The 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
The 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.
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.”