Why The Police Don’t Want Their Conduct Recorded

Jerry L. Steering, Esq. before 9th Cir. Court of Appeals, Pasadena, CA

Ask the average American why people become police officers, and they will almost invariably tell you “to serve and protect.” They are conditioned to believe this even though it’s just not so. This frame of mind must stop if we are to again become a free people. Presently, we are not. You may not feel the boot of oppression pressing down upon you now, but someday, you or your relative, or a friend or your neighbor, will. When that happens, you will not be the same person. Your belief system about the police will have changed. You will be saying: “I never would have believed it if I hadn’t seen it myself.” They always do. You will no longer believe that the police are here to “serve and protect” us. You will know otherwise. A strong dose of reality, like being beaten-up by the police and being arrested for resisting arrest and battery on a peace officer will do that to you.

Most Conservative white people feel that they aren’t doing anything illegal, so what do they have to worry about? What they don’t realize is that contrary to all of the recent press coverage of police shootings of black youths, the police don’t just pick on blacks; they falsely arrest, wrongfully beat and often shoot all colors of civilians. In recent times, the American press and media, along with the growth of social media, have bombarded Americans with stories of misconduct by the police. This is not a trend that is going to go away, for no other reasons than: 1) just about everyone is carrying smartphones, and 2) because of the ever dropping costs to police agencies of recording and storing digital video and audio data more and more police agencies are having their officer wear body video cameras.

Because of the advent of smartphones, the public has become today’s videographers of police misconduct. Almost all of us have the ability to quickly engage a video recording device to record an event that we may be witnessing. Unfortunately, the event that would prompt one to engage the video record function of the cellphone, usually precedes what actually gets recorded. However, there’s enough smartphones out there so once in a while, the actual police outrage gets recorded.

Also, because some public entities are either dumb enough, or honest enough, to have their police officers video record themselves, the public can get a better concept of reality. If you ask any Risk Management Officer with a public entity about the their police agency even being equipped with Patrol Video Recording Systems, they will tell you (off the record) that they are vehemently opposed to any such recording. Although when some police officer does something terrible to a civilian, the politicians call for “transparency”, Risk Management people with the public agency know better. They know that the numbers of false claims against police officers will be greatly exceeded by the number of police outrages against the public that does get recorded. In most public agencies, the “bean counters” (the Risk Management people) have so far won that battle.

For example, the California Highway Patrol still only has a few of their Patrol Cars equipment with Patrol Video Recording Systems. The Los Angeles County Sheriff’s Department doesn’t have Patrol Cars equipment with Patrol Video Recording Systems to this very day. The FBI and the Treasury Department don’t even video or audio record witness statements to this very day; they take handwritten notes, and then type-up their Form 302 Witness Interview statements. So, why is this the case?  The answer is simple; without recording witnesses or incidents, there’s only one side of the story; the police officer’s side.

If someday, all or most police officer are required to wear and engage body video cameras, the veil of purity or decency of police agencies will, to an appreciable degree, be lifted for all to see. If that happens, the public will realize that their illusion / delusion of living in a free society, was false. This is important for many reasons:

FIRST REASON: BECAUSE THE PUBLIC HAS NO CONCEPT OF POLICE ACTIONS IN THE REAL WORLD, THE POLICE CAN EASILY FRAME THEIR VICTIMS FOR “RESISTANCE OFFENSES.”

Unless you were brought up in the ghetto or the barrio, you probably haven’t personally witnessed the police beating-up and framing innocents; most often for verbal protest of their treatment by the police (i.e. “contempt of cop arrests”.) This author has been suing police officers since 1984 and has either represented or has spoken with thousands or victims of police brutality and false arrests. These wrongful beatings, tasings, clubbings, pepper-sprayings and shootings don’t just happen to persons of color. This author has represented persons who one would never expect to have been beaten and falsely arrested by the police; such as an American Airlines Captain, an Aerospace Engineer, a major Bank Vice Presidents, School Teachers, a School Board Member, Pastors, Physicians and other members of society that we don’t associate with criminality. These innocents who suffer police beatings and false arrests invariably say that they never would have believed it if it hadn’t happened to them. Before their life-changing encounter with oppressive police conduct, these high status innocents usually supported the police, and thought highly of them. They thought that the police were there to “protect and serve” them; not to beat / tase / spray / club or shoot them.

