A criminal defense attorney is accusing officials of “foot-dragging” on a legal promise to better protect the rights of citizens who video-record the police in public.
At issue is General Order 311, which instructs cops not to arrest or harass citizens for using their cellphones to record their actions in public.
The attorney, Diane Polan, negotiated two settlements last year with the city of lawsuits brought by citizens who were arrested for taking cellphone videos of police in public. The city agreed to pay the two citizens a total of $31,500.
The city also made these promises in the first settlement, dated Feb. 24, 2014:
• “The City of New Haven recognizes the right of citizens to film the police conducting their duties so long as they do not interfere with the performance of those duties, as set forth in General Order 311 as revised on March 1, 2011. The City shall also have the General Order 311 read aloud at ‘line-up’ for a period of ten (10) days.
• “The City of New Haven shall also have General Order 311 distributed to all new New Haven police officers and shall incorporate instruction regarding General Order 311 as part of both initial training and periodic in-service training for all officers.”
Meanwhile, Police Chief Dean Esserman declared in 2012 that he couldn’t punish a cop for blatantly violating that order because the order’s wording is too “vague.” He vowed to rewrite the order.
Markeshia Ricks Photo
Almost two years later, the city has not yet rewritten the order, according to Assistant Chief Al Vazquez (pictured), who oversees internal affairs and department values and ethics.
He said the department did read the order aloud for 10 days at line-up last year after the settlement’s signing. He said he has no record of it being read at line-up since or of the order being incorporated yet into initial or in-service training.
That’s because the department is in the process of rewriting some 160 general orders, Vazquez said. That includes General Order 311.The process should take about a year, at which point all officers will be trained in the updated rules, Vazquez said.
“That is total foot-dragging,” argued attorney Polan. “They’re using the need to rewrite their general orders as an excuse to do nothing.”
“It’s a complete violation of the letter and the spirit of that stipulated agreement. It was never an expectation that they would delay making training on the general order” a regular part of in-service or academy training, Polan said. “They should be including it now and when they rewrite the orders they should change the training.
“By not rewriting the policy, he continues to have a police policy that he says is too vague to result in any discipline. So it’s the equivalent of having no policy at all.”
Polan pointed to the role that a citizen video played in North Charleston, S.C., leading to an officer being arrested for shooting dead an unarmed fleeing man. Citizen videos are playing an increasing role nationwide in holding cops accountable for misconduct. A citizen video in New Haven brought to attention the March 15 arrest of a 15-year-old girl who was slammed to the ground while in handcuffs. An internal investigation cleared the officer of wrongdoing, but Chief Esserman claimed the department will train its officers to employ alternative techniques in such arrests.
“Look at what a difference it makes for people to be able to videotape executions by the police,” Polan said of the South Carolina incident. “Otherwise what the cop said” would have been accepted. She said citizen video is making “an enormous difference in monitoring police; we need to protect that.”
Vazquez responded that the department has been working hard on rewriting the general orders, including General Order 311. He said the department has made the message clear to all officers: “It’s a simple two-page policy that basically says you can’t arrest a guy just because he’s filming you.” The act of filming cannot be construed as a form of “interfering” with policing.
Barring “exigent” circumstances — a documentable fear that the citizen might destroy evidence needed to prove a serious crime — an officer may not seize a video, Vazquez said. He said the officer may ask the citizen for the video; if the citizen refuses, the officer can apply for a search warrant (during which time the citizen would have a chance to save and copy the video).
An Order Is Born
Thomas MacMillan File Photo
The General Order was born in the wake of the arrest of Luis Luna in the early morning hours of Sept. 25, 2010.
Luna (pictured) was riding his bike on College Street when he saw cops breaking up a fight. He took out his iPhone and started video-recording. Then-Assistant Chief Ariel Melendez was on the scene. He ordered Luna to stop recording, then ordered him arrested for “interfering” with the arrest.” He had Luna’s phone seized.
It was the latest in a series of incidents in which cops interfering with citizens’ rights to record their actions.
