Title: Taxpayers to Be Held Liable After Cops Steal Man’s Phone, Film Themselves Conspiring to Frame Him Source:
Free Thought Project URL Source:https://thefreethoughtproject.com/t ... tand-trial-frame-innocent-man/ Published:Sep 29, 2019 Author:Matt Agorist Post Date:2019-09-29 10:58:38 by Deckard Keywords:None Views:21836 Comments:130
Hartford, CT — On September 11, 2015, journalist and police accountability activist, Michael Picard was illegally detained for lawfully open carrying and filming police on public property. During the illegal detainment, Connecticut state troopers confiscated his gun and his camera. However, the trooper who took the phone went on to make a critical mistake — he left the camera rolling while conspiring with fellow officers to falsely charge Picard. In 2017, it was revealed by the department that they investigated themselves and found they did nothing wrong when they conspired to frame an innocent man.
“They were exonerated,” police union attorney Mark Dumas said. “The troopers didn’t do anything wrong. They were doing their jobs, and they do an excellent job.”
Apparently this “excellent job” consisted of trampling the rights of an innocent person and conspiring to have them kidnapped and locked in a cage. Sure thing, Dumas.
Now, because the system failed to hold the officers accountable, the case is now a civil matter and the troopers involved have been ordered to stand trial in the civil suit brought on by the ACLU of Connecticut. The taxpayers, not the officers will be the ones to pay for the crimes.
The Free Thought Project spoke to the ACLU via email this week, who issued the following statement on the case.
“The Constitution is clear: people have a right to protest the police, and people have a right against police taking their property from them without a warrant,” said ACLU of Connecticut legal director Dan Barrett, who is representing Picard in the lawsuit. “The evidence, including video, will show that these police employees were more concerned with covering up their bad behavior, undermining free speech, and retaliating against a protester than with upholding the law. We look forward to getting justice for Michael in front of the jury.”
We agree. TFTP also spoke to Picard, who told us the following.
“People have the right to protest, including the right to protest police, without ticketing or retaliation against them. I am deeply disappointed that these police ignored my rights, and I am hopeful that the court will hold them accountable so that no one else has to experience what I did,” said Picard.
As TFTP reported at the time, on that September night, Picard and a friend were on public property and warning drivers of a DUI checkpoint ahead. They were several hundred yards from the checkpoint and not interfering at all when troopers drove up, without lights on, and against the flow of traffic, to begin harassing the two gentlemen.
Trooper First Class John Barone, Sergeant John Jacobi, and Trooper Jeff Jalbert falsely claimed that Picard was waving his gun around and pointing it at people. However, Picard was holding a sign the entire time and did not touch his gun. Also, as you will see below, the officers admit that they were lying.
“Police should be focused on public safety, not punishing protesters and those who film public employees working on a public street,” said ACLU-CT legal director Dan Barrett, who is representing Picard in the lawsuit. “As the video shows, these police officers were more concerned with thwarting Mr. Picard’s free speech and covering their tracks than upholding the law.”
Had Picard actually been waving a gun, these troopers would have approached the situation in an entirely different manner, with guns drawn and possible SWAT backup. However, they did no such thing, because there was clearly no threat from the activists.
The fact that there was no threat did not stop the subsequent assault, however.
Two troopers approached Picard while forcefully removing his gun and then grabbing his camera, falsely claiming it is illegal to film. When Picard informs the officer can legally film here, the officer ignorantly asserts that “It’s illegal to take my picture. Personally, it is illegal.”
“Did you get any documentation that I am allowing you to take my picture”? asks the cop.
When Picard attempts to explain to the aggressive officer that he doesn’t need a permit because he is on public property, the trooper then makes the asinine declaration that, “No I’m not (on public property). I’m on state property. I’m on state property.”
State-owned roadways and right of ways are public property. The trooper’s assertion that it is illegal to film on his ‘state property’ was entirely false and in violation of Connecticut Bill No. 245, which “protects the right of an individual to photograph or video record peace officers in the performance of their duties.”
All this aggressive and unlawful behavior of these troopers, however, was about to come back to haunt them. After illegally confiscating the camera — the trooper forgot to stop it from recording.
