On the night of Sept. 11, 2015, Michael Picard stood near the site of a police DUI checkpoint in West Hartford, CT, with a handwritten sign reading, “Cops Ahead: Keep Calm and Remain Silent.” Picard regularly protested DUI checkpoints, as he believed they violated the Fourth Amendment and were a waste of money.
Picard was such a regular fixture at police checkpoints that an employee of the Hartford Police Department informed the Connecticut State Police that Picard would very likely be present on Sept. 11, and that he was harmless despite lawfully carrying a handgun.
That night, however, three state police officers detained Picard, seized his camera and inadvertently recorded themselves fabricating charges against Picard to justify the stop. Prosecutors dropped the charges—creating a public disturbance and negligent use of the highway—in July.
In a lawsuit filed Thursday, the American Civil Liberties Union (ACLU) of Connecticut alleges the three officers—Patrick Torneo, John Jacobi, and John Barone—fabricated the criminal charges against Picard because, as Barone said on the recording, “Gotta cover our ass.” The ACLU claims the officers violated Picard’s First Amendment rights to protest government activity and to record in a public space, as well as his Fourth Amendment right against warrantless seizure of his property.
The Connecticut State Police declined to comment, citing an ongoing investigation.
Dan Barrett, the ACLU of Connecticut’s legal director, told me the case was a watershed for police accountability because it provides concrete evidence for how much reality can differ from official police accounts. “As we’ve seen over the last 18 months with the proliferation of recording devices, encounters with police go quite differently than how police themselves describe the encounters,” he said.
The United States has a long history of allegations of police perjury and unjustified arrests. In a 2011 article for the San Francisco Chronicle, former San Francisco police commissioner Peter Keane described police perjury as so commonplace that it was “the routine way of doing business in courtrooms everywhere in America.” And in 2012, Bronx District Attorney Robert T. Johnson found that false reports of trespassing on public housing projects were so widespread, he instituted a policy requiring police to justify all such arrests in a formal interview.
Until recently, it’s been difficult to prove police statements false, but the ubiquity of cellphones capable of recording video, as well as the spread of dashboard and body cameras has changed that. In the last few years, we’ve seen case after case where initial police reports are later contradicted by video evidence.
One notorious example was the arrest—and subsequent death—of Sandra Bland. In his original affidavit, former Texas state trooper Brian Encinia claimed he had removed Bland from her car to more safely conduct his investigation, and that she then kicked and elbowed him. But video from Encinia’s dashcam contradicted his claims, instead suggesting that Encinia had arrested Bland for the non-crime of being disrespectful.
“There is abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who ‘disrespect’ them or express disagreement with their actions,” civil rights attorney Christy E. Lopez wrote in a 2010 issue brief for the American Constitution Society for Law and Policy, a progressive legal organization often described as the counterpart to the conservative Federalist Society.
“There is considerable evidence that [disorderly conduct-type statutes] are used disproportionately against persons of color.”
She cited as an example the 2009 arrest of Harvard University professor Henry Louis Gates, Jr., for disorderly conduct after a neighbor incorrectly told police that Gates was burglarizing his own home. “Despite its illegality, the arrest of Professor Gates was not unusual. This scenario—an individual being arrested after responding obstreperously to perceived police misconduct—is one that plays out routinely across the United States,” Lopez wrote.
With video evidence calling police accounts into question, the public now appears to be less willing to take their statements at face value. According to an article by Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts, “It is likely that both grand and petit jurors will show less deference to police testimony, at least in situations in which there is or should be supporting video evidence.”
Indeed, in several recent cases, juries have declined to find defendants guilty without corroborating video. With public confidence in the police now at the lowest level since 1993, this trend won’t likely reverse itself soon.
This public distrust of police testimony has not, however, extended to prosecutions of police officers for misconduct. Grand juries declined to indict officers in a number of high-profile police shootings, including the deaths of Michael Brown, Eric Garner, and Tamir Rice.
Although Picard’s lawsuit probably won’t make it easier to get indictments, it may help discourage lying among police officers. It’s now “easier to see what actually happened, rather than relying on what police said actually happened,” ACLU of Connecticut’s Dan Barrett said.
And in a case like Picard’s, that can be critical.
Charles Paul Hoffman writes about comics, pop culture, and the law. He enjoys talking about Michel Foucault and how culture constructs societal norms.