Police brutality in the iPhone era
Someone yells, “He’s not fighting, he’s not even fighting.”
Philadelphia Assistant District Attorney Carolyn DeLaurentis nursed a tall boy of Rockstar as she prepared to confront a problem too big for an energy drink to solve. In her closing argument, she would have to convince a jury that 31-year-old Askia Sabur assaulted Police Officer Donyule Williams on Sept. 3, 2010. But in her way was a devastating obstacle: a graphic, two-minute-and-29-second video showing Williams’ partner, Officer Jimmy Leocal, repeatedly beating Sabur about his head and body as he writhed on a West Philly sidewalk. It has been viewed nearly 150,000 times on YouTube.
“We are not asking you today to agree with everything you saw on that video,” DeLaurentis told the jury. “Don’t get distracted,” she implored them.
It was a lot to ask. After all, Sabur appeared to have been beaten severely and was left with a fractured arm and deep head wounds that would require six staples to close. Yet he had been charged with aggravated assault, disarming a law-enforcement officer, simple assault, recklessly endangering another person and resisting arrest.
In the end, the jury deliberated for less than one hour on Feb. 19, concluding so quickly they had to wait for defense attorney Larry Krasner to rush back from lunch. It was a good sign: Sabur was acquitted on all counts. It was the second-fastest verdict of Krasner’s career.
It was also, Krasner says, a sign of a sea change in Philly neighborhoods, where abuse at the hands of police is often considered a regular fact of life and the idea that justice will prevail is not the general assumption.
“Next to DNA, the democratization of gathering of evidence by means of the universal camera … the cell phone … is an enormous development in terms of the potential for real justice,” Krasner tells City Paper.
Cameraphone videos and photos have in recent years transformed the capacity for civilian oversight of law enforcement, from overthrown Egyptian President Hosni Mubarek’s attack on demonstrators in Cairo’s Tahrir Square to campus police’s nonchalant pepper-spraying of Occupy Wall Street protesters at the University of California, Davis. Material produced by citizen journalists has become a staple of mainstream reporting, and has even created iconic pop-culture moments like the Davis pepper-spray meme and the 2007 video of a student imploring University of Florida police: “Don’t tase me, bro!” That clip has been viewed a phenomenal 6.7 million times. More than anything, the videos confirm previously denied realities and stoke outrage. In 2009, cameraphones captured transit officer Johannes Mehserle shooting Oscar Grant to death on an Oakland subway platform. Riots broke out after Mehserle was convicted of involuntary manslaughter, but acquitted of second-degree murder.
And here in Philadelphia, such videos seem to be emerging at an accelerating rate. Indeed, less than a week before Sabur’s trial concluded, District Attorney Seth Williams’ office rested another case of alleged police brutality gone viral on YouTube. This time, however, the DA made the rare decision to actually prosecute the cop, Lt. Jonathan Josey, who was seen punching Aida Guzman in the face at a Fairhill street party following last September’s Puerto Rican Day Parade. The video was uploaded a day later and viewed more than 200,000 times. Within a week, Police Commissioner Charles Ramsey announced Josey’s firing and the DA dropped disorderly conduct charges against Guzman. Mayor Michael Nutter, who has long resisted reforming Police Department disciplinary processes, said he was “horrified.” But Municipal Court Judge Patrick Dugan, who happens to be married to a Philly cop, ultimately acquitted Josey.
National Fraternal Order of Police executive director Jim Pasco has warned USA Today that “the proliferation of cheap video equipment … has had a chilling effect on some officers, who are now afraid to act for fear of retribution by video.” It’s unclear if this is the case, since officers continue to commit abuses in public view. Indeed, police in Philly and elsewhere have been known to arrest citizen videographers and destroy cameras. And they still make allegations against brutality victims that are sometimes flatly contradicted by what’s caught on camera.
“Now, the story that might never have surfaced if someone hadn’t picked up his home video camera.” It was 1991, and ABC News anchor Peter Jennings was talking about what would become one of the decade’s biggest stories: Rodney King.
