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

Monday, November 15th, 2010

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

  1. #1 |  Dave | 

    The only thing Luna did wrong was to agree to the plea deal.
    He should have proceeded pro se and stood his ground.
    Of course nothing that happened should have placed him in the court to begin with.
    Criminal Justice System is a very good description indeed!

  2. #2 |  perlhaqr | 

    Hang them all.

  3. #3 |  Dave Krueger | 

    #1 Dave

    The only thing Luna did wrong was to agree to the plea deal.

    True, but it’s hard to stand up to a phalanx of cops intimidating you and even those you know your rights are being blatantly violated, the cops will make your life miserable if you try and defend yourself. After all, who’s going to tell them they can’t? I think it would be difficult for one of us to stand up to them, much less someone who still believes the myth that justice will prevail.

    The PBS show “Frontline” just had an episode about the Norfolk Four. It makes a pretty convincing case that cops and prosecutors just don’t think in terms of whether you did anything. They only think in terms of whether they can pin something on you. That’s not an exaggeration or hyperbole. It’s a simple description of how they interact with the public.

  4. #4 |  Marty | 

    these plea deals look like batters who walk or hit singles all game- it’s not a home run, but it ends up being a win for the cops and prosecutors. it’s like they’re demanding that you blow them or give them a hand job- neither look very attractive, but if you gotta choose…

    I’m starting up an ‘assholes to be tarred and feathered’ database and he easily qualified.

  5. #5 |  overgoverned | 

    “Not guilty, your honor. I will insist on a trial by jury.” They’re not going to instantly conjure up a jury trial — you have time to go get a lawyer.

    *We’re* the most important check on government. You have to be able to hold your ground at least a little bit. If you can’t have a basic sense of your legal rights, and a modest ability to push back against assaults on those rights, the result is only partially the government’s fault.

  6. #6 |  Steamed McQueen | 

    Yet another example of how the American ‘justice’ system is only interested in convictions.

    You just aren’t going to get out of an American courtroom without pleading guilty to something. It doesn’t really matter what you did or did not do, we need to keep the numbers up!

    Oh yeah, and now Mr. Luna has a criminal record!

  7. #7 |  ClassAction | 

    #5

    If only it were that simple. There is no right to a trial by jury for many minor crimes, including, in Connecticut, for creating a public disturbance. According to the Connecticut code, it’s considered to be an “infraction” to which the right to a jury trial does not adhere: http://law.justia.com/connecticut/codes/2005/title53a/sec53a-181a.html

  8. #8 |  Brian | 

    The cops probably took that picture of their boots so he’ll recognize them the next time one is stomping on his face.

  9. #9 |  M Blaze Miskulin | 

    This is exactly why people should use services such as Qik, and why those services should not allow the deletion of videos from a mobile device (and should require a separate password for deletion).

    I would *really* love to see a case where the prosecution says “there is not video”, while the defense brings up a website and says “Oh yes there is. See? Now… can you please explain to the court why this video vanished from the phone while it was in your possession?”

  10. #10 |  K9kevlar | 

    Mr. Balko asks who will be punished. Mr. Balko is a funny guy.

  11. #11 |  Pete | 

    @Dave #1

    The only thing Luna did wrong was to agree to the plea deal.
    He should have proceeded pro se and stood his ground.
    Of course nothing that happened should have placed him in the court to begin with.
    Criminal Justice System is a very good description indeed!

    Pro Se sounds like a viable option until you witness a friend try it and have every sort of roadblock thrown up in his face. My good friend recently tried to beat a harrassment/stalking charge pro se. The judge refused to allow exculpatory evidence that my friend had obtained via subpoena, evidence that was notarized and on the company’s letter head, everything. Not allowed, don’t really know why, seemed kind of like a whimsical decision. The prosecutor in the case was a LEO from my friend’s former place of employment who believed my friend was a ‘bad apple’ from a previous case involving some patient monies that came up missing. (The secretary that collects these monies was later fired for, you guessed it, pocketing patient cash.)

