The police have investigated an officer who arrested a reporter and a supervisor who seized his camera at the scene of a feared explosive device — and concluded their actions were justified.
That was the finding of an internal affairs investigation into the Dec. 6 arrest of New Haven Independent reporter David Sepulveda at a crime scene at Whalley Avenue and Harrison Street in Westville on misdemeanor charges of interfering with police and third-degree trespassing, which carry penalties of up to a year in prison.
The report was completed last week and presented to the Board of Police Commissioners. The police released a copy to the Independent in response to a Connecticut Freedom of Information Act request. Chief Anthony Campbell requested the investigation following publication of a news report on the arrest.
Assistant Chief Luiz Casanova, who oversees internal affairs, said he stands by the findings and conclusions of the report.
The original incident prompted statewide criticism from free-press advocates who accused the police of a dangerous overreaction. This report — and the conclusions embraced by Casanova — constitute the department’s official response. The release of the report is the latest chapter in a seven-year saga of controversies involving the police department’s handling of citizens’ cameras. It is also part of an ongoing discussion in New Haven these days about “de-escalation” and about civil liberties and police accountability.
The report fleshes out what police originally stated in arresting Sepulveda as he took pictures from across the street of two abandoned pressure cookers near a neighborhood public library branch: That Sepulveda was standing in a taped-off area without permission, shooting photos
And that he then failed to respond quickly enough to officers who risked their lives by rushing to pull him away from what was feared to be explosive devices similar to those that massacred a crowd at the Boston Marathon.
(Unbeknownst to the cops at the time, the cookers turned out to be harmless. A member of the nearby New Haven Korean United Methodist Church had pitched the cookers into a Dumpster, but then someone, possibly hoping to sell them from scraps, abandoned them on the sidewalk when a bus driver said they couldn’t be brought on board.)
Sepulveda said he complied with officers’ orders as soon as he heard them, and that he entered the area without crossing police tape and with the consent of a cop. At the time of the incident, police had not taped off the entrance to the block from Whalley and Harrison Street. (The fire department, which noticed the lack of tape, did later put some up, according to a finding in the report.)
Officers handcuffed Sepulveda, confined him to a cruiser for a half hour, and set his belongings aside at the cruiser. The neighborhood’s then top cop, Sgt. Renee Dominguez, seized his Canon 7D camera and sought to obtain his memory card. She walked up and down the block with the camera with the stated intent of using it as evidence of his crime until a supervisor instructed her to return it to Sepulveda.
The internal affairs report concludes that under department General Order 4.10, entitled “Citizen’s Right to Video,” which the department rewrote and promised to explain to the rank and file following a series of controversial cases of police camera-grabbing, “recording equipment may not be confiscated.” An exception is for a serious crime, posing potential immediate physical harm.
The report quotes Dominguez telling internal affairs investigators that she found Sepulveda’s behavior “arrogant and disrespectful.” Asked why she took the camera, she stated that 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.”
Her supervisor at the scene, Lt. Nick Marcucio, corroborated Dominguez’s stated intention to the internal affairs investigators: “Sergeant Dominguez verbalized to him that the photos can be of evidentiary value for the crimes that was being charged with which would show that he was within the perimeter. It would also prove that he ignored the perimeter and the commands given to him.”
“Mr. Sepulveda’s charges were misdemeanor offenses and there was no real necessity to view the photos in the camera,” the report proceeds to state.
But it offers two subsequent reasons that Dominguez nevertheless did not violate the policy. One reason: She could have had reason to seek photos of the feared incendiary device itself. Secondly, at Marcucio’s command, she proceeded to ask Sepulveda for permission to view his photos. She asked that permission while he was handcuffed inside the cruiser. First she asked for a copy of his memory card; he shook his head no at that request, but consented to her viewing the photos.
“Since she asked for consent to view the photographs, and returned the camera to him when he was released from police custody, her actions fail to rise to the level of officer misconduct. But, given the totality of the circumstances and the type of incident being bomb scare/suspicious devices can be construed as a serious incident or serious investigation. Therefore, Sergeant Dominguez is exonerated of any and all allegations that she violated either the law or the rules and regulations of the Department,” the investigators wrote.