On March 3, a white man named George Holliday heard sirens and stepped out on his apartment balcony, where he saw a group of Los Angeles police officers beating King, who was hit more than 50 times after leading police on a high-speed chase. Doctors were surprised he survived. The next day, Holliday delivered a tape of the incident, made on his Sony Handycam, to local television station KTLA, which played it on that evening’s news. On March 5, CNN aired it for a national audience. It’s since been called the first viral video.
“This is history,” King’s attorney, Milton Grimes, later told CNN. “We finally caught the Loch Ness monster with a camcorder.”
Citing the video’s intensive media coverage, a judge moved the trial to suburban Simi Valley. On April 29, 1992, a jury that included no blacks acquitted three LAPD officers and declared a mistrial after deadlocking on charges against a fourth. The contradiction between verdict and video sparked the Los Angeles riots, which ultimately left 55 people dead. A federal civil-rights suit later secured convictions against two officers and prompted an effort to reform the LA police.
Public outrage had also followed televised recordings of officers turning dogs and high-pressure firehoses against civil-rights demonstrators in 1963 Birmingham, Ala., and the Chicago “police riot” against anti-war protesters in 1968. But the 1983 debut of the Sony Betamovie, the world’s first camcorder, marked something new. By decade’s end, camcorders had become ubiquitous, and Americans were beginning to record every detail of their lives. America’s Funniest Home Videos, which premiered in 1989, was inundated with as many as 2,000 tapes per day. It was only a matter of time before a camcorder-wielding American turned his attention from his living room to the street.
According to Pew, 87 percent of adult Americans own cell phones, and 44 percent of them use phones to record video. The percentage using phones to make video has more than doubled since 2007.
And YouTube and social media have democratized the distribution of video, just as the camcorder and, subsequently, the cameraphone revolutionized their recording. YouTube offers viewers a veritable mixtape of police brutality, including recordings from squad-car-mounted video cameras and fixed security cameras, like the one that captured Fullerton, Calif., police beating a homeless man to death in 2011. The footage can also, of course, help exonerate officers facing false accusations.
“Film doesn’t lie,” says University of California, Los Angeles, law professor Joanna C. Schwartz. “It really levels the playing field in various respects to have this image that cannot be cross-examined.”
But in Philly, the impact of such video on policing has been uneven.
In 2009, the Daily News’ Pulitzer Prize-winning series “Tainted Justice” found evidence that a rogue narcotics squad was robbing bodegas; reporters reviewed one store’s surveillance footage showing police attempting to disable a security camera. The officers, some of whom were also accused of sexual assault and fabricating evidence, remain on the force. In 2008, a Fox 29 helicopter videotaped Philadelphia police dragging three shooting suspects from a car and beating them. A grand jury decided against pressing charges, and an arbitrator overturned the firing and discipline of involved officers. The NAACP blamed then-District Attorney Lynne Abraham for sabotaging the prosecution.
And in Sabur’s case, despite what the video shows, the DA declined to charge Leocal or Williams. Instead, they charged Sabur — even though Internal Affairs, which often fails to sustain allegations against officers, found that Leocal had used excessive force. Later, the DA complained that the “video is only a portion of the incident, is inflammatory and is prejudicial,” and successfully requested that anything regarding the “investigation and any potential discipline of Officer Jimmy Leocal” be excluded from Sabur’s trial. Krasner had argued to the contrary: Leocal’s history — five other Internal Affairs excessive-force complaints, including one where his wife accused him of grabbing her by the throat and threatening her life — was pertinent. Leocal’s partner, Williams, also had five such complaints.
Sabur spent the last two years in jail waiting to clear his name. In the meantime, Krasner says the case bounced around a District Attorney’s Office that insisted on trying Sabur but where no prosecutor wanted to take on such a weak case.
The video was uploaded to YouTube two days after his beating, and was followed by protests, extensive media coverage and a City Council hearing on police brutality. But most views, according to YouTube data, came soon after the video was posted. Busy reporters moved on. Sabur is now free and has filed a civil-rights lawsuit against the city. The video will no doubt be played again for that trial, if the city doesn’t settle first (the administration, the DA and police would not comment on that case). Philadelphia taxpayers paid nearly $8 million in 2012 to settle claims lodged by alleged victims of police abuse.
