Cops Criticized On Citizen-Video Order

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 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.

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Comments

posted by: THREEFIFTHS on April 13, 2015  2:56pm

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.

posted by: nero on April 13, 2015  7:50pm

Good cops enforcing the law and obeying the law have nothing to fear from citizens’ video clips. It’s part and parcel of a free press and a constitutional right—necessary to maintain our freedom from a police state. The Constitution cannot be trampled without severe consequences. Officers violating citizens’ right to videotape in public should be suspended. If an offending officer is officially found in violation, he or she should be fired, arrested, charged criminally and punished if found guilty. General Order 311 should be placed in statute and given some teeth to ensure that police officers take it seriously.

posted by: HewNaven on April 13, 2015  8:03pm

Livestream still works for getting video directly to the web before it can be erased.

https://livestream.com

posted by: Trustme on April 13, 2015  8:26pm

I guess that’s me 3/5’s. Sgt. was wrong PERIOD. 3/5’s you would’ve done a way better job, dealing with disorderly club patrons who want to fight anyone and everyone during club let out. Don’t make it sound like the arrestee was completely innocent.

posted by: BalancedJustice on April 13, 2015  9:40pm

CT citizens have a right to record police in the public execution of their duties.
Citizens do not have a right to interfere with police in the execution of those duties.
This is true whether Dean Esserman rewrites General Order 311 policy or not.  Maybe $31,500 wasn’t enough; the City wants to have to pay out more; no doubt it will need to do so soon.
The police have No Right to Seize Someone’s Phone if that person is video-recording from a distance where he or she is not hindering police activities. 
What is reported in this NHI article is the height of arrogance on the part of the police chief, and another way to circumvent the law while some of his officers brutalize some citizens and intimidate others.  The question is – why is he allowed to do this without being held accountable? 
Who runs the City of New Haven, Dean Esserman or the Mayor?
Since it takes years for the NHPD to get its legal priorities straight, why hasn’t the Mayor instructed the NHPD to rewrite the policy so that General Order 311, with its correct wording, can be put in place without further delay?  This is an abuse of power on the part of chief Esserman. NH police officers need to be in compliance with CT law, and citizens should not have to fear being brutalized, threatened or intimidated.  By not rewriting Order 311 so that the wording is clear and specific the chief is violating a legal agreement and using the delay as an excuse for his officers NOT to obey overall CT law.  Are we to understand that the NHPD has been given tacit approval to brutalize and intimidate citizens? General Order 311 cannot be distributed unless it is in writing.  This is also a way to tell citizens: don’t trust the City to keep its commitments.
• “The City of New Haven shall also have General Order 311 distributed to all 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.”

posted by: nero on April 14, 2015  1:11am

Why is suspended insufficient punishment? Because if a cop is seriously abusing his authority and someone videotapes it, he might well decide that risking suspension and destroying the evidence is preferable to facing the consequences of his actions.

posted by: Bradley on April 14, 2015  7:41am

Presumably, several other General Orders are unclear or out of date. Has the NHPD stopped providing training on them while they are being revised?

posted by: THREEFIFTHS on April 14, 2015  8:23am

posted by: Trustme on April 13, 2015 8:26pm

I guess that’s me 3/5’s. Sgt. was wrong PERIOD. 3/5’s you would’ve done a way better job, dealing with disorderly club patrons who want to fight anyone and everyone during club let out. Don’t make it sound like the arrestee was completely innocent.

This is about rights of citizens who video-record the police in public. Do You agree with that.This police are out of control.Every day they have shot or beat some one up.In fact I saw on TV you pro police people say the murder of Walter Scott by Officer Michael Slager was justified in shooting him and are taking up donations for him.Plan on sending him any money?

posted by: iamhe on April 14, 2015  8:41am

The world of policing has changed.. portable, computerized, wireless, cameras are everywhere. One can see and say, everyone with a cell phone has this capability…

We are the eyes and ears of our society of our people, of humanity.

Only something evil would blind and deafen us.

I recommend every citizen record every police citizen contact the more the better, And the police department gets use to it. In this way we can police the police by providing recorded facts.

If the police “are not doing anything wrong they have nothing to fear.”

Let them demonstrate good police conduct for all of us to see.

And when they don’t we must push it all the way through the court system or know the reason why.

It is appropriate that citizens provide the last checks and balances, the last bit of social consciousness and conscience on the conduct of law enforcement.

