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.