by Paul Bass | Aug 16, 2012 4:10 pm

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Posted to: Legal Writes

A police sergeant violated department rules by standing on a handcuffed suspect’s neck.

The sergeant also showed “poor judgment” by arresting a woman who video-recorded the scene and refused to hand over her cellphone camera. But he didn’t break any department rules—because those rules are worded so poorly.

So concludes an internal affairs investigation into the actions of Sgt. Chris Rubino in the early hours of June 2.

Rubino arrested an out-of-control man in the Temple Street courtyard that night as bars let out. He also arrested a woman who refused to hand over a cellphone camera to him after she recorded a video of his actions; Rubino ordered a female officer to remove the camera from the woman’s bra. (Click on the play arrow to watch the video.)

Based on the internal affairs report, Chief Dean Esserman has suspended Rubino for 15 days without pay for using excessive force. Rubino started serving the suspension, in two-day-a-week sections, on Aug. 3.

“The foot on the neck is an improper and unacceptable tactic by any officer,” Esserman said Thursday.

Asked Thursday about the report and the suspension, Rubino said, “I have no comment whatsoever.” Rubino told the Independent in a previous interview that he did nothing wrong; he said he was dealing with an out-of-control suspect and acting to preserve crucial video evidence in a criminal case. He predicted the internal investigation would vindicate him.

It didn’t.

Instead, the July 19 internal affairs report, written by Detective Tammi Means, added to Rubino’s bulging misconduct file. This is the sixth internal probe that has found him guilty of misconduct; a seventh cleared him. (Read about that here.) The FBI originally took a “preliminary” look at whether to launch a civil rights investigation into the incident, then concluded that it was more appropriate for the city cops to investigate it.

The police union’s president defended Rubino Thursday and said his organization is appealing the suspension.

The New Haven internal investigation into the June 2 Temple Street incident produced a conclusion quite different—in two ways—from what observers predicted.

Means found that Rubino “appeared” to have “used poor judgment when he decided to seize [the] cell phone” of an Ansonia woman named Jennifer Gondola, whom he arrested for “interfering” and whose camera he seized. But after reviewing analyses from national experts, Means concluded that the policy is rife with loopholes. Therefore, Rubino was not found to have violated any rules by seizing the camera.

Esserman Thursday called Rubino’s conduct over the camera “lawful but awful.” The chief said he will re-write the department’s policy on cameras to protect citizens’ rights to record the actions of police in public.

Meanwhile, Means concluded that Rubino did use excessive force in his handling of Horace Rawlings, the bar patron who had allegedly resisted arrest by Rubino and other cops trying to maintain order in the frantic Temple Street courtyard after the clubs let out.

With the public’s help—including this photo taken by another witness, Tamara Harris—police internal investigators ascertained that Rubino improperly stepped on Rawlings’ neck after he was under control.

The report found that Rawlings had acted belligerently in resisting arrest in the courtyard, when he defied an order to clear the area. Rawlings was asking for information about the detention of his cousin, who had allegedly inappropriately touched a woman inside the Pulse nightclub. Rawlings allegedly fought back against cops who arrested him for refusing to leave the area. (Click here to read Rawlings’ version of his arrest. The night after his arrest, police arrested him again at a downtown club.)

“Lock Up System”

Once the cops had him in cuffs, Rubino shouldn’t have placed his foot on Rawlings’ neck, the report concluded. Rubino told investigators that Rawlings was still resisting arrests while handcuffed, standing up and making moves that could lead to more fighting with police.

Internal affairs investigators interviewed New Haven training officers who reviewed videos of the incident posted on the Independent website. They concluded that there was no evidence that Rawlings was resisting by standing up. They further asserted—and Means concluded—that Rubino acted in violation of General Order 300, which states that “officers shall use only that amount of force that is reasonably necessary to achieve a lawful objective.”

“Sgt. Rubino stated he placed his foot on the back of Rawlings’ neck to pin him to the ground. Rawlings was handcuffed and face down on the ground at that time. Rawlings was not actively resisting,” Means wrote, echoing a conclusion Jennifer Gondola made to investigators and in a subsequent Independent interview. “The position of Sgt. Rubino’s foot on the subject’s neck was consistent with that of the use of deadly force.” Cops are trained in New Haven not to step on necks because that can potentially kill someone; the report did not suggest that Rubino was trying to kill Rawlings.

Rubino further “potentially lowered the morale” and “discredited” the department by his actions, in violation of Rule 15, Article 5 of the order; and failed to call for medical assistance after Rawlings asked for it, the report concluded.

The report quotes Officer Robert Strickland, an instructor at the police academy, stating that Rubino and another officer, Josh Kyle, took actions that the department doesn’t “condone” in restraining Rawlings.

“Subjects that are down in a prone position are brought to their side then to a seated position, then to the knee and then to their feet. This allows control of the subject which will not allow them to fall or become combative,” Means wrote about her conversation with Strickland. “The [Arrest and Control] Lock Up System [instructs officers] on how to control a subject in the prone position securing an arm and a knee to the shoulder blade. This method is taught and demonstrated as a means for officers and supervisors to use in the field.”