I also suggest that the police make public their training program and specific content on rules limitations laws concerning when an agent makes contact with a citizen.

posted by: Trustme on April 14, 2015  10:47am

Once again feeding into the negative publicity the media throughout the country is throwing at us. The difference between you and me is that I have NO issue saying an officer was wrong, Ofc. Slager was 100% WRONG, and I can’t defend his actions and I hope he pays the price. Remember 3/5’s, there are approximately 700,000 cops in this country with millions interactions daily with the public, something is going to go wrong. But you only point out the evil, bad, and ugly and never the good and great things the police ever do.

posted by: cunningham on April 14, 2015  12:54pm

“there are approximately 700,000 cops in this country with millions interactions daily with the public, something is going to go wrong. But you only point out the evil, bad, and ugly and never the good and great things the police ever do.”

And how come the media only reports on planes when they crash? Thousands of flights land safely every day, and yet the media insists on a consistent pattern of slander against the air travel industry.

posted by: THREEFIFTHS on April 14, 2015  5:09pm

posted by: Trustme on April 14, 2015 10:47am

Once again feeding into the negative publicity the media throughout the country is throwing at us. The difference between you and me is that I have NO issue saying an officer was wrong, Ofc. Slager was 100% WRONG, and I can’t defend his actions and I hope he pays the price.

The problem is that Police are Rarely Criminally Charged for On-Duty Shootings.

New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.

“It’s very rare that an officer gets charged with a homicide offense resulting from their on-duty conduct even though people are killed on a fairly regular basis,” said Philip Stinson, an assistant professor of criminal justice at Bowling Green who received a federal grant to study arrests of police officers. The study covers more than 6,700 cases of police officers arrested for any crime across all states.

http://www.msn.com/en-sg/news/other/police-rarely-criminally-charged-for-on-duty-shootings/ar-BBfG0ab


As long as those who enforce the laws are exempt from them there will forever be injustices.

Remember 3/5’s, there are approximately 700,000 cops in this country with millions interactions daily with the public, something is going to go wrong. But you only point out the evil, bad, and ugly and never the good and great things the police ever do.

My question to you is why does Data show that People of color are always the Major when something is going to go wrong when the police show up.

The NYPD Has A Long History Of Killing Unarmed Black Men

http://www.huffingtonpost.com/2014/07/18/killed-by-the-nypd-black-men_n_5600045.html

posted by: Trustme on April 14, 2015  6:59pm

A white man recently died in Brandford, after being tased. We heard it once and that was it. It’s not news when it’s white on white or black against black, it’s news only where there can be controversy. When cops stop trying and crime starts going up, what happens then?

posted by: THREEFIFTHS on April 14, 2015  8:19pm

posted by: Trustme on April 14, 2015 6:59pm

A white man recently died in Brandford, after being tased. We heard it once and that was it. It’s not news when it’s white on white or black against black, it’s news only where there can be controversy. When cops stop trying and crime starts going up, what happens then

So how come the white community of Brandford did not hold a protest?

posted by: KatieP on April 15, 2015  6:54am

Really, Trustme?  “When cops stop trying”?

I see cops in their cruisers, on their personal phones, all the time.  Every day, all the time.  I see people run red lights with a cop at the intersection, and the cops do NOTHING.  I see cops retiring with $125,00 pensions after committing offenses that would get anyone else fired without any kind of severance.

Maybe when cops stop being the bullies of the municipal workforce, people will stop being so critical.

posted by: independentuser on April 19, 2015  12:22am

This lady wasn’t just filming the police, she was screaming at them which is my opinion interfering with them. If you want to film the police, and I think you have a right to, back up to a safe distance and shut your mouth. The cop should have known better than to make the filming the issue and he should be suspended or fired for it. The police are here to uphold the law, serve and protect and not to intimidate citiens and violate their rights. However he shold have warned her that she was interfering by yelling and standing to close. It amazes me how certain people think they can treat cops like that and get away with it.

posted by: iamhe on April 20, 2015  3:32pm

“She was screaming at them which is my opinion interfering with them” -the police.

screaming is a natural human reaction and is covered by the Constitutionally protected first amendment, Right to Free Speech.

your opinion is the way you would like it to be, not the way it is.

posted by: iamhe on April 20, 2015  3:44pm

“standing to close”...... is completely subjective… people stand at different distances from each other.. the territorial imperative.

if the cop says to stand back.. than stand back.. but if he says nothing, and there are no signs, or tape…... he can arbitrarily -subjectively-claim you are interfering? by standing to close… and take your camera, and or arrest you?  no no no.. cops do not have that power, nor should they.

with such arbitrary subjective power they can grab anyone’s phone, camera, and invade our privacy..

This is not a police state.