force in the general order on cameras — offered an even more novel legal interpretation, appended to the end of the IA report, to exonerate Dominguez. Sure, she outright violated the spirit and the letter of the general order. But if she had come up with a different interpretation, he argued, she would have had a right to take the camera: She could have argued that she needed the photos as crucial evidence of potentially explosive devices. That’s a “serious” crime.
Set aside for a second the absurdity of the argument that she might have needed David’s photos to help with the investigation into the incendiary devices. (It’s absurd because the bomb team was getting close-up X-ray photos of those devices.) Dominguez never made that argument, at least according to the report. The IA report doesn’t quote her or anyone else claiming she made that argument. And even if she had made that argument as well, she, a supervisor of other cops, was still demonstrated to be either in ignorance or in defiance of a cardinal part of the department’s policies. To the top cop responsible for training and enforcement of that order, it’s good enough (in his contorted interpretation) that she could have theoretically seized David’s camera for a better reason.
Good enough for the New Haven Police Department. Case closed. Solid police work.
Four months after this incident, David’s charges are still pending. He faces up to a year in jail.
This whitewash of an otherwise superb investigatory job by the internal affairs division is a big deal, for the police department and for New Haven, for numerous reasons.
First, It sends a dangerous message to cops: You can violate citizens’ rights and general orders, and top cops will cover up for you. You can get angry at citizens and retaliate against them, and get away with it. The police had reason to be angry. They didn’t have good reason to handcuff, detain, and arrest a reporter.
I saw firsthand how Dominguez was retaliating against David. I arrived and (contrary to what an officer states in the IA report) was granted permission to enter a blocked-off area, escorted by an officer. I approached Dominguez. I knew only the police side of the story at that point (I wasn’t allowed to speak with David), but based on that I apologized to her for the inconvenience David had caused her officers. She glared at me, eyes wide, livid. She wouldn’t speak. I asked if I could speak with David. She stormed off to the cruiser to grab his camera. At a time when her officers were dealing with a potential deadly explosion a block away that could have blown up a library and a synagogue, Dominguez decided to waste a half hour gathering evidence to build a case to support a misdemeanor charge against a reporter who, as she put it in the IA report, had acted in an “arrogant” way.
Police officials have repeatedly said they instruct their cops to de-escalate confrontations and to use arrest as only a last resort. They did the opposite here. And the assistant chief in charge of training and internal affairs publicly condones it. If one of their district managers couldn’t resolve this situation without resorting to an arrest, then she can’t in any meaningfully way de-escalate any truly challenging situation.
And the police department has now for seven years repeatedly taken citizens’ cameras in violation of its own rules and the Fourth Amendment of the U.S. Constitution. It has been unable to stop, despite promises to do so. A public that can’t hold cops accountable can’t trust the cops either. Police can’t do their jobs if the public can’t trust them.
Dominguez’s failure either to understand or to obey the rules for seizing cameras is the department’s failure. It is an indictment of the department’s top brass. It has repeatedly promised to train all officers in the rule. It has failed to do so. When officers break the rule, it does not hold them accountable. The last chief twice failed to do so, after one sergeant arrested a woman and seized her camera after she recorded him brutalizing a handcuffed suspect; and after a captain slapped a cellphone out of the hand of a Walmart shopper who recorded a dispute with her. Those are only some of the numerous reported incidents. Many other incidents haven’t been reported — either because the victims told me they were too scared of the violent cops involved to go public; or, in the case of our own reporters, because a former chief, James Lewis, put a stop to the officers’ outrageous behavior. That chief is long gone, and for seven years his successors have failed to follow his example.
Sepulveda’s case, while serious, is only the latest, and hardly the most egregious, example of this ongoing departmental failure. Examples that keep cropping up.
• Assistant Chief Ariel Melendez, had to retire from the force in the wake of a devastating internal affairs report revealed she violated department policies in arresting a citizen for video-recording police, then ordering the memory on the citizen’s camera wiped clean, then lying about it.. The incident in question occurred in 2010, the release of the report and Melendez’s departure (with a $124,500 a year pension) in 2011. The department wrote a new general order. It told cops that except in rare circumstances, they can’t take people’s cameras. They trained officers at the academy in the new order.
