Civil Liberties

It Is Not Illegal To Record Cops in New Haven. But You Might Still Get Arrested, Charged, and Convicted for Doing So.

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You know what they say about small shoes…

A few weeks ago, I wrote about a SWAT raid on New Haven nightclub. The raid was for suspected underage drinking. In addition to the obvious overkill show of force, police also threatened and allegedly arrested a Quinnipiac University student for attempting to record the raid with their cell phones (the police say the student was arrested for assaulting officers and disrupting the raid). This was a big story in New Haven, and it prompted a statement from both the mayor and the chief of police affirming that it is perfectly legal to record on-duty cops in New Haven.

At about the same time, another man was arrested in New Haven for recording the cops. On September 25, Luis Luna was arrested for filming an arrest outside of a New Haven bar with his cell phone. Officially, Luna was charged with interfering with police, but the police report itself specifically says that Luna was arrested for "filming", and makes no mention of him interfering with the arrest in any other way. (You can read the report here [PDF].)

The report also says that Luna's arrest was ordered not by a rank-and-file cop, but by Assistant Chief Ariel Melendez, as in the assistant chief of the New Haven Police Department. According to the New Haven Independent, when Luna got his phone back, the arrest video had been deleted. His phone did, however, include the photo at right, which looks to be an image mistakenly captured while the cops were fiddling with Luna's phone.

After the nightclub incidents made headlines, New Haven Police Chief Frank Limon assured the local media that he told his officers, "Assume you're being videotaped all the time when you're out there." And here's what New Haven Mayor John DeStefano said on October 4 in response to the nightclub raid:

This is America. Anyone can film anytime they want, including you, me and the PD while on duty. It is not my understanding that this is why the QU student was arrested.

Perhaps not. But it is why Luis Luna was arrested. And on October 8, four days after DeStefano unequivocally affirmed the legality of recording on-duty cops, Luna appeared in court to answer the charge. Here's what happened next:

"I approached the prosecutor and he said they would drop my charges and that I would have to pay a fine for creating a public disturbance," Luna said. Luna said he thought to himself that he shouldn't have to pay anything, that he hadn't done anything wrong. But the prosecutor told him he probably wouldn't qualify for a public defender, Luna said. He said when he asked where he might find a lawyer, he was referred to the yellow pages.

Without the time or money to fight the case, Luna decided to agree to the deal. He was charged with the lesser crime of creating a public disturbance.

When the judge asked if he was guilty, he said no, Luna recalled. "The judge explained I have to plead guilty," he said. "At that moment when I said I'm guilty, I felt like I was going against myself."

If, according to DeStefano, "[a]nyone can film anytime they want, including you, me and the PD while on duty," why was Luna arrested, charged, and convicted for doing precisely that?

If the law in New Haven is as clear as DeStefano makes it out to be, not only should Luna have never been arrested, but in ordering the arrest, Assistant Chief Melendez clearly violated Luna's civil rights—and he, of all people, should have known as much. New Haven State's Attorney Michael Dearington (or whatever subordinate handled the case) also should have known that carrying out the prosecution of Luna was also a violation of Luna's rights. Finally, the cop or cops who deleted the video on Luna's phone destroyed evidence, of both the arrest Luna was filming and of the illegal arrest of Luis Luna himself.

So who will be punished? Will the cops who deleted the video face criminal charges, as any citizen who destroys evidence of unlawful activity likely would? Will they be charged for destroying Melendez's property? Will Melendez be disciplined for ordering an arrest that was, very clearly, a violation of New Haven law and Luis Luna's civil rights?

Here's the thing: It's all well and good for Mayor DeStefano to state that it is perfectly legal for citizens to record on-duty cops in New Haven. But if New Haven police are permitted to arrest and jail—and if prosecutors are permitted to charge and convict—citizens for doing precisely that, it pretty clearly isn't legal, by any definition of the word.

It's also about damned time that cops who delete citizen-shot video that may incriminate them or their colleagues get the same punishment a citizen would get for doing the same thing. They can't play dumb with the "Gosh, if the videos aren't there, you must have never taken them" excuse this time. The police report clearly states that Luna was arrested for "taking pictures" and "filming". The bumbling cops then inadvertently provided photo evidence of their tampering with Luna's phone. Luna should take the phone in to see if the videos can be recovered, and if it can be discerned when they were deleted.

As it stands, the only person to suffer any consequences in Luna's case is Luna, the one party who, according to the mayor and chief of police, didn't do anything wrong.

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  1. Yo, fuck the po-leece.

    1. *backspace backspace backspace backspace*
      Yo, film the po-leece.