This is particularly problematic when members of the public are impaneled as jurors in either criminal cases for “resistance offenses”, or civil actions against police officers for civil rights violations. During jury selection, potential jurors who are questioned by the court and the lawyers during jury selection (“voir dire“) who have either seen or have been the victim of oppressive police actions, will almost always tell the court that they cannot be truly “fair and impartial” to both sides, because of the effect that their prior bad experience with the police. When that happens, the court will excuse them for cause; excuse them from serving on the jury without the prosecutor or the lawyer for the police not having to use one of their peremptory jury strikes. This gives the prosecutor or the civil lawyer for the police an advantage. In federal court in a civil action, each side usually gets three or four peremptory jury strikes. In state court criminal actions, most courts give each side as many as ten peremptory jury strikes. Any of the other jurors who have who have either seen or have been the victim of oppressive police actions but have not been excused for cause, will routinely be prevented from serving on the jury by the the prosecutor or the civil lawyer for the police though their use of peremptory jury strikes. Thus, at the end of the day, those who do end-up sitting as jurors are “sanitized”. They are people who have never seen or have been the victim of oppressive police actions. When that happens, it’s almost impossible for the victims of police outrages to get a fair trial. They are judged by persons who have no concept of the reality of modern policing. As described in more detain below, the problem with the police obtaining a bogus conviction of you for a “resistance offense” (i.e. resisting / obstructing / delaying peace officer, battery on peace officer, using or threatening use of force or violence against peace officer) will generally preclude you from suing for your false arrest, your beating by the police and your malicious criminal prosecution.

SECOND REASON: WHEN THE COPS ARREST YOU FOR YOUR FAILURE TO PASS “THE ATTITUDE TEST”, THEY USUALLY DO SO FOR A “RESISTANCE OFFENSE”; A CONVICTION FOR WHICH WILL PRECLUDE YOU FROM SUING THEM.

Contempt of Cop arrests are usually for crimes such as violation of Cal. Penal Code § 148(a)(1) (resisting / obstructing / delaying peace officer; the most abused statute in the Penal Code), 2) Cal. Penal Code § 240/241(c)(assault on a peace officer), 3) Cal. Penal Code § 242/243(b)  (battery on a peace officer) and 4) Cal. Penal Code § 69 (interfering with public officer via actual or threatened use of force or violence.)

Cal. Penal Code § 69 is a “wobbler”; a California public offense that may be filed by the District Attorney’s Office as either a felony or a misdemeanor. When the police falsely arrest one for violation of Section 69, they always make it a felony arrest; one that requires the posting of bail prior to any court appearance. Over 95% of all of police arrests for these “resistance offenses” are false arrests; the arrested person almost always being the victim of the use of unreasonable force by a police officer. As shown below, either because one is not willing to or simply cannot either post bail, many of them end-up pleading to misdemeanor Section 69 or some other misdemeanor “resistance offense”, to get out of jail, or to put an end to their nightmare. After all, Public Defenders who defend misdemeanor cases are usually not experienced lawyers, and have too many clients to devote the time and effort necessary to overcome police lies about their clients. Therefore, having a video and/or audio recording of an event may be the only way to vindicate the innocent victim of police abuse.

THIRD REASON: LOCAL PUBLIC PROSECUTORS THAT ARE USUALLY ELECTED OFFICIALS LIKE COUNTY DISTRICT ATTORNEY’S AND CITY PROSECUTORS, ARE THE POLICE, AND HAVE NO PROBLEM FRAMING INNOCENTS TO PROTECT THE POLICE FROM CIVIL LIABILITY; TO PROTECT THEM FROM YOU.