Sepulveda’s criminal case is still pending in Superior Court.
[Note: This reporter was interviewed as part of the IA investigation and observed firsthand that police had not taped off Harrison Street. Click here for an opinion article with another take on the incident and the new report.]
The report also supported the actions of the arresting officer, Christopher Landucci, agreeing with his assessment that the entire area had been cordoned off and therefore Sepulveda knew he was trespassing, an allegation he denies.
“Mr. Sepulveda clearly endangered the lives of responding bomb technicians when he entered the hot zone,” the report concludes. “Detective [Rosa] Melendez had to divert her attention from the potential explosives and lift up the shield on her helmet to give him verbal commands to leave the scene. When Mr. Sepulveda failed to comply with her orders, Officer [Edward] Dunford had to enter the hot zone, without any protective gear, to remove him.”
“Officer Landucci is exonerated of any and all allegations that his arrest of Mr. Sepulveda was inappropriate, because the act was lawful, justified and proper.”
In addition to previously reported statements by patrol officers at the scene, the internal affairs report quotes members of the bomb squad stating that Sepulveda’s presence slowed down their ability to respond to what could have been a life-threatening situation. Officer Edward Dunford and Detective Rosa Melendez of the squad described spotting Sepulveda in the “hot zone” (within 300 feet of the cookers) and yelling at him to leave.
They stated that he told them to “relax” or “chill out” and kept taking pictures before Dunford “intercepted” him. (Sepulveda says he remarked “calm down,” because they were yelling at him and he wanted them to know he was complying and leaving the scene.) The officers reported that they felt that Sepulveda not only risked his and their lives, but impeded their ability to address a dangerous situation.
Several statements in the report contradict a fact alleged in the original report by the arresting officer. That original report stated that after officers detained Sepulveda in the cruiser a block from the scene of the arrest, “[I]t was later revealed Sepulveda was a member of the press.” Dunford is quoted in the internal affairs report as stating that Sepulveda in fact immediately “told him that he a was member the press and the area.” Dominguez is quoted as saying that when Sepulveda was initially detained, “she assumed that he was a reporter when she saw his ID hanging around his neck.”
The report includes a new dispute of facts. Sepulveda reported that he encountered an officer on Harrison Street en route to photographing the devices. He said he identified himself as a reporter there to photograph the devices and chatted with the officer, who subsequently pointed him to the pressure cookers and allowed him to proceed. He named the officer. The internal affairs investigators interviewed the officer, who indeed confirmed he was present on Harrison Street.
That officer’s presence — along with a cruiser, midway down the block — was never mentioned in any police report before now. The officer told internal affairs he spoke with “several individuals” but “could not remember if he had spoken with Sepulveda.” He was specifically asked “if he spoke with a male who identified himself as a reporter attempting to take photographs of the crime scene.” The officer responded that “he could not recall.” He said he did not allow anyone to walk toward the pressure cooker.
The report does not explore the question of how, if the officer was indeed there, Sepulveda would have been able to walk by without the officer noticing. Or how Sepulveda would have obtained the officer’s name in the first place, if they hadn’t had the conversation. The report does quote the officer saying he saw “an individual suddenly appear” down the street at the pressure cookers with a camera.
Casanova Stands By IA, Dominguez
Asked Friday about the report, Police Chief Anthony Campbell said he hadn’t yet read it.
He was asked about what message the public should take from the findings.
“We’re living in a political climate where people have a great deal of fear. Our goal as the NHPD is the complete reduction of that fear and partnerships,” he responded. “We will not be seizing reporters’ cameras. We will not be seizing cameras of the general population. We will be looking at many of our policies to see what changes and what training need to go into effect to see incidents where personal property is taken is limited to the most extreme situations.”
Assistant Police Chief Casanova, who oversees internal affairs, defended the report’s findings. He said the fact that the fire department put up tape on Harrison Street proves the reporter was trespassing. In fact, the report quotes fire Lt. Jose Osorio confirming that pedestrians were “walking back and forth on Harrison Street,” so he “took the initiative to place yellow tape” mid-way down the block.