• Despite the new order, in 2012 an officer who was brutalizing a handcuffed suspect noticed a bystander recording his actions with a cellphone. He arrested her and seized her phone. The police chief at the time said he couldn’t discipline the officer based on the general order, because he considered the general order poorly drafted. (He did discipline the officer, who subsequently retired, for excessive force in the handling of the other arrestee in the case.)
• An attorney in both cases, the late Diane Polan, filed suit against the city on behalf of both citizens. The city settled the suit by paying $31,500 and making a promise in a consent decree to rewrite the general order and train officers in it.
• It took years to make a minor tweak in the order to rewrite it.
• Department brass continued to look the other way as officers violated citizens’ rights. In 2014, a high-ranking cop slapped a cellphone to the ground in a Wal-Mart parking lot when a citizen video-recorded her in a dispute; then, according to an internal investigation, she lied about it. She wasn’t disciplined. She was promoted.
• At a tense scene outside a liquor store on Whalley in 2016, officers demanded that a distraught woman named Tyeisha Hellamns, a friend of an arrestee, back up from the scene while she took video. She refused. So they escorted her away. Instead of de-escalating the situation — in the style of special training brass made a public show of bringing to the department — the officer swore at and threatened the woman, took away her phone, and arrested her.
The officer had a legal right to arrest her. She had “interfered.” He also had the ability not to arrest her.
The officer’s harsh treatment of the woman — watch it in the above video and see if you consider it “de-escalation” — violated New Haven’s stated policy of how to interact with the public, a crucial part of either building or losing trust with the public. He arrested Hellamns to make a point: He was mad. She was too close to the action in using her camera and needed to be escorted away, and she was going to pay. Don’t call it revenge or retaliation or escalation, at least in court. Call it “interfering.” (By the way, I question how police define “too close.” Sometimes it seems “too close” means “close enough to see anything.” If Hellamns had been allowed to continue taking the video, people would have learned earlier and with independent evidence that the police were engaging in trying to subdue a man who was fighting them.)
New Haven’s police chief, Dean Esserman, at the time spent days defending the officer and yelled at a reporter at length for asking about it. He finally acknowledged that the woman shouldn’t have been arrested (though he made no public statements about it). He did not take any action against the officer.
A Changing Landscape
These failures present the city with a challenge at a precarious moment. A new era of protest has begun in New Haven, as it has nationwide. In its early stages, the police have been revealed to be ill-prepared to handle it.
A couple of protests have gotten out of hand, and, especially in a Feb. 4 incident in which local cops teamed up with state cops, the cops lost control, acted violently, and falsely arrested people. The state cops were the major ones at fault there, along with a decision by protest leaders to close a state road without permission. But the city cops were caught unaware of the situation, and then joined in the alleged misbehavior. They threw an unarmed, nonviolent protester named Nathan Blair to the ground on Church Street, causing a concussion, and arrested him on charges that he has challenged in court. (Stay tuned for the trial; the police themselves are sticking by the arrest.)
The police will seek public support in coming weeks to spend money on new anti-riot equipment and training to handle protests. The continued failure to police themselves, to acknowledge mistakes, and to respect public rights will make that sale more challenging. It will be harder to convince the public that the cops don’t intend to detain us, retaliate against us, prevent us from recording their actions, that much more easily. Now more than ever top cops need to publicly acknowledge mistakes and hold officers accountable — not whitewash investigations and make excuses.
The department has been unprepared for the related civil-liberties challenge of responding quickly to revelations produced by social media and the ubiquity of cellphone cameras. That became clear in 2015 when a viral video showed an officer slammed a handcuffed 15-year-old girl to the ground near the St. Patrick’s Day Parade and sent her to the hospital. The police chief was out of the country at the time; Luiz Casanova was in charge of this matter in his stead. For a full week, as criticism mounted and demonstrators protested and basic questions remained unanswered, not a single top cop came forward to address the public, provide basic information to the press, or meet with the family or concerned citizens. Instead top brass hid from the community. Never mind “community policing.” That’s police community relations 101 for the modern era.