      1. Yo, fuck^Wfilm the police.

    2. No don’t fuck the police. Fuck the idiots that live in that live in New Haven and put up with that crap. How about a recall of the prosecuter for starters and then a recall of the police chief? And if the idiot judge was elected, recall him too. Then you can charge the cops with distroying evidence or whatever law they broke.

  2. Has anything been done to get this very useful advice to the victim in question?

    1. Uh, it’s a little late. He pled guilty.

      1. I think he means the advice about recovering the deleted video.

  3. The law is what the people with the power and authority to enforce it say it is. I was always a big “rule of law” limited government type of guy. Now I see the fallacy in that. Give people power and authority over others and it will be abused.

    1. Join us on the anarcho-capitalist/individualist anarchist side, dude.

    2. “Give people power and authority over others and it will be abused.”

      Quis custodiet ipsos custodes?

      The answer is “you”.

  4. Deleting video evidence. Yep, the cops should be charged with the same thing: “interfering with police,” whatever that means.
    [I think it means what they want it to mean.]

    1. Defense Lawyer: (conversationally) Ladies and gentlemen of the jury, if there is no evidence of filming on my client’s phone (silently thanks cops for erasing it) and he is being charged with filming.. how can he possibly be convicted? (pauses, continues in a slightly more firm voice) There is NO evidence to support a conviction.You must find my client not guilty.

      1. This seems solid…

  5. Jesus Christ Radley, the swelling in my nut-sack hasn’t even gone down since the last kick in the balls!!!

    1. I have a cream for that. and porn.

    2. Yeah, I am wondering what is going on. If you keep this up each and every libertarian in the US is going to commit suicide out of pure despair.

      Then think of the headlines when the media gets a hold of this story: “Libertarians half as Deadly as Four Loko” (or some such crapola).

  6. Sideshow Mel: I am Melvin Van Horn. And this is my associate, Herschel Krustofsky.
    Krusty the Clown: Hey-hey.
    Sideshow Mel: Officers, you have arrested an innocent man!
    Chief Wiggum: Really? Ah, jeez.
    [Opens cell door]
    Chief Wiggum: All right, Colossus, you’re free to go. But stay away from Death Mountain.
    Dr. Colossus: But all my stuff is there.

  7. So who will be punished? Will the cops who deleted the video face criminal charges, as any citizen who destroys evidence of unlawful activity likely would? Will they be charged for destroying Melendez’s property? Will Melendez be disciplined for ordering an arrest that was, very clearly, a violation of New Haven law and Luis Luna’s civil rights?

    The innocent, no, no and no.

  8. Mr. Balko, while I greatly appreciate the articles you write, and the goal you have when you put them together, I’d like to take this opportunity to remind you that you should always wear your seat belt and obey the speed limit.

    Never get caught jaywalking.

    Don’t violate any kind of curfew.

    Don’t sell cupcakes or lemonade in a city park without a license.

    You know, don’t ever do anything to attract the attention of the thugs in blue.

    Because if you ever have a run in with the cops, they’re going to get even. And no one who reads your informative posts wants that at all.

    Stay safe, sir, so that you can keep on fighting back for everyone else.

    1. I would recommend adding Balko on Facebook because it seems he posts puppy videos the day before he posts double-nut-punches on Hit ‘n’ Run. It eases the pain a little.

      1. You don’t have to be on cough syrup to watch this video, but I hear it helps.

  9. I remember 30 years ago the cops would give you warnings about speeding, tell you to get a bag for that open beer, pinch a little of your stash and then give it back, and various other courtesies. What the fuck has happened?

    1. The cops learned that they enjoy federal drug war money and petty citation payments more than the public’s respect.

      1. And I imagine they will quite soon regret it. Better not to be shot at, than to wear a top of the line bulletproof vest that stops 4 out of 5 of the incoming bullets. Respect > body armor.

      2. The cops learned that they enjoy federal drug war money and petty citation payments more than the public’s respect so they can buy big fucking guns, kick in your doors and shoot your dog.

  10. This is seriously sickening. The criminals (police) get off scot-free while the innocent are criminally prosecuted.

    Clearly we need better oversight and control of law enforcement in this country. This would include criminal punishment of district attorneys and police officers who abuse their power. What’s the answer? Is there any possibility of fundamental reform which might involve some type of oversight agency?

    1. The answer the Founding Fathers would have given, and quite a few did on a morning in 1775: Don’t miss. Don’t miss repeatedly. Keep not missing until the bastards go away and stay away.

    2. No.

    3. Things will not change until more people give a shit, especially middle class and rich white people. Realize that those of us who are outraged by this are a small minority. We live in a cop worshipping culture.

      Most–certainly not all, but most–police misconduct is directed at people who (like Mr. Luna) do not have the funds or the wherewithal to actually fight back. Cops know this and that is why the goon squads generally target poor (usually minority) neighborhoods. If they tried to pull that shit in rich white neighborhoods the residents would demand the police chief’s head. Have you ever seen a roadblock, drug sweep, etc in a wealthy white neighborhood?

