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. - --- MAP posted-by: Jay Bergstrom