What happened next was a behind the scenes glimpse of what it looks and sounds like when cops lie to charge innocent people with crimes.
The corruption starts as an unidentified trooper begins to search for anything that these gentlemen may have done to make up charges against them. However, they were clean. At this point, Trooper first class Barone chimes in describing how they now have to charge these men with something to justify their harassment and subsequent detainment.
“Want me to punch a number on this? Gotta cover our ass,” explains the trooper as they begin conspiring.
“Let’s give him something,” says an unidentified trooper, pondering the ways they can lie about this innocent man.
“What are they going to do? Are they going to do anything?” says Sergeant Jacobi, noting that they are entirely innocent.
“It’s legal to do it,” he continues,describing how the actions of the two activists are completely legal, before going on to make up charges on them.
“I think we do simple trespass, we do reckless use of the highway and creating a public disturbance,” Jacobi says as he makes up these false charges against innocent people. “All three are tickets.”
Once they figure out the false charges to raise, the officers then brainstorm a story of lies to back them up.
“And then we claim that, um, in backup, we had multiple, um,” the unidentified trooper stutters as he makes up his fake story. “Um, they (the non-existent complainants) didn’t want to stay and give us a statement, so we took our own course of action.”
The corrupt cops had then solved their fake case, lied about a cover story, and were set to charge an innocent man with three crimes — all in a day’s work.
But there was just one more thing…. “Oh s**t!” blurts out the cop as he realizes their entire scandalous corrupt conversation was just recorded. Apparently, however, the officer felt that it must not have recorded their conversation as the phone was returned.
The cops then gave the innocent man back his weapon, and it’s back to the DUI checkpoint for them — to harass and detain more innocent people.
Picard explained that all of the troopers involved in his unlawful situation were never disciplined and allowed to progress through the ranks, with some of them retiring. Picard explains:
Trooper First Class John Barone, the trooper who said it was illegal for me to record him, seized my camera and recorded himself saying, “We gotta cover our ass,” is now retired and collecting a pension thanks to the taxpayers.
Sergeant John Jacobi is now retired and collecting a pension thanks to the taxpayers.
Master Sergeant Patrick Torneo, the trooper who said “let’s give him something,” and then helped fabricate a story to charge me, was demoted for reportedly driving drunk, but is now a lieutenant.
Lieutenant Stavros Mellekas, who conducted the internal affairs “investigation” and found that the troopers did nothing wrong, was magically promoted four ranks, and is now second in command of the Connecticut State Police.
All troopers are being represented by the attorney general’s office and their defense is being paid for by the taxpayers.
#19. To: Deckard, A K A Stone, Gatlin (#0)(Edited)
the case is now a civil matter and the troopers involved have been ordered to stand trial in the civil suit
Nobody has been ordered to stand trial. A trial has not yet been scheduled.
Here are the last four docket entries:
09/18/2019 94 ORDER: The parties are instructed to file a joint report within 15 days of this order the following information: Trial availability dates; estimated length of trial; and whether the parties would consent to magistrate jurisdiction. Signed by Judge Warren W. Eginton on 9/18/19.(Imbriani, Susan) (Entered: 09/18/2019)
09/18/2019 95 ORDER REFERRING CASE to Magistrate Judge Robert M. Spector for settlement conference. Signed by Judge Warren W. Eginton on 9/18/19.(Imbriani, Susan) (Entered: 09/18/2019)
09/19/2019 96 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic pre-settlement conference is set for 10/1/2019 at 02:00 PM before Judge Robert M. Spector. A date for the settlement conference will be set during the telephone call. As the Court requires parties or their representatives with settlement authority to attend the settlement conference, counsel should obtain dates of unavailability from their clients over the next 90 days and have their own calendars available to aid in the scheduling. During the telephone call, counsel should be prepared to discuss what information needs to be exchanged and anything else that needs to be accomplished prior to the settlement conference for the discussions to be productive. Please use the following dial-in for this call: (877) 873-8017; Access Code: 7040261. (Mallon, Kathleen) (Entered: 09/19/2019)
09/23/2019 97 MOTION for Reconsideration by John Barone, John Jacobi, Patrick Torneo. (Motherway, Carmel) (Entered: 09/23/2019)
Suit was filed 15 Sep 2016.