    Anyway, the LEO/Prosecutor didn’t investigate pre-trial, even though department policy (which I advised my friend to subpoena) clearly states that both sides of a complaint should be investigated, statements taken, etc. No, didn’t bother. The alleged victim lied on the stand, and the evidence that could have disproved her statements wasn’t allowed in.

    So to summarize all of that in a few sentences, my friend showed up to court pro se with all the tools he needed to prove his innocence, actually PROVE IT, and those tools were suppressed. In the meantime the state’s burden of proof was met via false testimony, and my buddy got convicted and fined.

    So no, pro se isn’t some magical thing anyone can do so long as you do some research. We did a lot of research, filed motions, subpoenaed evidence, and still came up short because the system is simply stacked AGAINST honest justice.

    It’s a legal system, not a justice system. In a justice system following the rules and procedures while holding evidence that proves your innocence would result in an innocent verdict. In a legal system you get fucked, and people are getting fucked all over the country.

  12. #12 |  Bünzli | 

    Sorry if it’s not germane to the article above but i thought this might interest you guys: http://www.nytimes.com/2010/11/16/opinion/16bovett.html?ref=opinion

  13. #13 |  Homeboy | 

    @Pete #11

    The biggest advantage that an attorney possesses over a layman in a criminal proceeding is mastery of the rules of evidence. Many of the FRE and state rules make absolutely no sense and seem to fail all criteria of rationality, yet it is the manipulation of these rules that decides whether or not any particular item of evidence is admissible. This, coupled w/ the well known fact that judges dislike and resent pro se litigants, does not bode well for a layman who wishes to engage in self-representation at trial.

    Now, that being stated, Luna should have stood his ground and proceeded pro se. The burden was, after all, on the state to prove the criminal nature of Luna’s conduct, and absent a coordinated conspiracy no coherent account proving his guilt would have been forthcoming (assuming the facts are as they are reported here). He could have requested counsel, and if denied that ordinarily would indicate that the judge only intended to fine him in the first place. By pleading guilty, Luna fared no better in terms of outcome than he would have by standing trial, and he likely abandoned any right he otherwise would have to appeal. That is too bad for all of us, for I would have liked to have seen avenues of redress remain open on this case, as that would have been in the best interests of all of us.

  14. #14 |  delta | 

    #12: “Sorry if it’s not germane to the article above but i thought this might interest you guys: http://www.nytimes.com/2010/11/16/opinion/16bovett.html?ref=opinion

    That stuff kind of sucks. I’ve had major sinus problems for ~15 years, and pseudoephedrine-based products are the only thing that really helps.

    That said, I think I’d rather have it be prescription-based than this goddamn tracking system they’ve put in place.

  15. #15 |  Boyd Durkin | 

    Is there a more vile “profession” than a cop? What a horrible group of scumbags.

  16. #16 |  Boyd Durkin | 

    Luna could’ve leaned back in his chair and told the prosecutor “You can have my answer now, if you like. My final offer is this: nothing. Not even the fee for my parking, which I would appreciate if you would put up personally. Instead, you, the judge, the cops, and the mayor will all come before me, get on your knees and apologize. After that you will deposit $5000 each into my bank account so that you learn a lesson about who you work for and who is actually supposed to be in charge. Say, those are nice pants. Give them to me.”

    /dreaming

  17. #17 |  Nancy Lebovitz | 

    Off-topic: http://consumerist.com/2010/11/you-might-be-in-serious-for-refusing-to-be-tsa-screened.html

  18. #18 |  Mannie | 

    #4 | Marty | November 15th, 2010 at 10:42 pm

    I’m starting up an ‘assholes to be tarred and feathered’ database

    I Hope you have a LARGE hard drive.

  19. #19 |  Michael Chaney | 

    Radley, did you contact the chief for a comment?

  20. #20 |  SJE | 

    Of course, if you destroy evidence that the police or FBI need, you are in big trouble. Destruction of evidence is OK if you are a cop who beats or harrasses people, a CIA officer who tortured people, etc.

