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IA: Top Cop Trampled Citizen’s Rights

by Paul Bass and Thomas MacMillan | Mar 3, 2011 5:32 pm

(24) Comments | Commenting has been closed | E-mail the Author

Posted to: Legal Writes

Thomas MacMillan PhotoThe lawyer for a citizen arrested for video-recording cops claimed “vindication” Thursday from a new internal affairs report that may offer ammunition for a lawsuit against the city.

The report, by the police department’s internal affairs unit, found that then-Assistant Chief Ariel Melendez not only broke department policy when he ordered the citizen, Luis Luna, arrested early in the morning of Sept. 25 for taking a video of cops making an arrest. He also broke policy by ordering one of his officers to take away Luna’s camera and erase the video he had recorded.

Read the report here.

“The report is a complete vindication of my client,” Luna’s attorney, Diane Polan, said in an interview Thursday. “It shows that the police clearly acted illegally. Melendez acted illegally. It also shows that the city is responsible because of their failure to train at the highest levels as to what is lawful and what is a violation of the First Amendment.

“If the assistant chief doesn’t know what the policy is, who underneath him doesn’t know?”

Polan said her client hasn’t yet decided whether to file a suit; first he needs to have his name cleared in court of charges that he “interfered with police.”

“We’re certainly considering litigation against both Melendez and the police department,” Polan said.

The Independent first reported on Luna’s arrest last November. Police Chief Frank Limon responded by ordering the internal affairs investigation, which is now complete; and by drawing up a new general order instructing his cops that citizens have a legal right to record them, that video-recording never constitutes “interference.” And New Haven State Sen. Martin Looney introduced a state bill specifically giving citizens an additional basis to sue cops like Melendez for such arrests.

Meanwhile, Melendez handed in his resignation in January and will receive a $124,500 annual pension. At the time he was at the center of internal investigations into three separate incidents: This incident with Luna; a police raid at Club Elevate, about which the department released a separate internal affairs report Thursday (read about that here); and a collision between a car he was driving and a pedestrian. The pedestrian’s family has notified the police that it might sue the department over how it investigated that incident.

Melendez has declined to discuss these incidents with the Independent despite repeated attempts over the past few months.

After a press conference Thursday about the release of the two internal affairs reports,  Limon was asked about whether the Luna investigation provides a basis for suing the department and not just Melendez, as suggested by Polan.

“No comment,” he said.

“I’d have to look at the case closer,” Police Commissioners Chairman Richard Epstein responded to the same question.

“I’m happy to see that internal affairs found him guilty,” Luna said in a phone conversation. “From the very beginning, it was clear that he trampled my First Amendment rights.”

The findings will help “protect people’s rights to videotape police in the public sphere,” Luna said.

“I feel vindicated.”

Rogue Asst. Chief

Thomas MacMillan PhotoThe 12-page internal affairs report released Thursday was written by Sgt. Nicholas Marcucio, who conducted the investigation. Marcucio interviewed 13 different cops who had some connection to the events of Sept. 25. He also interviewed Luna with attorney Polan present. (At one point during that interview, according to the report, Marcucio asked Luna about his affiliation with a political group that monitors police misconduct. Polan “stated she did not understand why his political affiliation has any bearing on the investigation,” Marcucio wrote. “I did not pursue that line of questioning any further in fear that the interview would be abruptly stopped.”)

Marcucio found that Melendez had directly ordered Luna’s arrest simply because he was videotaping police arresting three people who had refused to leave the area around College and Crown streets as the bars were letting out and a fight had broken out.

Luna was riding his bike past the area at the time around 1:50 a.m. He was on his way from a visit from Anna LIffey’s bar on Whitney Avenue to Mamoun’s on Howe Street. He stopped to record the action on the street. He stayed some 15 feet away.

Melendez approached Luna in an “intimidating” manner and told him to stop recording and to scram, according to the report. “Mr. Luna stopped filming and A.C. Melendez grabbed the phone from him and put it in his pocket. Mr. Luna stated he was not given a chance to leave.”

After Luna was taken to jail, Melendez walked over to a command post the cops had set up in the entertainment district as part of a crackdown called “Operation Nightlife.”

According to the internal affairs report, he handed Luna’s iPhone to Officer Curtis Miller, who was at the command post. He didn’t tell Miller whose phone it was.

“I need to delete a video. Delete this video,” Melendez told Miller, according to the report. He didn’t say why. Miller followed the order.

The internal affairs report concluded that Melendez violated Rule 15, Article 42.:

“No employee of the Department shall engage in an any act which would constitute conduct unbecoming an officer.”