  11. Could be worse – coulda been the TSA.

  12. He wasn’t convicted. He pled guilty.

    Of course, the police and prosecutors acted shamefully and deserve to be drawn and quartered. That won’t happen unless someone has the nuts to actually fight the charges, though.

    1. Ever notice how this stuff only happens to the people who can’t afford to fight it?

    2. The bullshit idea that someone who pleads guilty has given up any grounds for appeal or etc is bullshit.

    3. Yeah he pled guilty, but if favorable evidence was intentionally withheld then he could claim a Brady violation, and assert that his guilty plea was unintelligent and coerced.
      So true what a previous poster said, if there is no evidence of his videotaping, then he should not even stand trial.
      Furthermore, there should easily be a federal right lawsuit available here, as state actors under color of law violated his federal rights.

  13. Also, how come he wasn’t allowed to plead “no contest” rather than “guilty”? I thought you could do that with misdemeanors.

    1. You can plead no contest to certain misdemeanors in certain states, but its not a guarantee. Additionally, outside saving you points on your license, it really doesn’t change much to plead nolo contendere in any jurisdiction I know of.
      What you essentially say when you take a no contest plea is that, “I don’t think I’m guilty, but I also don’t think I can provide the reasonable doubt needed to protect me from being convicted of what you say I did.”
      In this case, there’s not even a crime to plead “no contest” to, its just an illegal sentence, illegally given to this poor fella.

  14. Owww, my balls!!!

  15. Can someone skilled in legalese and the vagaries of American law please explain how filming an arrest made by law enforcement is “interfering.”

    1. 1 cops don’t like it
      2 cops subdue videographer instead of real criminal
      3 ???
      4 charges

    2. Quantum mechanics shows that the observer affects the observed. Just like a photon bouncing off an electron interferes with its motion, a person filming police is interfering with the performance of their duties.

      1. +lol (I’m waiting for the inverse to be true: enacting a law causes the crime to be committed)

        1. Have you heard of drug laws?

      2. The simple solution is to not observe the film. Until the film has been observed, no observation has been made.

        Send the film to police. They will undoubtedly observe the film. At which point they will have to arrest themselves for interference with their own duties.

      3. Quantum mechanics shows that the observer affects the observed. Just like a photon bouncing off an electron interferes with its motion, a person filming police is interfering with the performance of their duties.

        Hey you! Hold it right there. What’s in the box? A cat or something?

        1. We’re not entirely certain.

          1. And he may or may not be dead.

            1. I may or may not enjoy Quantum mechanics while maybe understanding them… or not?

    3. Yeah, “interefering with the police” is right up there with “creating a disturbance” and “disorderly conduct” as “offenses” that border on being unconstitutionally vague. They’re the catch-alls that cops love to use to threaten anyone who is not sufficiently demonstrating the proper level of deference to their authoritai.

      The most aggravating part is when the only reason the “disturbance” is being “created” is because of the cops themselves – i.e., you were doing something perfectly legal and peacable, and the cops came along and told you to stop, and you refused, at which point they say you’re being disorderly and interfering with them, because you’re not doing what they told you to. In those cases, it seems to me that the cops are the ones creating the disturbance – there was no disturbance until they showed up and started getting aggressive.

  16. Did Balko get his Nobel Peace Prize yet?

    1. Balko is no Jimmy Carter.

    2. No, he doesn’t deserve it. He’d be in pretty shitty company (few exceptions).

    3. A Peace Prize requires a lifetime of sacrifice for the common good of humanity, not a couple of years of repetitive speechmaking while working a cushy gig for a DC employer surrounded by adoring fans.

      1. Tell that to Barack Obama.

        1. Zing!

        2. Even I saw that one coming.

          1. Excellent! Reddit much?

      2. Yo, Hobie, you got effed in the a.

  17. Someone should form a hit sqaud for these fucks.

    1. We are backtracing your comment now. The consequences will be epic. You threatened to kill the police. That is a felony and you will be found, convicted, and executed. We cannot allow person or persons unknown to terrorize our citizens.

      1. Policeman Bill how do I know which cop to trust and which one are likely to kill me in my bath you in LV? Also if I become a cop(will never happen b/c the sytem is too fucked up for good/smart people to be a part of) how do I ever trust you to have my back. Maybe Ill just become a lawyer and try to fight for human rights for once…. but im not that kid from CKY so fuck that…

        PS could you tell you co-works to stop killing people and terrorizing my brothers and sisters?