The video begins with Askia Sabur and Officer Donyule Williams falling to the ground: Williams on his back, Sabur face down, and Officer Leocal on top of the pile wielding his ASP, a telescoping steel baton.
Leocal then administers three blows with his ASP around Sabur’s head. The loud cracks can be clearly heard above the crowd’s screams. “Yo, he down man, God!” the videographer yells. As Williams gets up, Leocal pulls his gun and wildly staggers in a circle, pointing his Glock 9 millimeter toward the gathering crowd and barking. “Get the fuck off the [or my] corner.”
Sabur, hunched over, staggers to his feet. A female officer and Williams hold him by the back of his shirt and then Leocal turns, grabs the shirt, and strikes Sabur’s lowered head twice.
“They trying to do, kill him?” a man asks. One man keeps yelling, “Askia, stop. Stop fighting, Askia.” DeLaurentis said this indicated Sabur had attacked the police earlier, off camera. What is on camera is this: Sabur holds his hands to his front, clearly not eager to be cuffed. But he never strikes police or makes threatening motions.
Leocal moves behind Sabur. Two officers grab Sabur’s arms and Leocal swings, hitting him in the back. He then places Sabur in a headlock.
“Yo, come up here, O.G. They fuckin’ Askia up, dawg!” a man yells.
Leocal hits Sabur across the side, and then once more around his head. As Sabur squirms on the ground, Leocol grabs Sabur by the neck. Sabur looks wildly at the crowd. “I ain’t do nothing wrong.”
Leocal then strikes Sabur again in the back as he sits on the sidewalk, his left arm in Officer Williams’ hand. The video ends as more officers arrive. Someone yells, “He’s not fighting, he’s not even fighting.”
It was the Friday of Labor Day weekend, and 95 degrees. According to Sabur’s cousin Shawn Merritt, Sabur rode up on a small BMX bike as Merritt was heading into a Chinese takeout with his girlfriend and daughter. The two men had not seen each other in a while. They stood chatting on the corner, catching up.
“When the cops pull up, they roll the window down and said, ‘Get the fuck off my corner,’” Merritt testified.
Merritt then got “a little smart.” He was waiting for food, he said, and it was hot inside. “Well, it’s hot at 55th and Pine,” the driver, Williams, responded, referring to 18th District headquarters. “I was a little upset, and I said, ‘Fuck that,’” Merritt recalled. Leocal and Williams exited their car and pushed the two men against the restaurant window. Merritt handed over his ID, and Sabur, reaching for his, asked the officers, “What did I do?”
“The police officer,” testified Merritt, “never gave him an answer.” Williams cuffed Sabur’s left wrist and tried to bring his right hand around his back. Sabur pulled back. He had an old shoulder injury from baseball. Leocal left Merritt and ran over. They grabbed Sabur by his neck and body and threw him against the squad car, and then onto the ground. Sabur then got up, and was thrown against the store window.
Leocal, whom Merritt described as “the short one” with “poppy little eyes,” then “pulled the ASP out” and “took the first strike. … Once the officer took the first strike, he never stopped.”
Inside the restaurant, Merritt’s baby began to scream. Sabur, he testified, never hit back. “He never had the chance.”
The police account was different: Williams accused Sabur of taking his baton and hitting him with it and punching him, all before the video begins. This occurred, they said, as Williams tried to place Sabur in cuffs. But they had trouble explaining what legal basis they had to cuff him in the first place. Initially, the officers reported they were going to arrest Sabur for “disorderly conduct.” At trial, they said that they only planned to detain him for “obstructing a highway” and write him a ticket, claiming his BMX was blocking the sidewalk.
Williams says he did not intend to take Sabur to the ground, but his knee gave out on uneven pavement. Was Williams sure, asked Krasner, that Leocal hadn’t pulled Sabur to the ground, and Williams with him? “He didn’t pull me to the ground.”
This is where the video begins, and Krasner played it four more times.
“He appeared to touch him,” Williams conceded.
On the stand, Williams also testified that he felt his holster jostled. Krasner pointed out that Sabur’s alleged “tug” at Williams’ gun was likewise not visible on tape, nor was any indication of Sabur hitting an officer.
