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Rubino: I’ll Be Vindicated

by Paul Bass | Jun 7, 2012 2:16 pm

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

Posted to: Legal Writes

Paul Bass Photo The police sergeant at the center of FBI and local internal affairs investigations said when people see the cellphone video he confiscated, they’re going to be surprised.

It will show that he acted properly last weekend in subduing an unruly man in the Temple Street courtyard and in seizing a cellphone camera from and then arresting an Ansonia woman who recorded his actions.

“I’ve done nothing wrong,” the sergeant, Chris Rubino, remarked in an interview Thursday before attending a workshop at the Apple Store on Broadway about dealing with electronic equipment and files.

“All the people that say I was wrong and I should be fired—it was blown out of proportion by the press. The press wants to sensationalize it. That’s what they got.”

Tamara Harris Photo Rubino expressed no regrets from his actions on the job last Saturday at around 1:45 a.m. Those actions have led to a New Haven police internal affairs probe into whether Rubino’s camera seizure and arrest order violated a department policy. After a photo (at left) of Rubino and the subdued unruly man appeared in the Independent, the FBI opened a civil rights investigation into his handling of a suspect.

Rubino was supervising cops dealing with the regular wild weekend antics of clubgoers who wreak havoc downtown when the bars let out.

Patrons leaving clubs were pouring onto the courtyard on Temple Street between Temple and College streets. Police said several known troublemakers refused orders to disperse. One of them was a 24-year-old Bridgeport man with a history of run-ins with cops (including a similar arrest the following night). Police said he refused to leave the plaza, then fought with them hard as they subdued and arrested him.

A crowd gathered. Some members of the crowd whipped out their cameras to record the action. (Click on the play arrow for one video taken of the preliminary action. It does not capture the alleged brutality that allegedly appeared on the seized video.) Back-up officers arrived. They ordered people to leave the scene and blocked the view of picture-takers. Many complied.

Jennifer Gondola of Ansonia, who was leaving Pulse nightclub, was among the crowd. She had a clear view of Rubino and the suspect. She said she saw Rubino kick the suspect’s head bloody while he was on the ground handcuffed, so she decided to start video-recording. (Other witnesses interviewed in this story offered similar accounts of police misconduct.) Gondola said she captured Rubino and other cops kicking and beating the handcuffed man. Rubino paused when he saw what she was doing. He came over, asked to see the video, then asked for the phone. Gondola stuffed the camera in her bra. Rubino ordered a female cop to retrieve the phone. Then he pocketed it and ordered Gondola arrested for “interfering.”

Rubino said he needed the camera to preserve evidence of a crime. Gondola argued that he was snatching evidence of his own crimes.

“She wanted to be aggressive,” Rubino said Thursday of Gondola. “If she wanted to play the game, we can play the game.”

“I would never have let her leave with that phone,” Rubino continued. “Do you think anybody ever turns anything in in favor of the police? She would have never brought that in. I took that because it was in my favor.”

Rubino said the video captured the illegal actions of the man he was arresting. He said that supported his reasons for arresting and restraining the man.

“It showed what we had to do to make the arrest that had to be made to keep control of a situation that’s out of control every weekend,” claimed Rubino, who said that next month he will have reached 20 years on the job.

Facebook “The video was not in his favor. I hope and pray he didn’t erase the video,” Jennifer Gondola (pictured) responded Thursday. “It does show the suspect getting beat. It was excessive force. I’m hoping other videos come out showing this if my video is erased.

“I was not aggressive at all. I stated my rights and I made sure I stayed calm. I didn’t want to be uncooperative. I wanted to stand for what I knew was right. I was not loud. I was very calm.”

Gondola plans to meet with her attorney before responding to a police/FBI request to consent to having her cellphone video reviewed. Her phone remains in police custody.

The two investigations, meanwhile, have slightly different foci. The feds are believed to be focusing on whether the handling of the handcuffed suspect violated civil-rights law. The New Haven investigation is exploring that question, too, but is also zeroing in on what has proved a nettlesome question for the department, one that has now exposed the city to two potential civil suits: the snatching of cameras from citizens.

Police union President, Arpad Tolnay defended Rubino by saying the department’s order against preventing citizens from recording officers’ actions in public does allow for seizing cameras to preserve evidence in cases like this, a view that others have interpreted differently. In addition to the order, the camera-seizure question will be decided in part by interpretations of the Fourth Amendment to the U.S. Constitution, which limits cops’ search and seizure rights.

For Rubino to prevail on that question, he must show he was acting under “exigent circumstances” that required him to take Gondola’s camera—rather than, for instance, asking her to email the video to her, then seeking a search warrant if she refused. According to one summary of a federal ruling on the question, Rubino would have to prove that in the Temple Plaza, he had to take the camera based on “reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, [and that] the search is not motivated by an intent to arrest and seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.”