After the Luna story was reported (here), an internal investigation commenced. It found that Melendez had ordered an officer to erase Luna’s video. The report found that Melendez had violated department policy by both ordering the arrest and by ordering the erasure of the video. Melendez, meanwhile, retired with a $124,500 annual pension.
Then-Chief Frank Limon had a new general order written to make clear to cops that they shouldn’t stop people from video-recording their actions.
“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,” reads the directive, General Order 311. “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.” (Read the full text here.) Top cops spread the word to the rank and file, as in this visit to the police academy.
Order Proves Toothless
Tamara Harris Photo
Not everyone got the memo.
On June 12, 2012, a raucous scene broke out on the Temple Street Plaza as the bars let out. As Sgt. Chris Rubino, a cop with a history of internal affairs investigations for mistreating citizens, arrested one man making trouble, a woman named Jennifer Gondola whipped out her iPhone4. She recorded as Rubino and a fellow officer (who later cost the city $130,000 in another video-recorded arrest) slammed the man to the ground, handcuffed him, and then subdued him.
Rubino ordered Gondola to hand over her phone. She refused and slipped the phone into her bra. Rubino ordered her arrested—and her phone removed by a female officer. (See video at the top of the story.)
Two days later the Independent published a photo taken by another citizen-photographer, showing Rubino, who’s white, with his boot on the handcuffed black suspect’s neck. Both the police department and the FBI ordered investigations.
The feds did not pursue charges against Rubino. But the police internal investigation found that he had used excessive force and violated department rules by standing on the handcuffed suspect’s neck. Chief Esserman suspended Rubino for 15 days. (Rubino has since retired.)
Esserman did not, however, punish Rubino for arresting Gondola and taking her phone in violation of General Order 311. He said Rubino exercised “poor judgment’ in doing so. But the investigation concluded that General Order 311 contains too many loopholes to justify punishing Rubino for violating it. The general counsel of the National Press Photographers Association advised the New Haven cops during the investigation that that the order’s ““overly broad and vague” language “leaves far too much unbridled discretion, which may have in turn led to this incident,”
Calling the camera-grab and arrest “lawful but awful,” Esserman promised to rewrite the department’s policy on cameras to protect citizens’ rights to record the actions of police in public.
Today that policy remains un-rewritten. Assistant Chief Vazquez said the department has made clear to officers what the policy means.
Independent Action
Paul Bass Photo
Polan with Gondola outside court after dismissal of her “interfering” charge.
Jennifer Gondola fought back against the cops, in court. She hired criminal defense attorney Diane Polan to sue the city for violating her rights.
The city settled that case in May 2014, agreeing to pay Gondola $13,000. (Click here to read the settlement.)
Luna, too, hired Polan and fought back in court. The city settled his lawsuit on Feb. 24, 2014. It agreed to pay Luna $18,500.
In the stipulated agreement — read it here—the city also reiterated its recognition of “the right of citizens to film the police conducting their duties so long as they do not interfere with the performance of those duties, as set forth in General Order 311.” The city promised that clear through “both initial training and periodic in-service training for all officers.” That’s the promise that Polan accuses the cops of “dragging their feet” on two years later, and that Vazquez says the department continues to work diligently on carrying out.
Police Union President Louis Cavaliere Jr. said last week that he is not aware of any specialized training having taken place recently about the order.
Meanwhile, as with the spread of cellphone video, technology may be stepping in to provide citizens with the tools to bypass barriers to holding police accountable. As reported in this New York Times article, a Toronto developer has created an iPhone app called Cop Watch that enables a citizen to send a video directly to Youtube while recording police in action. The New York Civil Liberties Union has developed a similar “Stop and Frisk Watch” app to obtain instant video — before officers can grab a citizen’s camera on the pretense of “preserving” crucial evidence or stopping someone from “interfering” with an arrest.
Waiting to hear what the pro police people have to say on this.
Anywhere, anytime ordinary people are given the chance to choose, the choice is the same: freedom, not tyranny; democracy, not dictatorship; the rule of law, not the rule of the police.