  18. We also need a one-click way to upload videos from smartphones to a Web site, or to stream them while saving them on a separate site. I’d really like to see a cop’s face after, having told a private citizen to delete his video, they find out it’s already on the Net.

    1. I’d like to see the cop’s face, after arresting someone and falsely charging them, and then erasing the video from that person’s phone, they find out that all that power-tripping didn’t end up suppressing the video, and now the spotlight will be doubly on them for the video and for accusations of unlawful arrest made by the victim.

      The reason cops think they can get away with whatever they want is because, currently, they can. But if instant video streaming to a secure site becomes common, they will not be able to know when video of them can get out. It might put a little fear into them, one would hope.

      1. Yes, and once there was clear, undeniable evidence that the cops broke a law that didn’t involve cold-blooded murder, then… nothing would happen. Granted, that could be grounds for an equal protection complaint.

    2. One can simply create an account with a service like justin.tv, use their apps and broadcast it live. It’s also automatically archived.

    3. http://qik.com/

      Not foolproof, though. Because the phone has access to your account, and if the cops are savvy enough, they can use the phone to access your account and delete the video.

      1. lock your phone with a password like I do

  19. All you can see in the picture are their Jack-boots.

  20. Charge them with both destruction of evidence and filing a false report. Both of these are crimes and they must be guilty of one of them.

  21. The solution will lie with technology. They have to invent the neuralyzer so they can totally fuck with you and make you forget it. Then everybody’s happy.

  22. Wait, isn’t the judge telling someone that they have to plead guilty grounds for a mistrial? I’m not a lawyer or anything even resembling one, but this seems to be an egregious breach of due process (assuming that exists anymore).

    1. Meh. The judge told him he had to plead guilty to get the plea bargain deal. There’s nothing wrong with that part of what went down.

  23. Why doesn’t some defendant call in the ACLU when charged with facing a bogus charge of “creating a public disturbance” (or something like that) – when the only thing the person did was the admittedly legal act of filming the cops at work in public?

    1. Uh, yeah, where the fuck is the ACLU when it’s really needed?

  24. In CT, “Creating a Public Disturbance” is an infraction, not a crime. It’s the rough equivalent of allowing a dog to roam or a parking ticket. I would let a client plead guilty to CPD and pay $35 every day because it doesn’t result in a criminal record. Sure, the prosecutors should have thrown the case out and the police should be drawn and quartered, but you can’t blame Luna for taking the deal.

  25. @AKTom The judge might have been trying to help Luna. In other words, “don’t plead guilty if you’re not guilty — make the State prove it’s case.”

    1. I got the same idea. I’ve seen a lot of plea colloquies where the defendant gets confused and starts to argue. The judge then instructs the defendant: if you want to plead guilty and get this deal, do it. If not, then plead not guilty. But stop wasting everyone’s time because you’re only supposed to be here if you already decided which way you’re going.

  26. I enjoy these little 12-step meetings. Which stage are we at now?

    -Admitting that you cannot control your addiction or compulsion for ineffectual whining?

    -Recognizing a greater power (Radley) that can give strength?

    -Examining past errors with the help of a sponsor (maybe you could convince joe to come back.)

  27. Remind me again how I am supposed to respect and admire these so called heros? FTP!

    1. File Transfer Protocol?

  28. Is America a police state?
    No.
    Are we getting there one step at a time?
    Sure fucking seems like it.

    1. Seems so. We’ve lost touch of nearly everything we held true. We live in fear and restriction. What’s ironic is if we didn’t let money and greed and power take over everything, we’d still deserve to be #1. We have amazing schools, some of the most brilliant minds in the world, best health facilities… but perhaps that’s just a product.

  29. PIGS.

    I’m old enough to remember “Peace Officers” – but it seems they’re now an endangered species.

    Luna should sue everyone from pigs through “judge” to janitor for violations of his civil rights.

    Welcome to Rev. Wright’s “US-of-KKK-A”

    This requires not a “12-step” remedy, but rather a “2A” remedy.

    DD

    1. That’s the spirit! But try stamping your foot for better effect.

  30. The solution is simple, stop aiming at them with cameras. Point at them with iron sights. I’m done, I wont take it anymore, when shit hits the fan, i don’t care what you call me or what propaganda they say was behind my actions. I’m gonna be voting from the rooftops for change.

    1. Sad that it’s come to this. May I suggest you simply try educating more of the middle/lower class.

      Spread the word to spread the word. This way we have more like minds on the streets and not incarcerated or dead. When the number gets big enough, we simply decide. I have hope in this.

  31. The post’s byline is missing.

  32. Articles like this remind me why I read Hit & Run, despite all of the pro-industry boilerplate op-ed writing I have to sort through.

  33. remember, guns are only bad when they are used for the wrong reasons…such as wanting to cut in line at the grocery store.

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