  21. #21 |  Yizmo Gizmo | 

    Something exotic is brewing in that accidental photo by the cops.
    Looks similar to the beginnings of Melvin Belli”s phantasmagorical wizard in that old Star Trek episode.
    http://www.blogcdn.com/www.tvsquad.com/media/2007/10/st-gorgan.jpg
    Too bad the shark lawyer Belli didn’t appear and take the case.
    That’s what we need to fight these gov’t thugs, a little magic.

  22. #22 |  Law Prof | 

    “It makes a pretty convincing case that cops and prosecutors just don’t think in terms of whether you did anything. They only think in terms of whether they can pin something on you.”

    Absolutely true.

    Prosecutors have a “ethical” obligation to serve Justice, not simply get convictions. That’s just P.R.

    Prosecutors must keep their numbers up and please the police (whose endorsement they need for re-election). To them EVERYONE is a criminal, they simply haven’t been found out yet (consider the psychological source of common this police/prosecutorial belief).

  23. #23 |  Dave Krueger | 

    Looks like this may be Agitator type news.

    From the story:

    “Though I didn’t agree or consent to it (it) was not rape,” a young woman scrawled hours after she said she was sexually assaulted by a Marion police officer.

    It’s a sentence she said other Marion police who investigated her claim coerced her into writing.

  24. #24 |  Laura Victoria | 

    Sack of Scum DeSteffano is the named defendant in the infamous firefighter affirmative action case (Ricci) he and his pals lost in SCOTUS. They lied there to protect their racial preference game rigging.

    That said, it’s almost impossible to get a criminal case dropped completely once you are charged with something. The reality is they play with taxpayer bucks and don’t give a shit how much they spend. They will drive you broke with a trial preceded by scores of pointless motions. That, plus a downside that involves lots of risk if you lose, means almost everyone pleads guilty to something or they’re a fool. The new trend is bogus means testing so appointed counsel, including the public defender, becomes harder to get. Like the cops they kneel down before, prosecutors love to fight battles where they tie their opponents’ hands behind their backs.

  25. #25 |  Law Prof | 

    “it’s almost impossible to get a criminal case dropped completely once you are charged with something.”

    That’s correct. Otherwise the city/county would face a false arrest lawsuit in many instances. The plea to “spitting on the sidewalk” wipes out that threat. Unfortunately, these lawyerless pleas to “minor” charges very often come back to bit the Defendant years afterwords.

  26. #26 |  MikeL | 

    This post is the front page story over at Balloon Juice.

    Where is your socialism now?

  27. #27 |  PomeroyPalouse | 

    Does the directory on the memory cards in the cameras work like the directories in Windows? I assume that it probably does since I can take the card out of my camera, put it in my computer’s card slot and read and view it.

    If so, then it’s likely that deleted videos and pictures probably aren’t, they’ve just had part of the card’s directory changed to show that the video/picture isn’t there. And there’s a lot of file recovery programs available both free and paid.

    Be nice to “recover the evidence.”

    John

  28. #28 |  Charles | 

    I can’t believe I’m the first person to point out in this thread that deleting a file from a memory card doesn’t actually erase it, it only means that the directory forgets where the file is. Can someone get in touch with Luna and take a look at the memory card on his phone? There’s a good chance the file is still there, and with the right software, the whole thing can be recovered. Surely it’s worth checking.

  29. #29 |  David | 

    It happens all the time. I got a ticket for illegal tinting on the windows of my car a year and half ago. After doing some research I was able to prove to the judge that although I had tinting, it was legal AND the officer who gave me the ticket did so illegally.

