As the FBI investigated New Haven police Sgt. Chris Rubino for his having seized a smartphone and arrested it’s owner for having committed no crime, he took to the media to defend his honor. From the New Haven Register :
A police sergeant at the center of Internal Affairs and FBI probes said he believed he had a legal right to seize a woman’s smartphone and the video it contained as evidence that police acted properly while arresting a man during a tussle outside a downtown nightclub.
“I did absolutely nothing wrong,” said Sgt. Chris Rubino, a 19-year veteran of the New Haven Police Department. “I did my job out there. Whether people want to believe I did otherwise, I can’t change that. People are going to believe what they want.”
The question usually asked is whether the police can seize the property of a person who did no wrong as evidence of a crime having been committed. Rarely do they argue the right to seize to the property of a bystander to show the police acted properly. In fact, I can’t recall another instance.
The concept opens entirely new horizons for police seizures.
I seized your car because you weren’t speeding.
I seized your money because it wasn’t criminal proceeds.
I seized your house because it didn’t contain drugs.
I seized your daughter because she didn’t get raped.
I seized your smartphone because it recorded me acting properly.
The possibilities are endless. The underlying allegations against Rubino are rather pedestrian.
A picture taken by another bystander shows Rubino with his foot on the head or neck of the arrestee. Rubino attempted to provide context to the image: The man hadn’t been handcuffed or searched for weapons yet and was spitting blood as officers attempted to take him into custody following a weekend incident behind Pulse Night Club. Rubino’s actions were intended to subdue an actively combative suspect, the sergeant said, as other officers took the man into custody.
If a cop doesn’t have the authority to seize a bystander’s video for “context,” how will he ever prove that his foot on the head of a blood-spitting arrestee wasn’t justified? Some might view it as, well, unnecessarily harmful, when the more appropriate conduct might be to cuff the arrestee and then search him without a good boot to the head.
But as Sgt. Rubino explains, non-cops can’t understand the pressures of the job.
“I did what I had to do. My job is to get me and my officers home every night” safely, he said.
As has been explained here numerous times, the public mistakenly views the function of a police officer to protect and serve. Just because they have cool stickers that say so on the side of police cruisers doesn’t make it so. Thus we have the First Rule of Policing : get home for dinner. Not you. The cop.
Once the First Rule is met, the police are free to make sure that any other concerns for their welfare are met, including securing whatever evidence might exist to demonstrate that they weren’t needlessly stomping on the head of some perp. After all, in the age of the internet, it wouldn’t do to find out via Youtube that they got caught on video again doing something improper or in conflict with their claims of necessity and propriety. It would make them look bad.
Rubino’s argument, however, flipped the point on its head.
He also rejected suggestions that police could have waited and asked the woman to turn over footage at a later time. While images of police acting inappropriately show up on the Internet, he said, when is the last time someone posted videos of police acting appropriately and doing their job in difficult situations, he asked.
“Has anyone ever, ever turned in evidence that was in our favor? he asked. “I asked her nicely three times. I’m not going to stand out there and play games. She’s the one who thought she knew the law.”
How much more does a cop need to justify a seizure? He asked nicely three times, and if ever there was a reason to seize and arrest the woman who owned the smartphone, it’s for not complying after he asked nicely three times. Seriously, what more could he do? Step on her head with his foot while he asked her nicely?
Of course, the woman asserted her right to record the police, or as Sgt. Rubino put it, “thought she knew the law.”
The woman stated that it was her constitutional right to film police, a position affirmed by the Justice Department. A New Haven police general order also assures citizens the right to film police doing their job.This is a common misperception, that statutes, court decisions, New Haven police general orders, even the Constitution, reflects the law. So many citizens get this completely wrong. The law is whatever Sgt. Rubino says it is, as reflected on the bottom of his boot on a blood-spitting perp’s head. The law is whatever Sgt. Rubino seizes from a bystander who thought she had a right to record the incident. The law is Sgt. Rubino gets to go home for dinner, and if there is evidence that he believes will make his life easier, the law is that he gets to seize it and arrest its possessor for not complying with his nice requests.
After all, if Sgt. Rubino wasn’t so certain of the law, he would never be so foolish as to defend his right to seize the property of an innocent bystander to cover his butt. That would be wrong.
