The December 7, 2014, New York Police Department CompStat report found that the number of shooting incidents in the city was up 4.5 percent year over year, while the total number of shooting victims was up 5.5 percent — not a great showing for the first year of Mayor Bill de Blasio, the first Democrat to occupy the newly fortified Gracie Mansion since the 1990s. But there was one good bit of news: The NYPD has brought a criminal case against one of Gotham’s most dangerous nemeses: the Penguin.
“Yeah, I’m the Penguin,” says 60-year-old Randy Credico, a comedian, radical activist, and frequent political candidate — most recently challenging Governor Andrew Cuomo in the Democratic primary — who in August was brought in on five felony charges, including three counts of menacing police with . . . a $1 bodega umbrella. Credico, a protégé of the late left-wing lawyer William Kunstler, was taking video of police questioning a man at the Van Cortlandt Park train station. In his account, three non-uniformed men displaying no badges were “shaking down” an elderly African-American man on a station bench. Credico was on his way to a newspaper interview to talk up his protest candidacy: “I was in a hurry,” he says, “but I couldn’t resist. So I started taking pictures. It wasn’t even clear they were police.”
They were, and by the time the encounter was over, Credico had five charges on him: three counts of menacing police, one of obstruction of government administration, and one of resisting arrest. “They always throw in resisting arrest,” he says. In his telling, he was seated across the platform from the police when the encounter began, and he did not approach the police — rather, they approached him. “The guy got one inch away from my face,” he says. As for his menacing the police: “They’ve got Glocks, and I’m going to screw around with an umbrella?” he scoffs.
Again, this is all from Credico’s version of events, and Credico is a longtime activist with his own point of view and his own agenda. He has been arrested before for photographing arrests and stop-and-frisk episodes, and was arrested alongside Princeton celebrity professor Cornel West during a protest blockade of the NYPD’s 28th Precinct house in Harlem. The NYPD might tell a different story when Credico’s case comes up in January, though the department did not avail itself of the opportunity to do so for this piece. Though it would not necessarily be dispositive, what would be of some value here is documentary evidence of what transpired between the police, the man they were questioning, and Credico. But there is no such evidence: After keeping his phone for several weeks, the police returned it — and there was no video evidence of the encounter on the device.
Video evidence has been used to condemn police, notably during the Rodney King arrest in Los Angeles. But it also has helped to exonerate police: In 2000, police in the Philadelphia suburb of Lower Merion shot and killed robbery suspect Erin Forbes in a racially charged case with striking parallels to the Michael Brown shooting in Ferguson. But many would-be critics were swayed by a video of the shooting taken by a camera on a police cruiser. Given that police-car cameras were installed as much to protect police as to protect the public — accusations of sexual harassment and other misconduct during traffic stops are common — one would think that police would welcome video evidence of how they go about their business.
But Credico’s run-in with the police is not an unusual story: Prosecutors across the country, from Massachusetts to Texas to Illinois, have brought wiretapping cases and levied other criminal charges against activists and interested bystanders for the non-offense of making records of government employees purporting to be public servants going about the public’s business in public. These cases are routinely dismissed. When a Texas activist was prosecuted after photographing a drunk-driving arrest, the city of Austin, which revels in its self-professed liberalism, joined Texas police unions in arguing that there is no constitutional right to document police business in public and attempted to have the activist’s subsequent lawsuit thrown out. The U.S. magistrate’s court saw things differently. In Illinois, another bastion of self-styled progressivism, an anti-recording law used to prosecute activists monitoring traffic stops was thrown out by the state supreme court, only to be reincarnated in a substantially similar recording law passed in December, one with overly broad provisions that will leave those recording arrests open to felony charges.
Pete Eyre, an activist with the police-monitoring group Cop Block, was run in on wiretapping charges for videotaping inside the Franklin County jail in Massachusetts, where he had gone to bail out a friend. (Eyre and I worked together some years ago; if you want a feel for his politics, consider that he recently paid for a medical procedure with Bitcoins and gold, and that his forearms are tattooed with a Barry Goldwater quote: “Extremism in Defense of Liberty Is No Vice.”) He and a colleague faced a raft of criminal charges, all but three of which were dropped before trial, at which point the jury acquitted them on the remaining counts. Eyre takes this as an example of the unhealthily asymmetrical relationship between citizen and state: “We were found not guilty, and some people say that’s a win. But that took a lot of time and effort for us, but there were no repercussions for the police.”