Notably, the police did not initially report that Sabur took Williams’ ASP and grabbed for his gun. They only made the serious allegation once the YouTube video had gone viral.
“It’s not just about what’s on the video,” Krasner told the jury. “It’s about the way the police story changed after they knew there was a video.”
A second clip picks up where the first one ends, inconspicuously posted to YouTube as “Video from My Phone.” It shows a woman named Kimla Robinson taping on her phone, which Leocal then allegedly destroyed before arresting her.
“There is another missing video,” Krasner argued in court. “And it is missing as a result of police conduct.”
Prosecutors had tried to suppress the second clip in a pretrial motion, calling it “so prejudicial and inflammatory that the introduction and presentation to the jury eliminates any potential for a fair trial.” But the judge had ruled it could be introduced to rebut Leocal if he denied trying to destroy any cameras. Leocal did deny it, and the video, alongside a photograph of a broken red Samsung, was introduced as evidence.
DeLaurentis fruitlessly protested that she didn’t “want this case to turn into anything about Kim Robinson,” who, as it happens, is also suing the city.
After a recess, Leocal re-entered the courtroom smiling. The jury took their seats. Krasner cued the tape, and brought the courtroom back to West Philadelphia, 2010. Sabur had been arrested, and Robinson passed by. “I’ve got a camera,” she said. “I took a picture.” Leocal then rushed at the cameraman, as he walked backward. “Yo, don’t touch my camera,” he protested. On video, Leocal walks away as the man yells, “He a little beside himself right now. He got a lot of blood on him.” A few seconds later, Leocal grabs Robinson. “He doin’ it again!” the cameraman yells. “He goin’ crazy!”
Leocal testified that his “hand incidentally hit the [man’s] camera” as he tried to secure the scene. If he had wanted to take the camera, he added, “all I had to do was take it.” Krasner offered another explanation: Leocal is rather short, and the cameraman raised his phone high above his head as the officer harassed him.
As for Robinson, Leocal did not even recall if he had arrested her. He testified, “If I did” break the camera, “it wasn’t intentional.” He smirked. “I don’t remember destroying anybody’s phone.”
Merritt says his memory is clearer. “She was just recording,” Merritt testified of “Miss Kim,” a woman he sometimes bummed cigarettes from outside the laundromat. But Leocal tried to take her camera and cuffed her. He then “choke[d] her by her neck and threw her in the car.”
DeLaurentis did find one potentially redeeming moment in an otherwise damning video: Williams, after he tumbles to the ground with Sabur, is heard yelling what sounds like, “He fuckin’ bit me!” But the nature of that alleged bite, like other pieces of the officers’ story, changed over time — after the video went viral.
The night of the incident, Williams claimed Sabur bit him on his left side. But police did not photograph the alleged bite as they did other minor cuts and scrapes. Williams repeated this story at a preliminary hearing on Nov. 17, 2012, and to an Internal Affairs investigator on Jan. 13, 2011. But at trial the story changed: The bite was on his right side.
The details had evolved in a convenient if increasingly improbable manner: It would have required a bit of contortion for Sabur to reach for the gun holstered on Williams’ right hip while simultaneously biting him on his left. A bite to Williams’ right side would put Sabur’s hands more believably in the vicinity of Williams’ gun. It was, Krasner argued, a sloppy cover-up designed to justify the beating after the fact.
Sabur has had an unpleasant history with police. He had pleaded no contest to a 2002 Montgomery County burglary charge. The 2010 arrest, then, constituted an automatic “technical” probation violation. Sabur was placed under house arrest and then jailed after testing positive for marijuana use, according to his lawyer.
In the past, Sabur says, cops have spit on and hit him without provocation. “There was a lot of people out there, but I don’t think people had videocameras on their phone,” he says, recalling one such incident. “It was 2004.”
In 2010, Sabur saw people recording, but had no clue it was on YouTube until friends told him.“I was kind of relieved that I had some evidence,” he tells CP. Not that a public beating was the type of fame the West Philly artist desired. “I didn’t want to get on television that way. … I felt embarrassed.” But, he adds, “If there wasn’t a video, I wouldn’t be here today.”