    Just to prove that the court system gets you no matter what, I was to be the first case up in the morning. I had spoken with the judge at my first appearance and was assured that taking 4 hours off from work would be MORE than ample time for her, the officer and myself to present our evidence and get a ruling. It was. the problem was that I was ordered not to leave the courtroom until my case was heard. ok, I’m up first. After waiting 20 min for the judge to finally open court I was told two other cases had been placed ahead of me. As a result of that and the fact that I was not allowed to leave the courtroom until my case was finished, 5 1/2 hours later, I returned to my car and found a ticket on it for expired parking meter. When I went to court for that one I was told that I should have planned ahead better. When I explained that my options were use the parking meter 6 blocks away from the courthouse (the closest I could find) or park in the city parking garage and pay $25 for the day because there was a convention going on I was told too bad. I tried to explain that the judge would not let me leave the courtroom so I could not have gotten out to feed the meter I was told I should have paid the $25. I had been unemployed for close to two years at that point so I couldn’t afford extra crap but they got me in the end anyway. Instead of paying the $65 for the tint ticket I paid $65 for a parking meter ticket. DO you know how hard it is to try and take time off from a new job to go to court when you’d been unemployed for so long? This country doesn’t work anymore but it’s still better than the alternatives… for now.

  30. #30 |  sigh | 

    This sort of stuff will keep happening as long as people keep showing up in court and paying the BS fines.

    Stop cooperating or stop complaining, pick one. They can’t throw any single one of us in jail unless we let them, and they can certainly never throw all of us in jail.

  31. #31 |  Hanspeter | 

    If PomeroyPalouse, Charles, and sigh actually read the linked article, they would notice that Luna was using an iPhone which DOESN’T HAVE a removable memory card.

  32. #32 |  The Tim Channel | 

    He was foolish to agree to the plea bargain. It’s just that simple. I wonder if he’s lost his right to sue for civil rights violations by doing so?
    Enjoy.

  33. #33 |  Rule By Overseer | The Libertarian Standard | 

    [...] Legal System,Police Statism,Statism,TotalitarianismRadley Balko highlights the ridiculous case of a man arrested for interfering with police for filming them while they are on the job. Considering a passive observer, filming an arrest, to be “interfering” must be a [...]

  34. #34 |  Kenshiro | 

    At least New Haven still settles lawsuits against their cops, unlike some places: http://lawblog.legalmatch.com/2010/11/15/chicago-police-stop-settling-cases-lawsuits-against-cops-plummet/

    So there you go New Haven residents, the money train is still flowing, all you have to do to get it is go through a little police brutality…

  35. #35 |  william c wesley | 

    there are so many unreasonable laws that any one of us can be arrested at any time for anything, a creative lawyer can twist the meaning of words to any end they wish.
    perhaps he threw a napkin on the floor that someone could slip on, that’s malicious mischief, or he yelled “WTF?????” when the police burst in, that’s instigating a riot and/or alerting criminals to withhold evidence. Perhaps he was lighting a cigarette outside and threw down a match. oops…attempted arson right there. If he were over the limit public drunkenness is charged, if he were not drinking than loitering is the charge.
    WE only have rights because the legal profession makes more money that way, they win no mater how it comes out, sometimes the defender wins and sometimes the prosecutor, but the legal profession in general always wins, its only clients that can lose.
    we are pawns in their money game. If he hadn’t agreed to the deal and someone on the force or in the courtroom took exception to his attitude he would have been singled out for ongoing harassment. He did what he had to do, they are ALWAYS RIGHT and if your actions make it appear otherwise you are in danger. He did what was nessasary
    our rights are little more than decorations on pieces of paper,
    in reality you are guilty until proven innocent unless your rich

  36. #36 |  Guilt by convenience | 

    [...] not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October [...]

  37. #37 |  Fascist Nation | 

    Sadly, Luna will probably regret taking the plea for the rest of his life. They always make it soooo easy for good people to take a plea. He will probably be on probation for six months to a year in which he had better stay out of trouble or its back to the charges for you.

  38. #38 |  Boston PD & Northeastern Univ. Police Harass Peaceful Photographers | Cop Block | 

    [...] In not too far away New Haven, CT those wearing badges aren’t just harassing peaceful photographers but arresting them. [...]

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