Kyle was not disciplined.

Strickland did note that earlier in the encounter, “when Officer Kyle and Sgt. Rubino struggled on the ground with the subject, they showed great restraint and great control when applying the handcuffs.”

Police union President Louis Cavaliere Jr. Thursday called Rubino’s actions “totally justified” and said his group filed an appeal.

“Hopefully we’ll win his days back,” Cavaliere said. “He had his foot on the kid’s throat. The video doesn’t show the kid was spitting blood at the officers.

“It never looks good on video. Sometimes you’ve got to hear the explanation. People don’t put their foot on people’s throats for no reason.”

Porous Order May Have “Led” To Seizure

When it came to seizing Jennifer Gondola’s cellphone camera, training, or lack of it, might have been part of the problem.

At least, that’s the sense of the report.

That portion of the report centers on police General Order 311. Then-Chief Frank Limon issued the order last year to try to prevent precisely the kind of action Rubino took on June 2 with Jennifer Gondola. He issued it after a former assistant chief was found to have acted improperly when he arrested a citizen for video-recording an arrest, seized his cellphone camera, and erased his files.

But his staff wrote the order with two loopholes as wide as New Haven Harbor, and in this case it may have backfired.

“It is the policy of the New Haven Department of Police Service to permit video recording of police activity as long as such recording does not interfere with ongoing police activity or jeopardize the safety of the general public or the police,” the order reads. “The video recording of police activity in and of itself does not constitute a crime, offense, or violation. If a person video recording police activity is arrested, the officer must articulate clearly the factual basis for any arrest in his or her case and arrest reports.”

Chief Esserman heard about the loopholes in a June 18 letter he received from the national Press Photographers Association as part of the investigation.

The letter, written by association General Counsel Mickey H. Osterreicher, called the order “overly broad and vague.”

The language “leaves far too much unbridled discretion, which may have in turn led to this incident,” Osterreicher wrote.

He attached a letter from the U.S. Department of Justice about a similar case. That letter stated that “policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. [P]olicies should include language to ensure that consent is not coerced, implicitly or explicitly” when asking to review people’s camera footage or seizing their property.

“Law enforcement agencies are established to uphold and enforce existing laws not to use them as a pretext to punish someone exercising their free speech right to take photographs in public,” Osterreicher wrote. “This activity is protected by the First Amendment and many not be restricted by officers wishing to avoid the documentation of their actions. This [the Rubino case] is just the most recent incident in a rash of similar police abuses across the country.”

He was referring to Rubino’s pretext of claiming Gondola “interfered” with him by refusing to hand over her camera. That’s Loophole #1 in the city general order, which offers the undefined “interfering” lifeline for officers.

Loophole #2: Rubino “clearly articulated” his “factual basis” for the arrest, as stated in the general order: He needed that evidence, he claimed. It would help convict Rawlings of a misdemeanor charge. Even though in fact the video shows what happened after his arrest; and despite the fact that a large crowd of people, including numerous police officers, witnessed the arrest firsthand and could offer strong evidence.

That’s why Gondola’s lawyer, Diane Polan, called the arrest of her client such a threat to the public’s right to hold police accountable. She argued that it violates both the First and Fourth Amendments to the U.S. Constitution. The need to preserve evidence can serve as an all-purpose excuse to basically stop citizens from photographing police, she said in a recent interview. (Read the full original version in this story. Polan was out of town Thursday and unavailable for comment on the internal affairs report.)

“If in fact that is interfering with an investigation, then the First Amendment right is completely meaningless,” Polan said. “The First Amendment is going to lose every time. They can say to you, ‘What you filmed is evidence in an investigation. Your refusal to turn it over is interfering.’ If you follow that logic there is no way a citizen can ever film. The other problem is that he didn’t ask any of the other people standing around there filming to ask him to give their cameras.”

Polan also said Rubino’s actions violated the Fourth Amendment’s protection against unreasonable search and seizure. Police have the right to seize property without a warrant only under “exigent” circumstances. Polan, who has experience handling drug cases and federal civil rights complaints, said one “classic” exigent circumstance involves people flushing narcotics down a toilet. “This is not contraband!” she said of Gondola’s cellphone. “And reaching into her bra to take the camera—that [in itself] is a Fourth Amendment violation, in my opinion.”



Previous stories on this case:

• FBI Drops Rubino Probe

• IA Probes Camera-Grabbing Cop For 7th Time

• State Wins Delay To “Research” Camera-Grabbing

• Video-Recorded Arrestee Disputes Police Account

• FBI Gets OK To Inspect Cop-Filmer’s Phone

• Rubino: “I’ll Be Vindicated”

• FBI Joins Beating Probe

• Sgt. Arrests Video-Taker; IA Probe Begins