He remains scared of police.
Nearly two months after Sabur’s arrest and beating, his cousin Tanya Yates was arrested at his grandfather’s house after police alleged they saw a shooting suspect run into her house, according to a separate lawsuit Yates has filed against the city. She and other family members were dressed in pink, having just returned from a breast-cancer fundraiser. Yates and her mom said police couldn’t enter without a warrant, and they allegedly returned to choke and hit her with batons. They allegedly threatened the 80-year-old grandfather with a beating. Yates contends that officers mentioned Sabur during her arrest.
Leocal is not the only cop who does not like being taped.
In September 2011, Commis-sioner Charles Ramsey issued a memorandum instructing officers to “not interfere with any member of the general public or individuals temporarily detained … photographing, videotaping or audibly recording police personnel.” This was nine months after police arrested Temple University journalism student Christopher Montgomery while he used his iPhone to videotape an arrest. An officer erased the video, according to an American Civil Liberties Union lawsuit filed in federal court in January, accusing police of systematically harassing and arresting civilians documenting police misconduct.
Rights groups nationwide have filed lawsuits to protect civilian videographers. Most have won, but not all.
In Philadelphia, Municipal Court Judge Kenneth Powell Jr. initially convicted Montgomery of disorderly conduct, telling him to “go tape people walking under the clothespin statue if you want to get a journalism award, but not cops.” His ruling was overturned on appeal.
The New York Civil Liberties Union has filed a lawsuit on behalf of Hadiyah Charles, who was arrested while filming three black youth undergoing a “stop and frisk” in Brooklyn in 2012. That same year, the city of Boston paid $170,000 to Simon Glik, arrested and charged with violating the state’s wiretap law for recording an arrest on his cell phone. Glik was acquitted, but “wiretap laws” prohibiting surreptitious recordings have been used to thwart citizen videographers in other states. In Glik’s case, the First Circuit Court of Appeals found that “though not unqualified, a citizen’s right to film government officials, including law-enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment.” But the court ruled there are limits to that liberty, such as recording covertly or taping during an “inherently dangerous” traffic stop.
The U.S. Supreme Court has found that the First Amendment protects a wide range of activities, including the right of nonjournalists to gather news. But while appeals-court judges often side with citizen videographers, the matter is not settled — and could remain that way until the Supreme Court rules. And there may not yet be sufficient conflict among appellate courts to compel the Supreme Court to take up the matter, says Jeff Hermes, director of the Harvard Law School Digital Media Law Project.
Last November, the high court declined to review a Seventh Circuit ruling against an Illinois law that made recording police a felony. Notably, Seventh Circuit Judge Richard Posner, one of the nation’s most prominent conservative jurists, dissented. During oral arguments, he fretted that “once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”
“Is that a bad thing, your honor?” the ACLU lawyer asked.
“Yes, it is a bad thing. There is such a thing as privacy.”
Posner’s logic is confusing, as many rights to privacy are considered shed once someone steps onto a public street. But his dissent echoed the district court ruling his colleagues overturned, which found that “there is nothing in the Constitution which guarantees the right to record a public event.” The Fourth Circuit also ruled against an established right, though inconclusively so, while the Eleventh Circuit has recognized such a right.
The Third Circuit, whose jurisdiction includes Philly, ruled in Kelly v. Borough of Carlisle that “the right to videotape police officers during traffic stops was not clearly established” at the time of the arrest in the case before them. But it has not yet answered whether there is such a right. The ACLU lawsuit on behalf of Christopher Montgomery cites numerous other incidents that took place in Philly both before and after Ramsey’s memorandum. It could ultimately give the Third Circuit another shot to firmly establish the right to record cops.
“When George Holliday recorded the beating of Rodney King, he taught us that ordinary people can use ordinary resources to fight police misconduct,” Pennsylvania ACLU executive director Reggie Shuford said in a statement when the lawsuit was filed. “It is essential that we preserve the right — and the tools — for holding our public officials accountable for their behavior.”
Follow him on Twitter: @DanielDenvir