Named defendants on the Docket Report are Patrick Torneo, John Jacobi, and John Barone.
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
Some counts have already been tossed on Summary Judgment. Folks can stop making believe these are still before the court.
COMPLAINT at 11-12 recites the Counts and Prayer for Relief:
Count 1: Violation of Mr. Picard’s First Amendment Right to Receive and Memorialize Information
87. By interfering with Mr. Picard’s ability to use his camera and smartphone, the defendants violated Mr. Picard’s First Amendment right to receive and memorialize information.
Count 2: Violation of Mr. Picard’s Fourth Amendment Right Against Warrantless Seizure of his Property
88. By seizing Mr. Picard’s camera and detaining it without it without a search warrant or any reasonable suspicion that the camera contained evidence of a crime or was itself contraband, the defendants violated Mr. Picard’s Fourth Amendment right against warrantless seizure of his possessions.
Count 3: Retaliation Against Mr. Picard for His Expression
89. By detaining, searching, confiscating his belongings, and charging Mr. Picard with fabricated criminal infractions, the defendants violated Mr. Picard’s First Amendment right to document and protest government activity.
Request for Relief
90. Therefore, Mr. Picard is entitled to have this Court:
(a) enter judgment in his favor on all counts;
(b) award him damages, and punitive damages, for the defendants’ violations of his rights;
(c) order the defendants to reimburse him his reasonable costs and attorneys’ fees in conformance with 42 U.S.C. § 1988; and
(d) order all other relief as the Court deems appropriate.
91. Mr. Picard claims a trial by jury on all disputes so eligible.
09/16/2019 92 MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT denying 74 Motion for Summary Judgment; granting in part and denying in part 76 Motion for Summary Judgment; finding as moot 84 Motion to Preclude. Signed by Judge Warren W. Eginton on 9/16/19. (Imbriani, Susan) (Entered: 09/16/2019)
Doc 92 at 9-16:
Count One
Plaintiff maintains that defendants violated his First Amendment rights to gather information when Barone slapped his video camera to the ground as he approached plaintiff; and when Barone later took the video camera away for the duration of the encounter. Plaintiff argues that the law protects his ability to photograph or videograph what any passing pedestrian or motorist could observe with their senses.
Plaintiff relies on Supreme Court precedent establishing the right to gather information as protected by the First Amendment. SeeFirst Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); Stanley v. Georgia, 394 U.S. 557, 564-5, 568 (1969). However, the Supreme Court has also established that even in a public forum, “the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Neither the Supreme Court nor Second Circuit precedent has squarely established that an individual who is the subject of police activity has the right to record police performing their official duties.
SeeMcKenzie v. City of New York, 2019 WL 3288267, at *7 (S.D.N.Y. July 22, 2019). However, circuits that have addressed whether there is a right to record police activity “have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions.” Gerskovich v. Iocco, 2017 WL 323645, at *8 (S.D.N.Y. July 17, 2017) (“The First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have found that the First Amendment protects the right to record police activity.”); Higginbotham v. City of New York, 105 F. Supp. 3d 369, 379 (S.D.N.Y. 2015). The circuits that have recognized the right have indicated that such right may not be applicable in certain situations such as “in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation.” McKenzie, 2019 WL 3288267, at *7.
The Court will grant defendants' motion for summary judgment as to count one on the basis of qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability to the extent that their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects public officials from the risk of potentially ruinous monetary liability that would deter qualified people from public service, and it safeguards the public interest in having government employees act with independence and without fear of consequences. Eng v. Coughlin, 858 F. 2d 889, 895 (2d Cir. 1988).
A party is entitled to summary judgment based on qualified immunity if the court finds that the rights of the plaintiff were not clearly established or that no reasonable jury could conclude that it was objectively unreasonable for the defendant to believe that he was not clearly violating an established federal right. Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1996).