Update: Via Fritzmuffknuckle of the famous Reddit Bad Cop, No Donut, this is the video of Sgt. Rubino and his boot:
No reason to speculate when you have the real thing in front of you. As far as I’m concerned, it doesn’t matter how many times Rubino tells the supine 24-year old Horace Rawlings to stop resisting, this isn’t going to win Rubino a medal. Whether it will get him a change of uniform remains to be seen.
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What is it qabout the badge that turns some people into things better associated with totalitarian regimes?
One hopes that ex-Sgt. Rubino gets a nice, long stretch at Allenwood to adjust his attitude.
The sad part is that the officer was not level headed enough to seize the phone (with or without a warrant) claiming it contained evidence of a crime, even just the inevitable resisting arrest charge.
BTW excellent snark today.
Thanks, but I can’t take credit. The snark just wrote itself.
Arrogant bastard.
Sorry, I know, it’s obvious; but I just had to.
To be fair, the thing about seizing the evidence to show that police “acted appropriately” appears to be th reporter’s paraphrase of somethig the sergeant said, but was not a direct quote.
The reporter may not have been sensitive to the nuance you were raising. I imagine that the sergeant (who appears to be advised) said that he seized the video because it might show the suspect spitting the blood.
This asserted “exigency exception” for seizing cameras is something that needs to be litigated. I don’t think the “exigency exception” should apply unless the cameraperson either: (i) won’t identify herself; or (ii) affirmatively indicates an actual intention to destroy the evidence. But, we need to have courts actually saying that and not just me.
A curious comment, given that you prefer to impute your own, utterly baseless, interpretation over the reporter’s paraphrase, who actually heard the statements. I can understand questioning the reporter’s paraphrase, but your being better able to magically divine the true meaning isn’t as easy to accept.
That said, the “exigency exception” requires probable cause to believe a crime has been committed as a prerequisite. Exigency alone is not an exception to anything. As far as I can tell. no one asserted the “exigency exception” except you, and you ought to be careful to only use words when you know what they mean.
I know that “exigent circumstances” requires probable cause. Arguably there was “probable cause” to believe that evidence of a crime was on the recording because the spitting of blodd might have been on the recording. Of course, if the facts are such that the policeman would have known that no spitting of blood was on the recording, then “probable cause” would, or at least should trip up the police here.
However, the reason I chose to attack exigent circumstances seizures of cameras on “unliklihood that the evidence would be lost grounds” rather than “probable cause” grounds is that in a typical case, there will arguably be evidence of a crime (eg, resisting arrest) on the recording. There may also be really, really strong reasons to believe that evidence of the policeman’s crimes are on the recording, which is also “probable cause.” However, even if evidence of resisting arrest by the suspect is on the recording, I still don’t want police to do an exigent circumstances seizure because they generally have no reason to believe the video and audio will be destroyed. This should not be taken to excuse the “probable cause” requirement in cases where the photographer tells the police that she intends to destroy the video.
As far as whether I understand the relationship between “probable cause” and “exigent circumstances,” here is something I wrote on May 30, 2012 (GOOGLE it if you don’t believe me):
There was an exigent circumstances / emergency exception case at the Supreme Court in 2006 (called Brigham City) where the probable cause that a crime had been committed and the probability that a serious injury occurred was manifest. By “was manifest” I mean that the policemen saw one of the occupanys of the house punch a teeneager so hard in the face that blood came out of his head.
In Brigham City, SCOTUS did not mention “probable cause” (that a crime had been committed) or probability that there was an injured person in the house. At the time it seemed like this omission in the SCOTUS opinion was merely because probable cause (or a crime) and probability of an injury were just so high and so obvious that no explication of this aspect of the legal analysis was needed.
Unfortunately, what pro-prosecutor commentators (most notably Professor Kerr), and even some judges, have done is said that probable cause is not needed for the exigency exception and that a “probability” of injury is not needed for the emergency exception. they say that they know this because Brigham City did not discuss these probabilities in that case.
So now the law of emergency / exigency is big mess (despite the best efforts of Rheinhardt in 9C),
There is an old saw that hard cases make bad law. But sometimes easy cases make bad law too.
So, yeah. I get it. Always have.
TL;dr
This should clear up any ambiguity as to why Sgt. Rubino confiscated the recording. From a New Haven Independent article dated June 8:
[Ed. Note: Link deleted per rules.]
“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.”