Looney Backs Citizen Cop-Photogs

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by Thomas MacMillan | Feb 28, 2011 11:40 am

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

Posted to: Legal Writes, State

Thomas MacMillan/ Melissa Bailey File Photos As Luis Luna tries to clear his name after being arrested while videotaping police, a New Haven lawmaker is working to give people like him another tool to defend their rights.

Luna and his lawyer appeared in Connecticut Superior Court on Elm Street Friday in an attempt to clear his name of charges that he interfered with police while videotaping them with his cell phone.

New Haven police’s practice of defining photographing them in public as “interfering” has become a hot topic.

Luna (pictured), a 27-year-old from Wallingford, fell into his legal bind after a brush with former Asst. Chief Ariel Melendez on Sept. 25, 2010. Luna was using his iPhone to videotape police on College Street when Melendez arrested him. It was one of several recent incidents, two involving Melendez, in which cops took action against citizens for using cameras in public. The high-ranking cop has since retired.

Luna, who maintains his innocence, is trying to strike a guilty plea he made in the case on Oct. 8. He said the prosecutor offered him a deal to cop to a lesser plea and walk out free. Luna accepted the deal, with some confusion, and against his better judgment, he said.

He made a first attempt Friday to get a judge to vacate his guilty plea. If Luna succeeds, it would pave the way for him to sue Melendez.

Meanwhile, a state lawmaker is lending support for his cause at the Capitol.

State Sen. Martin Looney has introduced Senate Bill 788, which would amend statutes to explicitly allow civil action against police who interfere with a person’s right to photograph or videotape.

Although Luna already has the right to do so under current laws, the bill would open a new avenue for legal action. In addition to being able to sue for false arrest and make a federal claim under the First Amendment, the new law would create another basis for suing cops.

Sen. Looney said he put forward the bill in January in response to recent incidents in New Haven and East Haven, where several people have been arrested while videotaping police.

Camera Controversy

Luna is one of those people. Here’s what he said happened on Sept. 25, 2010:

It was the first night of Operation Nightlife, a crackdown on rowdy behavior in the downtown club district prompted by a shootout on Crown Street. After midnight, Luna was on his bike near the corner of Crown and College streets when he saw cops arresting three people. He pulled out his iPhone and started filming the action.

Luna, who’s from Ecuador, is part of a group called CopWatch New Haven, which organizes activism against police brutality.

When he started filming on Sept. 25, Melendez approached him, grabbed his phone, and ordered him arrested. Luna said when he got his cell phone back the next day, his video had been erased. A new picture (left) had been added, showing what appears to be police feet on a cement floor.

In response to an Independent article about the incident, the police department’s internal affairs opened an investigation. It’s ongoing.

Luna’s case is one part of a larger cops-and-cameras controversy that unfolded at the end of last year. In several incidents, police ordered people in public places to stop filming them, or even snatched cameras out of people’s hands.

Video of one of these incidents, on Sept. 10 on Crown Street, shows an officer saying, “You don’t take pictures of us,” before knocking a camera out of the hands of a man who was recording footage of an arrest and beating in progress. Click the play arrow to watch that clip.

Looney’s Legislation

Looney said the cops-and-cameras incidents prompted him to propose his legislation, which is now in front of the Joint Committee on Judiciary.

Looney said he was inspired not only by events in New Haven, but also by the experience of New Haven’s Father James Manship who was arrested two years ago in East Haven while filming police there.

The bill would help to guarantee the right of people to film police, as long as they don’t interfere, Looney said. The bill would protect people’s right to sue for damages if they are arrested while videotaping.

Although police say that filming is currently allowed, “we’ve heard of a number of incidents of people being arrested for doing just that,” he said.

“It’s important to highlight that this is not something that police should be objecting to,” Looney said. New Haven Police Chief Frank Limon, meanwhile, is finishing up a new policy specifically directing cops to respect citizens’ rights to use cameras.

Courtroom A

Luna walked into Courtroom A Friday morning with his attorney, Max Simmons.

Simmons was set to argue that the guilty plea should be vacated, partly on the grounds that the judge never advised Luna of all the ramifications of his plea. But the opposing lawyer couldn’t make it Friday, so the case was continued for one week.

As he waited in the gallery, Luna recounted what landed him in his current position. He said the last time he showed up in court, he had asked state prosecutors about securing legal representation to answer the charge of interfering with police.

“They said to look in the Yellow Pages,” Luna said. “I think they just wanted to move things along.”

