Markeshia Ricks Photos
Sepulveda handcuffed and detained in cop cruiser.
The state’s case was continued Monday against a reporter arrested while taking photos of a crime scene, while New Haven’s interim police chief ordered an internal affairs investigation into the case.
The reporter, David Sepulveda of the Independent, showed up at Superior Court on Elm Street on misdemeanor charges of interfering with police and third-degree trespassing, which carry penalties of up to a year in prison. New Haven police arrested Sepulveda on those charges Dec. 6 after they concluded that he had not responded quickly enough to their shouted orders to leave a spot across Whalley Avenue from where two pressure cookers had been left on the sidewalk.
Sepulveda, who denies the charges, plans to plead not guilty. He did not enter that plea on Monday; his case was continued until Jan. 19.
“I’m not offering a position as of yet,” said Assistant State’s Attorney Jennifer Lindade. “When I do, it will be on the record and you will know.”
The Connecticut Council on Freedom of Information Monday issued a statement saying that Sepulveda’s arrest “raises serious questions about whether the New Haven Police Department takes these constitutional and statutory rights seriously. We respectfully urge the New Haven Police Department to evaluate its handling of the incident in question and to publicly affirm its commitment to protecting cherished First Amendment rights, including those of working journalists.” The Connecticut Society for Professional Journalists also issued this statement proclaiming it is “deeply disappointed” in the arrest.
On Monday Interim Police Chief Anthony Campbell ordered his internal affairs department to conduct an investigation into the case.
Campbell said in an interview that he wants both to “get to the bottom” of differing accounts of the incident itself as well as to review subsequent decisions by supervisors to approve the filing of criminal charges.
In discussing the officers’ initial actions, he stressed the highly volatile nature of the incident. He emphasized the officers put their lives at risk to approach a reporter who was too close to potential danger. The pressure cookers were left outside the Westville public library branch and across the street of a synagogue. Although the objects later were revealed to be harmless, at the time there was reason to believe that they might have been left there as an explosive device.
“Let’s say this had been a bad car accident and the reporter is in the area trying to get footage, and there’s no real danger of imminent harm to the reporter or the officers. Then there’s a little more discretion,” Campbell said. “Due to the volatile nature of these pressure cookers and what they could do — and what we’ve seen in the past in Boston — it takes the officers to a heightened level of concern and anxiety. Those few seconds [when officers claim the reporter ignored a command to move], although they may be two or three seconds, may make the officer feel his command was not followed. We don’t want to get into a pattern of second-guessing” that.
After Sepulveda, who is 64 years old, was detained, officers immediately handcuffed him, threw him in a cruiser, removed his personal belongings, and then carted his camera away form the scene. And they charged him with the two offenses. Top Westville cop Sgt. Renee Dominguez was supervising that process.
A supervisor plays a key role in that subsequent process, Campbell said.
“That’s what supervisors are there for, to decide if an arrest is warranted, if there is an alternative … an arrest is a last resort. When we train them in community policing, we try to find all alternatives to an arrest. We really encourage them to try to see an arrest as a last resort,” Campbell said.
Discrepancies
When asked at the scene about arrests being a last resort, the arresting officer, Christopher Landucci, who reports to Dominguez, responded, “It doesn’t work like that.” (See his full account of the incident in the above video.)
Landucci wrote the official report for the arrest, which the Independent obtained on Monday.
Some of what the report states is agreed upon by both Landucci and Sepulveda: Sepuveda was inside a “hot zone” where the police were investigating a potential explosive device near the intersection of Whalley Avenue and Harrison Street. Sepulveda took photos of the pressure cookers. “The library, nearby synagogue and homes within that area have also been evacuated.”
Landucci’s report states that only after officers led Sepulveda a block away from the scene and detained him in the rear of a police cruiser, “it was later revealed Sepulveda was a member of the press, who was previously notified there was an active crime scene, not deemed safe to enter.” Sepulveda, who was wearing a tag attached to a lanyard around his neck clearly identifying him as a member of the press, said he immediately notified the officers orally that he was working for the Independent taking photos of the scene.
The officers claim he tarried before responding when they yelled at him to move. Sepulveda said he immediately started backing up toward them and called out to them that he was doing so.
David Sepulveda Photo
Photo Sepulveda shot from across the street.
Nowhere in Landucci’s report is there any mention of the fact that police took possession of Sepulveda’s Canon 7D camera and sought to obtain his memory card.
As usual in an arrest, police took possession of the objects on Sepulveda’s person. They kept everything but the camera at the car. Sgt. Dominguez then took the Canon and could be seen carrying it while walking up and down Whalley Avenue. The Independent was informed that the police had the camera because they considered it to contain crucial “evidence” of Sepulveda’s “crime” of interfering with police. The evidence would show that he was indeed taking photos.
After a half hour, and after speaking with her own supervisors, Dominguez returned to the cruiser where Sepulveda remained handcuffed and detained. According to Sepulveda, Dominguez said she would return the camera but would like to keep the memory card. When he declined, she then asked to be able to view the photographs on the camera. Sepulveda consented, showed her the photographs. He received the camera back along with his other possessions upon his release.
An expert in policy-press relations and handling of cameras, Mickey Osterreicher, said Monday that Dominguez’s handling of the incident “certainly raises questions.”
Osterreicher, general counsel for the National Press Photographers Association, has helped departments in Georgia and Arizona develop protocols for dealing with journalists and with cameras. He has helped train police departments in Philadelphia and other cities on the issue. He currently services on an advisory committee to the International Association of Chiefs of Police reviewing public recording of police.
Police are within their rights to hold onto people’s property while they’re under arrest, Osterreicher said. What concerns him is that while Sepulveda’s other belongings were kept at the site, a sergeant took the camera and walked around with it. Osterreicher said that under Fourth Amendment search and seizure protections, the police did not have the right to look at photos or handle the camera without a warrant. “I would question their motives. When you secure any property, OK take the camera, put it in the trunk, lock the trunk. Walking up and down the street with the camera in your hand — what would happen if they dropped or damaged it? That’s not securing anything. It’s doing the opposite of that. What was the purpose of walking down the street with the camera? If the guy is in the back of the cruiser, then you would lock the camera in the trunk of that same cruiser.”
He also questioned the sergeant’s request for the memory card, and then to have Sepulveda show her his photos on the camera, while he was still handcuffed and in detention.
“There’s some coercion to that consent. It’s not absolutely voluntary as far as I’m concerned when somebody is being held in handcuffs,” Osterreicher said. There was an implied “condition” that returning the camera could hinge on showing the photos.
Osterreicher also disputed the argument that police can seize a camera from a reporter without a warrant because photos from the camera might help prove that a misdemeanor had been committed. The three-prong “exigent circumstance” test established by the courts for such seizures requires that there be probable cause that a “serious crime” — i.e., a felony, not a misdemeanor — has been committed, that the officer has a “good faith belief” that the camera contains evidence of that crime, and that the officer also has “a good faith belief that absent the seizure, that evidence will be lost or destroyed.” All three conditions must be satisfied, he said. Under no circumstances would “interfering” or “trespassing” misdemeanors be considered “serious crimes,” he continued. And case law has held that in dealing with reporters, as opposed to civilians, there’s not a “good faith belief” that photos will be destroyed: “A case involving a journalist whose sole reason of being present is to gather, document and disseminate news — the likelihood of a journalist losing or destroying the image he took is pretty low.” But even after such a seizure a warrant would still be required for officers to search the device.
In this case, according to Officer Landucci’s written report, Sepulveda acknowledged that he was indeed taking photographs.