The report states that Melendez was wrong both to arrest Luna and to erase his video:

“During my interview with Mr. Luna he stated A.C. Melendez took his phone away from him because he was filming police officers, and he was subsequently arrested. During my interviews with Capt. Peterson and Ofc. Curtis Miller they stated A.C. Melendez brought a phone back to the Command Post and ordered Ofc. Curtis Miller to delete video from it. A.C. Melendez knew the phone belonged to an arrestee but did not inform Ofc. Miller and Captain [Joann] Peterson of this until after the video was deleted. Thus, A.C. Melendez’s order for Ofc. Miller to erase the video was unlawful.

“The mere act of an individual recording the police officers while performing their duties is not prohibited by Federal or State Statute. The officer must be able to clearly articulate why an individual was arrested for filming. The New Haven Police Department has adopted a ‘Video Recording of Police Activity by the Public’ Policy. It is currently under legal review.”

Otherwise, the report spares all the cops connected with the incident, putting the blame squarely on Melendez’s shoulders.

Paul Bass Photo For instance, Luna himself offered no objection to the way Officer Kristen Fitzgerald acted when she followed the order to arrest him.

FItzgerald told Marcucio she had noticed Luna taking photos with his iPhone from 15 feet away. She didn’t think twice about him because, she told Marcucio, “[h]e was not saying anything [and] did not pose a threat.” She returned to dealing with breaking up the fight. Later, Melendez ordered her to arrest Luna. She said he was “compliant” as she “placed him in handcuffs, patted him down, and walked him over to the prisoner conveyance van.”

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Comments

posted by: anon on March 3, 2011  5:39pm

Great article. 

But whose brilliant idea was it to guarantee taxpayer-funded pensions of $124,500 per year in a city where a typical property tax payment on a house is now higher than many people’s entire income?

posted by: Elaine Braffman on March 3, 2011  6:01pm

It doesn’t surprise me that Mr.Luna had no objections with Officer Fitzgerald. I have interacted with her on my job as a neighborhood specialist and I have always observed that while she was dealing with the public she was a true professional,a good cop and fair. I am glad she is not being lumped in with anyone who might be found that they were acting inappropriately.

posted by: Cityres on March 3, 2011  6:05pm

@anon: The Honorable (used loosely) Mayor John DeStefano.

posted by: robn on March 3, 2011  6:09pm

The obvious answer to all of this is to fire those responsible and then give them extremely generous pensions as a reward for leaving the city and enormous and embarrassing lawsuit.

posted by: Judith Lesser on March 3, 2011  6:16pm

Anon, I think you know the answer. The mayor has signed off on these contracts and now is going after the little guys in the city’s work force trying to strip them of much smaller reasonable pensions with no social security, and the city workers on special funds who don’t receive pension. He is not looking at this very fairly from what I have been reading.
I also find it incredible that this chief wants to fill the vacant positions of assistant chiefs stating the norm is to have lots of administrators to run things right. Oh sure, lets just fill more pockets of administrators with the tax payers hard earned dollars. In fact the employees that live in New Haven and pay taxes are getting cut off at the knees and while that is happening they are contributing to the big shots in police and fire and other administrators. Something is wrong with this picture! I know taxpayers as myself do believe in working families and support these little guys working for the city. I think the mayor is so wrong what he is doing. I really don’t see any sacrifice coming from him or his mayoral family on the second floor.

posted by: NH Resident on March 3, 2011  7:23pm

I don’t know how this is legally feasible, but if possible please sue Melendez—not the New Haven taxpayers. It will both set a precedent of officers having to be responsible for actions they knew at the time were wrong, and place the financial burden where it belongs. I didn’t do anything wrong, so it wouldn’t be right for my taxes to go up because of this idiot Melendez. Make him pay for his own actions.

posted by: Allan Brison on March 3, 2011  7:42pm

Congrats to Luis Luna, Diane Polan, the copwatch folks who pressed this case forward, and to the New Haven Police Dept for affirming that citizens DO have a right to film their police in action.

posted by: Mike on March 3, 2011  8:33pm

Allan Brison- you said it all.

Nice. Great. So our top cops pick turned out to be “not so law abiding”, it makes me wonder about out top cop now. Is this how its done in Chicago?

posted by: @@@ on March 4, 2011  1:31am

hey Limon, CT transit wants you to come drive for them, because you are really good at driving that bus right over Melendez!

posted by: Paul Martin on March 4, 2011  8:40am

Where can I find this job where I get to carry a gun, arrest people, bully everyone, disobey littering and traffic laws, get a great salary, a fat pension, an early retirement, and no accountability?

posted by: Harry Potter on March 4, 2011  10:41am

ill give you specific examples on why cell phone use should not be tolerated during lawful detentions Mr. Smuts. Then go ahead and try to convince me that anything cant be made into a weapon.

http://www.eeshops.com/k95-tc95-stun-gun-high-power-cell-phone-stun-guns-n73-type-p-1047.html

http://www.youtube.com/watch?v=XxIjkBVEtyE

posted by: The Count on March 4, 2011  1:05pm

That man should receive a transfer immediately…to the East Haven P.D.

posted by: streever on March 4, 2011  3:13pm

Harry Potter:
How many police have been attacked with a home made stun gun, wielded by someone from 10-20 yards distance, who was pretending to tape record the police for transparency purposes?