The state offered to reduce the charge to creating a public disturbance, which is punishable by a $50 fine and does not appear on a criminal record. Luna accepted, in order to put the incident behind him, according to the motion to vacate prepared by his lawyer. Read the motion here.

According to the motion, Luna was still uncertain about what was happening when he stepped in front of the judge on Oct. 8. He first said he was “not guilty,” then changed his plea after another explanation of the new charge.

The judge did not advise Luna that he was giving up his right to plead not guilty, his right to remain silent, his right to a trial, and the right to confront witnesses, according to the motion. Nor did the judge inquire if Luna’s plea was the result of coercion of any kind or ask the state about the basis of the plea. Those statements and inquiries are required by the Connecticut Practice Book, according to Attorney Simmons.

Simmons said he confirmed the omissions by looking at the court transcript from that day.

If the motion to vacate is successful, “it’s essentially a do-over,” Simmons said. The interfering charge against Luna would be re-docketed as a pending case and the state could decide to pursue it as such, drop it to creating a public disturbance again, or nolle it. Simmons said he can’t predict what prosecutors would choose to do.

If Luna does succeed in having the case dismissed or nolled, Simmons said, he will be “taking a really hard look” at pursuing a civil case against Melendez or the New Haven police department. Luna could sue for false arrest and could also make a federal claim based on the First Amendment, Simmons said.

If the Looney bill were passed, and if it were made retroactive, that would create another cause of action for Luna, Simmons said.

Comments

posted by: streever on February 28, 2011 11:45am

Right on, Senator Looney!

posted by: Ellis Copeland on February 28, 2011 12:09pm

All the more reason NHPD needs to be cleaned out thoroughly. Martin Looney does, on some rare occasions, justify his election

posted by: William Kurtz on February 28, 2011 12:36pm

I applaud Senator Looney’s clear stand, but question the necessity of a law that explicitly allows people to sue for something that they already have every right to sue for. Shouldn’t blanket protections for basic civil rights be enough law under which to pursue criminal and civil action?

posted by: J on February 28, 2011 4:13pm

I am a police officer in New Haven and I welcome citizens to tape us while we are doing our jobs. It can and will benefit us. It will protect the citizens interests as well as the officers. Just understand that this is not granting you the right to be in the officers face and tape them while they are trying to conduct an investigation or an arrest. If you become a safety issue and fail to obey a lawful order by the officer while they are doing their job this will certainly lead to your arrest.

The simple fact that you are taping while you are disobeying does not grant you free reign to do what you want. If you interject yourself into a police matter you are now a person that the officer has to protect or worry about as well as the issue they are already dealing with.

posted by: streever on February 28, 2011 4:18pm

J:
Fair enough—most of us are just concerned to hear that this man was as far away as all other civilians, and was singled out by the Assistant Chief for taping. We’re also concerned because the Assistant Chief allegedly deleted his tape—which is very suspicious.

posted by: Ex-NHPD on February 28, 2011 4:32pm

Another waste of time by the Ct Legislature. To add this specific type of incident to an already existing law is completely unnecessary. Unless, you are trying to get some face time. The clowns in the state legislature constantly knee-jerk react to something and rush off to write a law. A perfect example is when they wrote a law about leaving children in a car, unattended. The State Statues of Reckless Endangerment and/or Risk of Injury to a Minor already were sufficient to deal with those incidents. But, they all got their face time as they told everyone that this law was necessary to protect the children.

What they should do is have an audit of the State Statutes to get rid of the obsolete and redundant laws that clutter the books.

posted by: streever on February 28, 2011 5:43pm

Ex-NHPD:
I actually saw a funny joke about Obama trying to save taxpayers money by eliminating pointless laws—the punchline is that the cost of scouring the law books and removing things from 1860 would set us back a century financially, at which point we’d be able to start getting rid of all the new silly laws.

posted by: Ken on February 28, 2011 7:26pm

Another issue here Ex-NHPD is, as you are aware if an incident is taped the phones and or cameras can be confiscated and placed into evidence because it now becomes part of the investigation. Also, the person taping who is now a witness will probably have to testify as to what is on the tape and where they were when it was shot etc.

How many people will now complain about their $500.00 phones being confiscated for evidence purposes because cases can take months to adjudicate.

I agree with taping all incidents because it will put an end to all the nonsense IA complaints, and put all the cop haters out of business.

posted by: Terrified on February 28, 2011 8:29pm

I smell a rat. Looney is thinking of running for Mayor again, or Johnny Boy is using him as a shill. If you live in New Haven you can’t win. Property values in East Haven will skyrocket this summer.

posted by: Ben Berkowitz on February 28, 2011 8:38pm

Great Work Senator!

posted by: Matt on March 1, 2011 5:43pm

Ken says:

“I agree with taping all incidents because it will put an end to all the nonsense IA complaints, and put all the cop haters out of business.”