New Haven State Sen. Martin Looney said Rubino’s case fails to meet the threshold for such “exigencies.”

“That would be a reach” for numerous reasons, Looney said: Rubino had plenty of other evidence (including the eyewitness accounts of other cops present at the scene) to document the reasons for arresting the man in the courtyard. Even if no other evidence were available, a true “emergency” has to exist to seize property or, say, enter a private residence without a warrant, such as a threat to somebody’s life. “Someone screaming inside a building ... about to be killed or severely hurt in that moment,” for instance.

Thomas MacMillan File Photo Looney (pictured), a private attorney as well as the majority leader of the state Senate, authored a state bill to make cops personally liable for violating citizens’ rights to record police in action. He authored that bill in the wake of another instance of a high-ranking New Haven cop seizing a citizens’ camera and ordering his arrest (in addition to erasing the memory card). Looney noted that Rubino’s actions occurred despite the fact that former Chief Frank Limon issued an order and then had cops trained to prevent such camera grabs or arrests.

“That points out the need for the legislation we propose,” Looney said of his bill, which he plans to reintroduce next session. (It passed the Senate this year, but not the House of Representatives.) “Nothing focuses the mind like knowing you might be sued for taking away people’s rights.”

Meanwhile, Rubino remains on the beat. Before Thursday morning’s session began at the Apple Store, he said he remains confident that he has always done his job well and will emerge from the scandal with his reputation intact.

Some two dozen district managers, detectives, and other top cops attended the Thursday Apple workshop. Apple’s Jonathan Torres walked the group through using Apple’s iCloud feature to try to locate missing iPhones and iPads. He discussed camera photo and storage techniques.

Rubino sat front and center at the store’s “Genius Bar.” He listened intently. Toward the end he asked a question: If someone wipes out the information on a cellphone, will information disappear from the phone’s SIM card memory chip?

Torres and a fellow staffer weighed the question. The response: A record of phone numbers contacted will remain. Photo and video files are gone forever.

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Comments

posted by: Curious on June 7, 2012  3:38pm

Alright Rubino.  Let’s see the video.  You’re so positive it will exonerate it, send it to NHI.  Let’s see your cards.

posted by: NHPD on June 7, 2012  4:26pm

I agree.  It should be posted.  Why is Gondola not allowing the NHPD and now the FBI to view the video?  Now they have to do a search warrant?  Does she have something to hide?  Like maybe the video doesn’t show anything she said happened.  Why isn’t there more outcry to see the video?  None of the other videos show any abuse yet.  Go figure?

posted by: streever on June 7, 2012  8:04pm

@NHPD
You do realize that Gondola does not have the phone, right? Rubino does.

From the earlier story:
“Before leaving she encountered Rubino again. She asked for her phone back.

“No,” he allegedly replied. “That’s evidence.”

At this point only a judge can order her phone returned. Gondola will get to ask the judge for her phone next week.”

posted by: JustAnotherTaxPayer on June 7, 2012  8:09pm

It will be evidence in her civil suit, and as such her legal counsel has advised her not to relinquish the phone or recording unless ordered by the court via a search warrant, or subpoena.

At this time there are at least 3 copies secured.

The NHPD should not engage any of the individuals at bar closing because the bottom line is the blame for any use of force will always fall to them, and the public with the city management will always hang them out to dry.

It is far more difficult to be sued for a failure to protect under these circumstances, so don’t get involved. Just go in later and pick up the bodies.

posted by: East Rocker on June 7, 2012  8:15pm

NHPD:

There are still two issues here.  First, is whether or not Sgt. Rubino abused the arrestee.

But even if he did not, there is still the issue of whether or not he had any justification for confiscating Gondola’s phone or whether he violated General Order 311.

I’ll be interested to see the video, too, but I’m not holding my breath.  Given that this is an ongoing investigation and the potential legal ramifications for various parties involved, I would be surprised if anyone releases it to the public anytime soon.

posted by: Edward_H on June 7, 2012  11:28pm

If he really did order her to “stop filming” he should be fired. Even if he is exonerated from any brutality charge he has no right to order someone to stop filming public police actions. Had he not arrested this woman this incident would have ended up as a small sidebar article along with the rest of the everyday shootings, stabbings and arrests.

posted by: formerNhresident on June 8, 2012  1:17am

why doesn’t the city install cameras at every corner of the downtown area? i forgot this against our civil liberties.

posted by: streever on June 8, 2012  10:13am

NHPD
I’m curious to see your response. While you (correctly) point out my and others bias—which is due to having a historical context around these specific issues, in some cases a very personal context—I think you miss your own bias, which causes you to immediately suspect Gondola.