I could make the same argument against rifles. No citizen should be allowed to use one, because they could be hiding on top of a building, and snipe a police officer.

What about cars? A motorist could turn hard, running the officer over, and killing them.

I think an officer can distinguish between someone standing 10+ yards away, video taping, and someone charging them with a hand-held weapon.

posted by: Threefifths on March 4, 2011  4:09pm

posted by: streever on March 4, 2011 3:13pm

I think an officer can distinguish between someone standing 10+ yards away, video taping, and someone charging them with a hand-held weapon.

Can you distinguish between this DUDE!!!

http://www.techeblog.com/index.php/tech-gadget/camera-that-takes-killer-snapshots

http://paradoxoff.com/files/2007/08/camera-gun.gif


http://blog.photoshelter.com/image/knarre-web.jpg

posted by: streever on March 4, 2011  4:36pm

3/5ths:
What is your point? That one could disguise a camera as a gun?

I’m certain that many things are possible: but if someone used a camera designed to resemble a gun, I would support the NHPD in arresting them.

posted by: Threefifths on March 4, 2011  5:28pm

posted by: streever on March 4, 2011 4:36pm
3/5ths:
What is your point? That one could disguise a camera as a gun?

I’m certain that many things are possible: but if someone used a camera designed to resemble a gun, I would support the NHPD in arresting them.

My point is read your statement.It speaks for it self.

I think an officer can distinguish between someone standing 10+ yards away, video taping, and someone charging them with a hand-held weapon.

Can you distinguish camera designed to resemble a gun.

posted by: streever on March 4, 2011  7:06pm

3/5th:
Can you explain what you are trying to get at?

posted by: what the? on March 4, 2011  8:35pm

‘chief’ lemon said this incident resulted from poor planning, poor decision making,poor leadership. that pretty sums up his time working in new haven. isn’t he the chief? wouldn’t he be considered the leader? doesn’t he make the final decision within the department? wasn’t he there that night this incident happenned? melendez wasn’t from chicago so he was the odd man out and the easy one to blame. hope melendez has a lawyer.

posted by: Liberte on March 5, 2011  2:15am

Aux armes citoyens! To Arms Citizen
Formez nos battalions. Form your bataillons.
Contre nous de la tyrannie. Against the tyranny.

Our arm against tyranny is the law, and when the organ of government fails us, as I believe it has in the state’s attorney, specifically in the person of Michael Dearington, changes must be made.

Vive la liberte.

posted by: Threefifths on March 5, 2011  3:46pm

posted by: streever on March 4, 2011 7:06pm
3/5th:
Can you explain what you are trying to get at?

Just like you can have a underwear bomb,You can have a camera as a gun.By the way I do think you should be able to film police actions,But it should be done in a safe way.Also what happens when a person reaches is his or her pocket to take out there camera and the officer says keep you hand in you pocket and they say I am reaching for my camera.How is the officer to know that they are not reaching for a weapon.So what is the officer to do.Can you answer that one.

posted by: Jaydee on March 5, 2011  4:32pm

His actions were simular to those used in the good old dayz, but he didn’t realize he wasn’t one of the ” good old boyz “. Now NHPD will use him as a scape goat.

posted by: Brian Parker on March 6, 2011  9:51am

Is it me or is it always all or nothing. Is it possible this cop could have been dealt a less severe penalty that being forced to resign? Why are we always looking to destroy lives?

It would be better to have him apologize publicly and explain his wrong doings. Humble him, don’t destroy his live.

I’m sure he’ll be fine, 125k plus he will have a new career; yeah he’ll be paying a lot in taxes.

posted by: anonymous on March 7, 2011  10:11pm

This is all ridiculous. Luna just wants to get paid and is looking to sue the city. Luna, Melendez is one of the most respected Lt’s in the history of the department.  One isolated incident will not tarnish his reputation. ...

posted by: Allan Brison on March 8, 2011  12:05pm

It is hard to feel sorry for someone being “forced” to resign when:

1. he was clearly way out of line, and
2. he will draw a yearly pension of more than most of us will ever make at full salary.

We taxpayers will be paying that pension perhaps for many years.

As to Luis Luna being in it only for the money, I wonder how many of you anonymous commenters even know Mr. Luna. It is pretty hard to attribute another’s motivations from a distance.

As to Melendez being one of the most respected in the history of the department, this was only one of 3 recent instances where he appears to have been out of line. I say “Good Riddance”.

I think that Melendez should have to pay whatever award Luna wins out of his pension.

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