I don’t like your tone.

Making sure police are following the same laws they’re supposed to be enforcing is NOT “cop hating”.

Filming cops is the ONLY way to make them truly accountable for their actions… Since you and I BOTH know their departments won’t do that.

posted by: Mario on March 1, 2011 6:10pm

Dear J,
I very much agree with you. I think there’s a danger of pretext on both sides right now. You sound like a sensible and reasonable guy, and like someone I’m glad to have serving as a police officer. Like in every profession, there are some bad apples and I believe that’s what SB788 is aimed at addressing.

Thanks for your service, J.

posted by: robn on March 1, 2011 8:17pm

KEN,

Wrong on so many levels. First of all, if someone is recording the police in a public place and not interfering with the police, the police have no expectation of privacy and citizens have the right to record them. In such a situation, the police can’t seize the camera on the grounds that its been used illegally (although in some states police have tried citing wiretap laws because audio goes with video, but they are failing in court.) They simply can’t seize cameras (cameras which are not used to commit a crime, but which may contain evidence of a crime) without a warrant.

I really, really hope you’re not on the NHPD because the lack of 1st Amendment knowledge illustrated by the force this year has been less than inspiring and I would hate to add the 4th Amendment to the list.

posted by: Ken on March 1, 2011 8:20pm

To Matt,

do you read the same blogs as I do? There is an awful lot of Police negativity and it is not deserved. This Police Department is full of good Cops and all we hear about is the negative stuff. Walk in our shoes and see what we put up with everyday, and I will tell you we get more grief from the Administration then we do from the citizens. We signed on to work out in the community and deal with all of that, but we didn’t sign on for the nonsense power struggles, bullying, absolutely stupid decisions that are made on a daily basis and Political crap that goes on inside the Police Department. Problem is no one listens to the Troops and those Supervisors that do, get banished for the rest of their careers. You don’t know us, so don’t judge us all the same.

Why was Chief Lewis successful, because he told all the city politicos that he ran the Police Department and he was not going to bow to them. He truly did what was best for policing in the city and for the Cops.

How about my TONE NOW! Think about it and have a great night.

posted by: Ellis Copeland on March 2, 2011 2:01am

Ken—the fact that you cops pine away so much for Lewis just proves he ... should never have been chief. If it is so terrible being a cop in New Haven then go apply in your town (since there’s an 80% chance you don’t live here).

posted by: To the haters on March 2, 2011 8:54am

well robn it seems that you are reading up on your Ct general statutes but so your aware an arrest is Confidential until the case has been settled soo any footage that you have of an arrest on a cellphone needs to be placed into evidence until the case is done. It can help the arrestee or the officer soo keep filming cuz I can guarantee an officer who takes the phone for that matter is not breaking any amendment right.

posted by: robn on March 2, 2011 12:06pm

TOTHEHATERS,

Again I hope you’re not on the NHPD because you’re assumptions about the law are completely incorrect. It’s not a crime to record arrests if the recorder isn’t interfering with the police. It IS a crime for police to seize bystanders cameras.

posted by: DMV on March 2, 2011 5:40pm

This is great I hope it empowers citizen like Luna to film more cops and hold them and the judicial system accountable to their actions. The cops are doing that with citizens and we should be doing that with them. Accountability all around.

posted by: Matt again on March 3, 2011 8:32pm

@ Ken:

How about addressing the points I brought up instead of just complaining about a job you CHOSE to do. Sound good?

I pay your salary. That makes me your boss. I have not only the right to film you, but the right to complain about your SERVICE (or lack thereof).

Cops need to wake up and remember who it is that FUNDS them… The taxpayers.

As for me, I fired cops a long time ago. I wish I could have my tax money back, but alas I still have to pay you people whether I use your services or not.

“We signed on to work out in the community and deal with all of that, but we didn’t sign on for the nonsense power struggles, bullying, absolutely stupid decisions that are made on a daily basis and Political crap that goes on inside the Police Department.”

Well looks like we’re both getting a raw deal. I never signed up to pay your salary, but we see how much choice I have in the matter… And as long as I AM funding the police, you better EXPECT criticism. You’d better EXPECT a camera on you at all times. When you’re in uniform you’re on MY time. You actually DID sign up for that.

Don’t like your job? Get a different one. But don’t you dare complain to me (your employer) about it.

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