Pubdate: Sun, 09 Aug 2015
Source: Orange County Register, The (CA)
Copyright: 2015 The Orange County Register
Contact:  http://www.ocregister.com/
Details: http://www.mapinc.org/media/321
Author: Laurie Levenson
Note: Laurie Levenson is professor of law and David W. Burcham Chair 
in Ethical Advocacy at Loyola Law School.

POLICE SHOULD BE OPEN, HONEST ABOUT THEIR MISTAKES

Outrageous. That might best describe the conduct of Santa Ana police 
officers during their recent raid of an Orange County pot shop. 
Caught on tape, police officers sworn to enforce the law can be seen 
disabling surveillance cameras and then sampling the store's 
pot-laced edibles and making disparaging remarks about a disabled 
woman inside the business.

Yet, as disturbing as that conduct is, it is not the most troubling 
aspect of the officers' behavior. More disconcerting is their refusal 
to accept responsibility for their actions. Instead, they seek to 
shield themselves behind California's wiretapping laws.

The officers' legal move might best be described as chutzpah. It 
takes a lot of nerve for the officers to file a lawsuit to prevent 
police internal affairs from using a tape that caught them in the 
act. The officers argue that this evidence comes from a surveillance 
camera they neglected to disable when they conducted their raid. They 
had tried to shut down and remove all the cameras and taping devices 
in the shop - but missed one.

It is questionable whether this legal maneuver will work, but even it 
if does, it is unlikely to stop a disciplinary inquiry. It is true 
that California has laws to prevent surreptitious surveillance. The 
California Invasion of Privacy Act makes it illegal for any person 
without the consent of another to record confidential audio or video 
communications. Unlike in other states, hidden cameras are ordinarily 
prohibited unless they are being used by police officers or 
confidential informants.

However, the key to the application of this statute applying is that 
the communications are "confidential."

Under the Act, a communication is not "confidential" if it occurs 
under a circumstance where "the parties to the communication may 
reasonably expect that the communication may be overheard or 
recorded." Given that they knew the shop was loaded with recording 
devices, it may be difficult for the officers to argue that they 
could not reasonably expect their actions would be taped. Moreover, 
what police officers do in their work in public is open to scrutiny.

Throughout our nation, there has been a growing crisis of confidence 
in the police. Sadly, unprofessional actions by some officers can 
quickly squander the precious goodwill of good officers who 
courageously and professionally perform their duty every day. We 
expect police officers to have nothing to hide. Commission after 
commission has found that transparency and oversight are key to best 
police practices. Certainly, the officers at issue should receive 
fair treatment, but they will not be able to magically make their 
actions disappear by hiding behind California's wiretap laws.

Even if a judge holds that the videos cannot be used in the internal 
affairs investigation, the officers' conduct is likely to be 
revealed. First, to the extent that civilians were present, they can 
testify to what occurred. Second, other officers who were present 
should be willing to testify truthfully to the misconduct of their 
fellow officers.

Allegiance to fellow police officers should not trump the duty to 
obey the law. For decades, the public has called for reforms to 
eliminate the code of silence used to shield police misconduct. This 
case is another test of that culture.

It is far too early to judge what, if anything, should happen to the 
officers who participated in this raid. A fair investigation and 
hearing should decide their fates. But it is not too early for the 
public to demand the police embrace a culture where they are open and 
honest about their mistakes. No one expects police to be perfect. 
However, we have a right to expect them to strive to be better.
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MAP posted-by: Jay Bergstrom