A free press is one of the last bulwarks against threats to public freedoms. It is one of the civic institutions able to hold government power accountable. People in New Haven are upset that a new U.S. president has threatened to retaliate against reporters and protesters and turn the clock back on civil rights and civil liberties. People in New Haven hold marches against that. Meanwhile their own police department is already doing what Donald Trump is promising to do. We no longer have a U.S. Justice Department Civil Rights Division promising to hold local police departments accountable for mistreating its citizens.
With the whitewash of the IA report, Assistant Chief Casanova has limited Interim Chief Anthony Campbell’s options for tackling this problem. He has handed Campbell, his rival for the permanent chief’s position, a metaphorical meal best described in a classic scene in the television series The Wire.
Thanks to this report, if Campbell were to seek to reprimand or suspend Dominguez or other officers, he’d face potential legal problems — because his own department’s IA investigation cleared them. He’d also face a revolt from the rank and file.
But if he takes no action, he reinforces a dangerous message of unaccountability, of a department that has declared war on reporters and protesters and given up any pretense of true community policing. Like his predecessors, he would de facto bless these kinds of retaliatory, trumped-up arrests and blatant defiance by a supervisor of a general order.
This moment presents a test of his leadership. He needs to deliver a clear message to his cops and to the public that it does not condone the kind of behavior Sgt. Dominguez and her officers engaged in on Dec. 6.
A Prayer & A Promise
I pray that our police department’s leaders can find their way. That the police department can learn to police itself. That it can gain our trust. For the beat cops’ sake. And for our sake.
We still have a force full of dedicated, caring, talented officers who want to prevent and solve crimes. It’s not their fault that successive administrations at 1 Union Ave. have let them, and us, down. Let’s stop pretending we’re different from other cities, that our police brass trains and holds its officers accountable for an approach called “community policing.” We have for years had true community policing in word only in New Haven, not in deed. We tried to revive it in recent years, but a compromised chief’s personal misbehavior prevented him from enforcing it. The military mindset beat back efforts at reform. We have an army, not a community police force. They catch crooks. Period. Don’t dare question their actions or their approach. That’s “arrogance.” That’s not “letting them do their job.” And if the soldiers believe you are looking at them the wrong way, you will pay. They won’t.
Without the expectations contained in the “community policing” moniker, maybe we can just appreciate the hard work our officers do every day, risking their lives in the course of their jobs, and hold their bosses accountable for insisting that officers follow the law and the department’s own rules. Maybe we can forever bury the “community policing” label and explore an alternative suggested in the 2013 mayoral campaign: “legitimacy policing.” If we have an army, let’s at least make it an army that must respond to rules and civilian control.
What we can’t do is fall for the old “let’s study this” feint. Assistant Chief Casanova has promised to review department policies in light of David’s arrest and the camera grab. He might even edit some of the policies. He spoke of more “training.” His predecessors said the same each time they failed to prepare their officers or hold them accountable for grabbing cameras or mistreated citizen protesters or camera wielders. Most recently top cops made the same promise after a mayoral task force identified the problem once more as part of a “community policing 2.0” report. The police have already rewritten this order at 1 Union Ave. They’ve held training. The problem is the top brass’s failure to enforce it.
In the meantime, maybe it’s time finally to constitute the Civilian Review Board that voters approved in a 2013 charter referendum. The charter now says the city should have one. Alders have spent three years “working” on it. Time to show results.
And those police body cameras the department plans to order by June 30 can’t come too soon. Experience has shown that footage from those cameras often exonerates unfairly accused cops (as in the above video captured in Branford). It can also reveal deadly cases of misconduct that otherwise would never come to light.
Despite the sanctioned misconduct and abuse of power by the New Haven Police Department, we at the Independent will continue to do our job. For years officers have threatened us with arrest for photographing them in action. (In one case an officer actually stood by our reporter until he obeyed an order to delete shots from his camera. I’ve been personally threatened several times.) Their intimidation tactics will never succeed. Politely, respectfully, we will continue watching and recording and reporting their actions — their daily victories, and their occasional mistakes.