25 June 2014

Filming the Police and the Blatant Disregard for the Law in Buffalo

Stephen Kershnar
Buffalo Police Ignore The First Amendment
Dunkirk-Fredonia Observer
June 23, 2014

There is a recent case in Buffalo that illustrates how nationwide, police are trampling on a basic constitutional right. The case involved SUNY-Fredonia philosophy professor Leonard Jacuzzo. Full disclosure: Jacuzzo is a long-time professor in my department.

The Buffalo News reported that on June 15, 2013, Jacuzzo was walking home and complained to a bouncer at a bar (Toro Tapas Bar on Elmwood) about the crowd spilling out onto the sidewalk making it necessary to walk into the street. The bouncer was an off-duty police officer with a dark polo shirt that had “police” on the back and the Buffalo police logo in the front. The bouncer told him that he should leave or he would be arrested. When Jacuzzo asked “On what charge?” the officer repeatedly shoved him, even as he was walking away. Jacuzzo then called the police station to report the incident. Someone at the station told him that he could take up the matter with the bar’s owners or file a complaint.

The next night, patrons again spilled out of the bar, so Jacuzzo took a picture of the crowd with his cell phone and his flash went off. Three off-duty officers were present and one was sipping from a glass. When the three angrily confronted him, they demanded to know why he took a picture. He stated that he had the right to do so. They then demanded to know whether he was the one the one who called the police station the night before. After he said, “yes,” he was thrown to the ground. Knees were placed on his chest and ear and his phone was wrenched from him. He was then handcuffed and told he would be charged with obstruction. After being put in handcuffs, Jacuzzo claims, he was choked, slapped in the head, and one of his beers was opened with the suggestion that he should be charged with violating the open-container law.

A witness and former Jacuzzo student claimed that Jacuzzo was a mess. He tried to take his own phone record of Jacuzzo, but was told by one of the officers that he would could go to jail (presumably for taking pictures or video). His phone was then taken from him and the pictures deleted.

Jacuzzo was later charged with harassment, trespassing, disorderly conduct, and public drinking. The latter two charges were immediately dropped and the trespassing made no sense as he wasn’t inside the bar. Eventually, the remaining charges against Jacuzzo were adjourned in contemplation of dismissal.

In another Buffalo bar (Molly’s Pub), the off-duty police officers/bouncers were present and a patron was pummeled, kicked, and pushed down the stairs, causing him severe brain damage. One of the officers investigated for being part of the assault was already under investigation for slapping a video out of the woman’s hand and stomping on it. All this happened, The Buffalo News pointed out, despite the fact that it is illegal for police to provide security for bars (or other businesses involved in the sale or manufacture of alcohol). That is, the off-duty police officers for Toro Tapas and Molly’s were illegally moonlighting.

In yet another high profile case, The Buffalo News reported, Buffalo police officer John Cirulli knew that he had been recorded smacking a handcuffed defendant. He then insisted the citizen who recorded it erase the recording. The citizen convinced Cirulli it was erased, when it wasn’t.  

In 2011, a Rochester, New York woman was arrested for filming a police stop from her own front yard. As in so many cases, the woman was arrested for obstruction, with the officer making the ridiculous claim that her recording made him feel unsafe. The charges were promptly thrown out on First Amendment grounds.

In 2010, Adam Cohen, writing in Time, reported that a New York City police officer was videotaped going up to a man on the bike and shoving him to the ground. The officer claimed the cyclist was trying to collide with him, but the video showed this was a lie. Eventually, the officer was thrown off the force and convicted of filing a false report. This would have happened but for the recording.

Despite these activities, it is clear that in New York and 47 other states citizens are permitted to record police in public so long as they do not interfere with their work and do not do so secretly. This is likely true in every place in the U.S., regardless of state law, because the First Amendment protects the recording. In Glik v. Cunniffe, 655 F.3d 78 (2011), the First Circuit (federal appellate court for Massachusetts and neighboring districts) held that there is a constitutionally protected right to videotape police carrying out their duties in public. The court argued that gathering information about government officials in a form that can shared with others is an important part of allowing citizens to discuss how the government is doing its job. It noted that protecting this discussion is at the heart of the First Amendment. The court further argued that that filming police officers doing their jobs when on public spaces is just such a gathering of information. The court observed that this right has been widely recognized elsewhere, for example, by the 7th, 9th, and 11th  circuit courts.

Nor, the American Civil Liberties Union (ACLU) points out, can the police block the videotaping by claiming that all parties must consent to taping (inapplicable to New York, which does not require this), because in nearly all states this applies only when there is a reasonable expectation of privacy and no state court has held that police officers doing their job in public have a reasonable expectation of privacy.

The ACLU reports that police may confiscate a camera if they have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the officers themselves (it is controversial whether they need a warrant to view them), but them may not delete the photographs or video under any circumstances. Nor, it notes, can the police order people to cease activities that are not interfering with a law enforcement operation, for example, when filming at a reasonable distance.

In the Buffalo case, it is important that the officers involved be fired. Not merely for their acts of battery and false arrest, but also because their knowledge of the law is completely inadequate. We should see how tough they really are when up against correction officers. The Buffalo Police Commissioner Daniel Derenda should be promptly fired and his name blackened so he is never hired again. He failed miserably to ensure that his officers not systematically violate people’s basic rights, file blatantly false charges, follow the law on moonlighting, and, in general, refrain from acting like the Crips and Bloods. Far too many Buffalo police officers have earned our contempt.   

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