Casanova said that the “totality” of the highly-charged nature of the incident elevated Dominguez’s decision to seize the camera above the stated misdemeanor charge.
“When we looked at the entire investigation, it was classified as a serious crime. She asked for the consent. She got it,” Casanova argued.
Asked if police should handcuff and confine and bring criminal “interfering” charges against a reporter based on a disagreement over whether he instantly obeys a command to leave a scene or does so seconds later, Casanova responded that he stands by the internal affairs report.
He was asked if “asking for” and “obtaining consent” can include returning a seized camera to a handcuffed suspect locked in a police car for half an hour and facing criminal charges, then requesting to remove a memory card and then to see photos.
Casanova said he has asked internal affairs to recommend two policy changes in light of this incident. One would require that officers obtain written authorization, not just oral consent, to look at photos on someone’s cameras. The other would require that a “disinterested supervisor” — one not present at the scene of the original alleged crime — decided whether or not a camera may be seized.
“Our policies are not perfect. When we identify when there is a possible flaw in the policy, we recognize whatever we can do to fix it,” Casanova said. “What we learned as an organization after this incident, we need to tighten things up sometimes.”
First, Fourth Amendment Concerns
After Sepulveda’s arrest this past December, the Connecticut Council on Freedom of Information issued a statement saying it “raises serious questions about whether the New Haven Police Department takes these constitutional and statutory rights seriously. We respectfully urge the New Haven Police Department to evaluate its handling of the incident in question and to publicly affirm its commitment to protecting cherished First Amendment rights, including those of working journalists.” The Connecticut Society for Professional Journalists also issued a statement proclaiming it was “deeply disappointed” in the arrest.
Mickey Osterreicher, general counsel for the National Press Photographers Association, has helped departments in Georgia and Arizona develop protocols for dealing with journalists and with cameras. He has helped train police departments in Philadelphia and other cities on the issue. He currently services on an advisory committee to the International Association of Chiefs of Police reviewing public recording of police.
Police are within their rights to hold onto people’s property while they’re under arrest, Osterreicher said at the time of Sepulveda’s arrest. What concerns him is that while Sepulveda’s other belongings were kept at the site, a sergeant took the camera and walked around with it. Osterreicher said that under Fourth Amendment search and seizure protections, the police did not have the right to look at photos or handle the camera without a warrant.
“I would question their motives. When you secure any property, OK take the camera, put it in the trunk, lock the trunk. Walking up and down the street with the camera in your hand — what would happen if they dropped or damaged it? That’s not securing anything. It’s doing the opposite of that. What was the purpose of walking down the street with the camera? If the guy is in the back of the cruiser, then you would lock the camera in the trunk of that same cruiser.”
He also questioned the sergeant’s request for the memory card, and then to have Sepulveda show her his photos on the camera, while he was still handcuffed and in detention.
“There’s some coercion to that consent. It’s not absolutely voluntary as far as I’m concerned when somebody is being held in handcuffs,” Osterreicher said. There was an implied “condition” that returning the camera could hinge on showing the photos.
Osterreicher also disputed the argument that police can seize a camera from a reporter without a warrant because photos from the camera might help prove that a misdemeanor had been committed. The three-prong “exigent circumstance” test established by the courts for such seizures requires that there be probable cause that a “serious crime” — i.e., a felony, not a misdemeanor — has been committed, that the officer has a “good faith belief” that the camera contains evidence of that crime, and that the officer also has “a good faith belief that absent the seizure, that evidence will be lost or destroyed.”
All three conditions must be satisfied, he said. Under no circumstances would “interfering” or “trespassing” misdemeanors be considered “serious crimes,” he continued. And case law has held that in dealing with reporters, as opposed to civilians, there’s not a “good faith belief” that photos will be destroyed: “A case involving a journalist whose sole reason of being present is to gather, document and disseminate news — the likelihood of a journalist losing or destroying the image he took is pretty low.” But even after such a seizure a warrant would still be required for officers to search the device.