Civil rights debate rages over citizen's recording of officer

When Jennifer Gondola took out her cellphone and began filming an arrest outside Pulse, a New Haven nightclub, earlier this month, she probably couldn't imagine the uproar it would create. But it did.

In particular, it's led to questions and debate over the issues of civil rights.

Did Gondola have the right to film police Sgt. Chris Rubino, as he was subduing a man in the Temple Street courtyard, an action civil rights attorneys said is protected under the First Amendment? Did Rubino have the right to take her phone away after he caught her filming the incident? And did he violate her Fourth Amendment right concerning illegal search and seizure?

Gondola, of Ansonia, felt she wasn't doing anything wrong. Just before slipping the cellphone into her bra, she told Rubino it was her "civil right" to film the incident, according to an article in the New Haven Independent. She was charged with interfering with a police officer.

The matter is still being sorted out by the New Haven Police Department's Internal Affairs Division and the FBI, according to Lt. Tony Duff, who heads the IA division.

But civil rights attorneys agree with Gondola.

"She was well within her rights," said Norman Pattis, a New Haven attorney.

This case, and cases like it, are increasingly important in today's electronic surveillance society, where there seems to be cameras recording every move, he said.

Police want to capture everything we do, he said, pointing to those cameras on traffic lights. But when they are being videotaped, "they claim that somehow they are threatened."

"Is transparency a crime?" Pattis asked. "It's time to turn the cameras on the government," he added.

Pattis said another problem is how easy it is for someone to be charged with interfering with police, like Gondola, or with breach of peace as a result of videotaping an incident. He said they are "overused as excuses to deal with people when police have something to hide."

Rob Serafinowicz, a Waterbury attorney, agreed. He said the Rubino would not have been so quick to prevent Gondola from filming "if he wasn't doing something he shouldn't be doing -- if he was an exemplary officer."

Rubino declined comment, saying he will be retaining his own attorney in the next few days.

Serafinowicz said that filming police is probably the only way to hold them responsible.

But that's not so, said John DeCarlo, an associate professor of criminal justice at the University of New Haven.

"It doesn't take a video to keep police officers honest, the vast majority of them already are," said DeCarlo, a former Branford police chief and policing expert.

"I think that 99.9 percent of officers in this country have absolutely no concern about being filmed," he said.

DeCarlo said videotaping police officers has become a hot topic, one that's being addressed by law enforcement officials nationwide.

"It's become a real game changer," he said. "It's a brand new, emergent issue in policing that is creating situations that we don't have rules for yet."

In fact, there is no federal law on the books concerning this issue. But Serafinowicz said there doesn't have to be.

"The First Amendment -- the Constitution itself -- makes it clear people can videotape public officials if they want to," he said.

New Haven police do have a policy that permits "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 police."

Diane Polan, Gondola's attorney, said the policy will be used in her client's defense.

She said once the criminal case, which she called "ridiculous" and "bogus," is resolved they will consider pursuing a civil rights case based on the Fourth Amendment, which protects against unreasonable search and seizure.

Drawing the line

State Sen. Majority Leader Martin M. Looney, D-New Haven, has twice introduced a bill that would establish departmental guidelines governing the video recording of police activity by the public. "I think it's needed because we have seen a number of incidents where police have reacted poorly and improperly to people documenting their actions in a public place," Looney said.

The bill would make a police officer potentially liable for damages for interfering with a person taking a photograph, digital still or video image of either the officer or a colleague performing his or her duties.

There would be no liability if the officer reasonably believed that the interference was necessary to enforce a criminal law, protect public safety, preserve the integrity of a crime scene, among others, he said.

Those are generally considered situations when a police officer can ask a citizen to stop filming. "But it's still on a case by case basis," said Southington Police Chief Jack Daly, president of the Connecticut Chiefs of Police.

The American Civil Liberties Union of Connecticut supported the bill, saying it would memorialize what is an existing First Amendment right to record the police and set out clear, potential penalties subjecting police to lawsuits if they stop someone from recording police," said David McGuire ACLUC staff attorney.

"Generally, citizens in Connecticut, when in public spaces, have the right to videotape anything in plain view, including the police," he said. "We take the position that not only is that right grounded in the free speech provisions of the First Amendment of the U.S. Constitution as well as the Connecticut Constitution, but these kinds of recordings provide invaluable evidence at trial."

He said they not only protect the public from police brutality, but also protect police from false allegations that they were acting inappropriately.

But the bottom line, he said, is that police officers in Connecticut should know "there is a clearly defined right to record."

Looney said the bill passed in the Senate in the last two Legislative sessions, but didn't come up for a vote in the House.

He said he's spoken to members of the House and will try to get them to introduce the bill when the next session starts in January. He feels that, with the most recent incident involving Gondola, the legislation has a good chance of passing.

On May 18, the U.S. Department of Justice provided guidelines on how a police department should ensure that its officers respect civilians' First Amendment right to record them, according to Sally Roberts, a New Britain civil rights attorney.

"The DOJ wrote a public letter to the court in a lawsuit involving Baltimore police officers who seized a man's phone and deleted its contents after he recorded officers using force to arrest his friend (Christopher Sharp v. Baltimore City Police Department, et al.)," she said.

The DOJ's letter affirmed that recording police officers is a fundamental First Amendment right. The letter relies heavily upon the First Circuit Court of Appeals' decision in Glik v. Cunniffe. In that case, Boston police officers falsely arrested a man for illegal "wiretapping" because he used his cell phone to record an arrest on the Boston Common, she said. The federal court of appeals issued a landmark decision affirming the right to record the police, she added.

Roberts said Gondola's case is just another in a series of similar incidents nationwide.

"I applaud her courage for standing up for her civil rights," she said.

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