In the first stage of the qualified immunity analysis, the court must consider whether the facts, taken in a light most favorable to the plaintiff, could show a constitutional violation. Cowan v. Breen, 352 F.3d 756, 761 (2d Cir. 2003). If so, the court must determine whether the right in question was clearly established at the time the violation occurred. Saucier v. Katz, 533 U.S. 194, 201 (2001).
In determining whether a right is clearly established, the court considers whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002). To determine whether a particular right was clearly established at the time defendants acted, the court should consider:
(1) whether the right in question was defined with “reasonable specificity”;
(2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991). “When neither the Supreme Court nor this court has recognized a right, the law of our sister circuits and the holdings of district courts cannot act to render that right clearly established within the Second Circuit.” Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006).
Thus, a qualified immunity defense is established where: "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998). The doctrine of qualified immunity recognizes that "reasonable mistakes can be made as to the legal constraints on particular police conduct." Saucier, 533 U.S. at 205. However, qualified immunity applies if the officer's mistake as to what the law requires is reasonable. Id. Qualified immunity does not apply if, on an objective basis, it is obvious that no reasonably competent officer would have taken the actions of the alleged violation. Malley, 475 U.S. at 341. Summary judgment is appropriate when a trier of fact would find that reasonable officers could disagree. Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995).
Some district courts have held that in the context of a journalist, who is not subject to the police activity, the First Amendment right to record police activity in public is clearly established. SeeStolarik v. City of New York, 2017 WL 4712423, at *3 (S.D.N.Y. Sept. 7, 2017); Higginbotham v. City of New York, 105 F. Supp. 3d at 380. However, the instant plaintiff was not a journalist or even a bystander; he was a subject of defendants' investigation and performance of their official duties. Accordingly, plaintiff's right to record police activity or to record a police officer engaged in his official duties was not “clearly established” within this Circuit at the time of September 11, 2015, so that a reasonable defendant officer would have understood from existing law that his conduct was unlawful. SeeAnderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003); seealsoMcKenzie, 2019 WL 3288267, at *7; Rivera v. Foley, 2015 WL 1296258, at *9 (D. Conn. March 23, 2015) (qualified immunity granted on basis that right to record police officers engaged in ongoing investigation was not clearly established as matter of constitutional law). 2
Summary judgment will enter in favor of defendants on this claim.
2 Connecticut General Statutes § 52-571j(b) provides: “An employer of a peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer's duties shall be liable to such person in an action at law, suit in equity or other proper proceeding for redress.” However, this statute, which was not effective until October 1, 2015, does not create a clearly established First Amendment right to record police in performance of official duties.
Doc 92 at 18-19:
Count Three
In count three, plaintiff alleges that defendants charged him with the infractions to retaliate against his protected activities of protesting and/or recording police activity. Defendants argue that summary judgment must enter on plaintiff's retaliation claims because the defendants acted with probable cause; no evidence indicates that defendants' actions were motivated or substantially caused by plaintiff's exercise of his First Amendment rights; and defendants' actions did not chill plaintiff's First Amendment rights. They also assert that his claim of retaliation based on his recording of their activity must fail because it implicates no First Amendment right.
To state his First Amendment retaliation claim, plaintiff must show that: (1) he has a right protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by plaintiff's exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment. Curley v. Village of Suffern, 268 F.3d 65, 76 (2d Cir. 2001). “Chilled speech is not necessary if plaintiff can establish that he suffered some other concrete harm.” Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013).
As to plaintiff's claim of retaliation based on his First Amendment right to record the defendants in their official duties, the Court will grant summary judgment on basis of qualified immunity due to the lack of a clearly established First Amendment right to record police activity as articulated relevant to count one.
Doc 92 at 27:
CONCLUSION
For the foregoing reasons, plaintiff's motion for summary judgment [doc. 74] is DENIED; defendants' motion for summary judgment [doc. 76] is GRANTED as to count one and as to the First Amendment retaliation claim based on his asserted First Amendment right to record police activity in count three; defendants' motion for summary judgment is otherwise DENIED as to count two and three. The motion to preclude [doc. 84] is found to be MOOT.
Dated this 16th day of September, 2019 at Bridgeport, Connecticut.