#page#The secrecy instinct is deeply entrenched in police forces, as it is among most government agencies, and police unions have been especially energetic in resisting oversight proposals, arguing that measures such as citizen-review boards “weaken the crime-fighting efforts of the police” and that officers are victimized by “engrained anti-police bias,” as a recent paper from the Center for Public Policy at Cal State–Fullerton put it. A 2004 federal investigation into systematic abuse of prisoners at California’s Pelican Bay prison found that the correctional officers’ union punished whistleblowers, enforced a mafia-style code of silence, protected and rewarded abusive officers, and was a powerful political brake on reform efforts. Meanwhile, conditions written into the union’s collective-bargaining agreement made internal investigations “almost impossible.” The union is a political powerhouse that in some elections outspends the mighty California teachers’ union — which has ten times the membership. It put more than $1 million into Democrat Gray Davis’s successful gubernatorial campaign.
But the desire for secrecy among law-enforcement officers is not limited to big-money, big-union operations like the California prisons. Consider the incredible case of tiny Oakley, Mich., a village of fewer than 300 residents that for generations was served by a single police officer. In 2008, the village hired a new police chief, who added a dozen officers to the force and then hit upon an ingenious fundraising strategy: handing out badges to newly minted police reservists in exchange for donations. These were not merely ceremonial positions: The reservists carried their badges, received law-enforcement concealed-carry permits allowing far more leeway than civilian licenses, and in some cases were granted access to police databases. There were rumors that people far away from Oakley, including politicos and NFL players, were carrying guns and badges under the auspices of the village police, and when the Detroit News and other media inquired as to who the reservists were, they were stonewalled. Incredibly, the police stonewalled the local government, too, arguing that — of all things — ISIS, the manic jihadists terrorizing the Middle East, might be targeting its yeoman auxiliary.
As Lord Acton might have said: Power seduces, and Barney Fife power seduces absolutely.
There are dozens of other live disputes involving police secrecy: No sensible person objects to police keeping mum about sensitive details of ongoing investigations, especially undercover investigations, but police in Tennessee are abusing that power, as government agencies will, declaring that they may classify practically anything they want as relevant to ongoing investigations, thus inverting the presumption of public-sector openness. The “ongoing investigation” copout has been used to keep the public in the dark about everything from the details of a deputy sheriff’s shooting of an innocent man to a high-profile rape case involving Vanderbilt University football players. In Maryland, a state-police sergeant left a witness a voicemail in which he was recorded referring to her by an infamous racial slur (he wrongly thought he had hung up his phone), and the authorities categorically denied the woman any information about how her subsequent complaint was being handled. This isn’t about protecting FBI agent Joe Pistone while he’s undercover as Donnie Brasco — this is about misbehaving bureaucrats and the occasional remorseless thug covering their haunches and protecting their own narrow interests.
Underscoring the point, in mid December Inspector Edward J. Winski of NYPD Midtown South tweeted out what he must have imagined to be an inspirational message: The “you can’t handle the truth!” speech from A Few Good Men, American cinema’s most poetic and impassioned defense of perjury, obstruction of justice, gross official misconduct, and witness-tampering in the service of keeping convenient secrets.
There is a term for police agencies that operate in secret: secret police, and their presence is not generally taken as a sign of a society’s good political health. Police agencies should be made to live up to their own proverbial advice: If they don’t have anything to hide, then they don’t have anything to worry about. In the real world, there is no Penguin, just a sundry assortment of Randy Credicos, Mike Browns, and Carmine Galantes. And there are no Bruce Waynes with dark secrets to be kept, just the usual mix of the good, the bad, and the indifferent — and the endless, imperfect, inevitable, frustrating slog toward oversight and accountability.