As the stories point out, the only person not releasing the actual video is the NHPD. Gondola does not have access to her phone (unless I missed an update), but the NHPD does.

The video should be posted. Why isn’t the NHPD doing so? Now she has to get a court order? Do they have something to hide? Like maybe the video doesn’t show anything he said happened.  Why isn’t there more outcry to see the video?

posted by: HenryCT on June 8, 2012  10:21am

Officer Rubino says he confiscated the phone because it has important evidence. Thus he is in effect guaranteeing that the video does not get erased, else he or someone else is tampering with evidence. If there is a case against the suspect, the unruly man, then we should expect that this video evidence be used in his case and revealed publicly.

posted by: PhillyRock on June 8, 2012  11:42am

This has passed legal scrutiny time and time again.  It is not illegal, and never will be, to capture images or video of police actions in public for any reason anywhere in the USA.  There is zero presumption of privacy in public on all sides of the law (offender, law enforcement, witnesses). 

Who watched the watchmen?  The Public-at-Large.

posted by: Mister Jones on June 8, 2012  11:50am

Whether the video vindicates anyone remains to be seen, but people tend to see what they want in these things, as you can tell from the different interpretations of the photos and videos so far. 

This case presents the serious question about how to preserve potentially ephemeral evidence in a free society. 4th Amendment says a warrant is required for a seizure, but by the time they get a warrant the evidence could easily be gone…

posted by: jenand on June 8, 2012  12:44pm

OMG! The question asked at the Apple workshop (quite a coincidence in its hefty attendance), by Officer R., makes him look even worse! What in the world is this guy thinking? Doesn’t he have an attorney? NH Independent - your journalism is so refreshingly on point and outstanding. Thank you

posted by: robn on June 8, 2012  1:52pm

JENAND,

The officers question was actually a verygood one. The data on most computer hard disk drives is still there after the user thinks its erased and it really takes three disk wipes or lots of defragging to overwrite the data…until then its recoverable. Solid state memory (the SIM card) in phones and other devices like cameras is more complex and erased data is effectively erased forever.

posted by: Mister Jones on June 8, 2012  5:26pm

Streever, NHPD and others:
Why hasn’t Gondola’s video been released yet?  It seems that the police department is waiting for either Gondola’s permission, or issuance of a search warrant, before they search her phone for evidence, including inspecting and copying the video.  I’m not naive, so I expect they’ve “pressed play” in the meantime, but they will dot their i’s and cross their t’s to make sure they can use the recording, whether in the criminal case against the guy on the ground or in the IA/FBI investigation. Once they get official access, it still might not be released for a while.  As part of an open investigation it may be exempt from FOIA.

Meanwhile, we are all whistling in the dark about what’s really in the recording:  justifiable force or police brutality? An initially polite encounter with a bystander or an order to stop taping? Or another Rorschach inkblot in which folks will see what they want to see?

Gondola has a First and Fourth Amendment rights to video the scene and not to have her property seized without a warrant.  Would the cops have seized a videocamera from Paul Bass or News 8? Not likely, but with a professional photojournalist there’s less question about preservation of evidence while the legalities are sorted out. Plus there’s a statutory ban on newsroom search warrants, and a press shield law limiting subpoenas.

[Editor’s Note: True, reporters get treated better. But not always. We’ve had conflicts with the occasional rogue cop who seeks to intimidate us into stopping using our cameras or even erasing what we’ve shot.]

posted by: okaragozian1 on June 11, 2012  9:21am

Current laws (4th Amendment as interpreted by a conservative Supreme Court) and police policy (cited policy of ex-Police Chief Limon) that prohibit the “taking” of the device from Ms. Gondola.

We are not sure of the crime against the arrested, but there is little doubt that there was a crime against Ms. Gondola perpetrated by Police Sargent Rubino as clarified by State Senator martin Looney.

You just can’t go grabbing stuff from people out and about on the street or their homes without good cause simply because you are a police officer or Sargent.

Turning to the 24 year old who was arrested, the police are claiming that he fought with them hard before being arrested.  Why a fight to begin with if the arrestee could just be “stun gun tased” and incapacitated?

We possibly could have here an issue of training on “approach” or with “situation management”.

posted by: dotti226 on June 15, 2012  11:42am

I have viewed the video several times.  I saw no police brutality here in excess force.  I do see a group of angry disrespectful people against a few police officers trying to do their job.  That has been the history of New Haven since as far back as I lived there. 
the morale of the police has been so low it amazes me that there are still cops willing to do their job.
The question here is??? Will there be support for these already taxed police officers or will the support go to the community of people that cry wolf whenever they are caught in the act of a crime.  A man who puts his life on the line everytime to goes to his job needs to be commended and treated fairly.  That is what I hope will happen in this case.

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