by Paul Bass | Jun 8, 2012 5:01 pm

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

Posted to: Legal Writes

Federal agents will prepare a “mirror image” of Jennifer Gondola’s iPhone4 to see what happened on a violent night in the Temple Street courtyard.

Gondola’s attorney Friday faxed signed consent forms from Gondola to both the FBI and the New Haven police department’s internal affairs division giving them permission to review a video she shot on her cellphone camera before Sgt. Chris Rubino demanded she turn it over. Gondola refused and stashed the cellphone in her bra. Rubino ordered a female officer, Nikki Curry, to snatch the cellphone from Gondola’s bra. Then Rubino pocketed the phone and arrested Gondola for “interfering.”

The attorney, Diane Polan, also charged city police with violating her client’s Constitutional rights by grabbing her phone from her bra.

The incident—which occurred last Saturday at around 1:45 a.m. amid the usual late-night weekend havoc caused by patrons leaving downtown nightclubs—has become the subject of two investigations, both centered on Rubino’s actions. The FBI’s civil rights investigation, prompted by a photo (at left) published in the Independent of Rubino apparently stepping on a male arrestee’s neck, centers on whether Rubino and other cops violated the arrestee’s civil rights. The New Haven investigation also centers on whether Rubino’s actions violated a department policy (details here) against arresting citizens who photograph the police or snatching their camera. Rubino defends his actions, saying that he and fellow officers properly subdued an out-of-control suspect; and that he properly confiscated Gondola’s phone to preserve “evidence.”

Gondola said the video shows Rubino beating the suspect bloody after he was already in handcuffs. A second witness, Tamara Harris, told the Independent the same story. (Read about that in this story.) Rubino denied it.

Gondola (pictured), an Ansonia woman who had been leaving the Pulse nightclub when the incident occurred, still doesn’t have her iPhone back.

She told the investigators earlier this week that she wanted to consult an attorney before granting permission to inspect the phone and the video.

After retaining New Haven attorney Polan and discussing the case with her Thursday evening, Gondola signed the consent forms. Polan forwarded those forms to both investigating agencies on Friday.

“Miss Polan and her client have been cooperating,” reported Lt. Tony Duff, head of the IA.

Polan said she doesn’t know yet whether the video remains on the phone.

She said she hopes to inspect the video next week, when she expects authorities to return the phone to Gondola.

She also said there was a good reason she couldn’t inspect the video before the FBI gets to work on its “forensic examination” of the phone.

“They make a mirror image of what’s on the phone,” Polan said. “They don’t disturb the original, which is what they have to do to maintain the integrity of the evidence. I’m satisfied with that. They’ve promised to return the phone to my client, which I believe they will.”

Polan is no stranger to the New Haven department’s controversial handling of citizen photographers. She represents Luis Luna, whose camera phone was siezed on the orders of a then-assistant police chief, who then ordered Luna arrested and the footage he shot erased. The assistant chief, subsequently found guilty of violating department policy in an internal affairs probe, wasn’t assistant chief for long after that.

She noted that the department has a policy against doing what Rubino did to Gondola.

“The policy in the hands of someone like him is meaningless,” Polan said. “I’m not sure how they get policy enforced unless they make it clear through disciplinary actions that violations of the policy are not tolerated. I think that’s what the department is doing here. I think that’s what the department is doing here.”

Rubino (pictured) argued that he needed to preserve evidence of a crime by taking Gondola’s camera. He argued she might have erased the video before he could get a warrant for it, because, he claimed, it showed him properly arresting a man. Police Union President Arpad Tolnay defended Rubino this week with a similar explanation that he needed to preserve evidence of a proper arrest.

“I’ve done nothing wrong,” Rubino said in an Independent interview earlier this week. (Read it here.)

“I would never have let her leave with that phone,” Rubino said. “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.”

Gondola said lots of people had their cameras out recording the arrest of the man. She said police subsequently shooed photographers away. She remained to record Rubino kicking and beating the man after he was handcuffed, she said. She said she was recording the cop’s alleged crimes, not the suspect’s.

Attorney Polan said a larger question concerns whether an explanation like Rubino’s—that he needed to preserve evidence—can serve as an all-purpose excuse to basically stop citizens from photographing police.

“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 other people standing around there filming to ask him to give their cameras.”

Polan also said Rubino’s actions violated the U.S. Constitution’s Fourth Amendment, which protects 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.”

What constitutes “exigent” (beyond people’s lives being in danger) has been the subject of much debate over the years. It may well prove to be in this case, too.

New Haven State Sen. Martin Looney called it a “reach” to see Rubino’s as meeting any threshold for such “exigencies.” Especially since no true “emergency” existed to warrant the seizure; and because he had other evidence to make the case for the arrest, including the eyewitness accounts of other cops present at the scene.



Previous stories on this case:

• Rubino: “I’ll Be Vindicated”

• FBI Joins Beating Probe

• Sgt. Arrests Video-Taker; IA Probe Begins