They do this by criminally prosecuting innocents for “resistance offenses“; the conviction for which will almost always preclude the police misconduct victim from obtaining civil redress in court. Don’t think that public prosecutors sit around, determine that a police misconduct victim is innocent of a crime, and then take it upon themselves to prevent you from suing the police to protect the police from civil liability and obloquy. This does happen, but it’s not common.

County District Attorney’s Offices usually have “filing deputies”; Deputy District Attorney’s who are assigned to review “case packages” from local police agencies (i.e. at the filing stage usually just the police reports), and who make the initial decision to file a criminal case against the person complained of in the initial police reports. These filing deputies usually have to review and to make filing decisions on ten to twenty police filing packages per day. That’s barely enough time to read the initial police reports. They usually don’t have an opportunity to review audio and video recordings from the same incidents for which the police are seeking criminal prosecutions. So, these filing deputies will usually accept whatever material false statements of fact contained in the police reports as true, and usually will file a completely bogus criminal case against an innocent victim of police abuse; usually for “resistance offenses.”

Moreover, local elected public prosecutors see the endorsements of local police agencies as central to them being re-elected, so if they can do favors for the police by prosecuting their victims, they usually do so. Some DA’s Offices have even created “Crimes Against Peace Officer” Units, to endear themselves with the police by beating-down the victims of police abuse, and get them to plea to some crime that will preclude the innocent from suing the police.

The U.S. Supreme Court has made a policy decision, to preclude one convicted of committing a crime, to sue for constitutional violations.  See, Heck v. Humphrey, 512 U.S. 477 (1994.) So, the police get away civilly for violated your rights, if you basically plead to anything; especially any sort of “resistance offense.” That’s why in recent years, the Los Angeles County Sheriff’s Department and the San Bernardino County Sheriff’s Department will now more than ever charge the victims of police beatings and “contempt of cop” arrests for violation of Cal. Penal Code § 69 (interfering with public officer via actual or threatened use of force or violence); a “wobbler” offense in California, that can be charged as either a felony or a misdemeanor. If the police charge you with a felony, then they can hold you in-custody unless you post bail; something that many Section 69 arrestees cannot afford. This results in many persons falsely arrest for violation of Section 69 plea at the first court appearance; just so they can get out of jail. The Section 69 charge is usually reduce to a misdemeanor, or changed to violation of regular resisting / obstructing / delaying a peace officer; Cal. Penal Code § 148(a)(1) . So, the arrestee pleads-out to get out of jail, and the cops get their conviction that will preclude the police abuse victim from suing his oppressors; the police.

The California Supreme Court has also followed suit in Yount v. City of Sacramento, 43 Cal. 4th 885 (2008)(adopting Heck v. Humprey’s bar to suit if there’s a conviction, just because the court felt like limited public entity and employee liability as a matter of policy. So much for “we” (the right) don’t like those “activist liberal judges”, who just make-up the law.

So, why are police officers against recording themselves? Because they may have to start respecting the rights of the public, and are more likely to be held accountable for any such violations. It’s really that simple.

Law Offices of Jerry L. Steering

Jerry L. Steering, Esq.

Jerry L. Steering with Diane Sawyer,  Co-counsel* Bob Dole,
and former partner** Melvin M. Belli

Suing Bad Cops And Defending Bogus Criminal Cases Since 1984

The Law Offices Of Jerry L. Steering, 4063 Birch Street, Suite 100, Newport Beach, CA 92660       (Call) 949-474-1849, (Fax) 949-474-1883, jerrysteering@yahoo.com

 

 

*In the District of Columbia only. **In Beverly Hills Office only. ***The State Bar of California does not certify a specialty in police misconduct which is most of Mr. Steering’s law practice.

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