Both the Santa Ana Police Dept.’s most vocal critics and staunchest supporters on the City Council Tuesday night had tough words for the officer who woke a neighborhood with loud music to evade a filmed encounter with the public.
“That police officer made a joke of our police department, made a joke of our city, made a joke of our residents, made a joke of the Mayor and this City Council by acting that way,” said Councilmember David Penaloza.
The officer’s intent on April 4 was to block a local YouTuber and police watchdog from filming a late-night stolen car investigation in the area. He played popular Disney music to prevent the video from circulating under intellectual property rights.
But filming the police from a public space is a clearly-established constitutional right.
The outrage went across the board on Tuesday night.
“As one of the biggest supporters of law enforcement on this City Council … I don’t know how an officer in our department could feel that confident to do that at 10:30-11 p.m. at night … there needs to be accountability. And there’s obviously something wrong with the leadership level there if officers think that’s ok,” Penaloza said.
Council members at their meeting also appeared to be on board with having the City Attorney come back at a later meeting with a draft ordinance explicitly banning the police maneuver that’s become increasingly popular across the U.S.
Though it proved unsuccessful on April 4.
“This unfortunately is now viral,” said City Councilmember Johnathan Ryan Hernandez.
Video of the incident remains where it first appeared: The Santa Ana Audits YouTube channel. The channel films police and tests their knowledge of citizens’ constitutional rights when confronted.
Hernandez lives down the street from the scene of the April 4 incident. The officer that night started blasting copyrighted music from Disney movies once the Santa Ana Audits cameraperson arrived. Other nearby officers didn’t raise any objections.
The council member and other residents walked out of their homes toward the source of the grating noise. He confronted the officer responsible and the Santa Ana Audits cameraperson filmed that as well.
Video of the confrontation made national headlines and spread online.
Police oChief David Valentin voiced public concern over the April 4 incident to the Orange County Register and officials have said an investigation is underway.
Filming the police is a popular practice known commonly as First Amendment Audits.
“Unfortunately, due to the fact that we don’t have police oversight in the City of Santa Ana, the public has engaged in oversight for us,” Hernandez said. “There were two other officers there unwilling to say something. In any profession that’s not acceptable, especially if you have a gun and badge.”
He also noted some state data on civilian complaints against officers in Santa Ana which is available on the Dept. of Justice website.
It shows civilians filed a total of 207 complaints against local officers between 2016 and 2020. The city sustained six complaints and declared 73 complaints to be “unfounded” over that same time period. There were three cases over that same time in which the city exonerated the officer.
More than 120 complaints are still pending.
“Not a single complaint has ruled in favor of civilians from 2016 to 2020,” Hernandez said.
Councilmember Phil Bacerra said people often submit complaints against officers but don’t get a satisfactory response. “A lot of times you don’t really know what’s happened.”
He’s one official who sits on a city committee that’s currently exploring how Santa Ana could create a police oversight commission.
“As a member of this city council, I don’t know what’s going on with this particular (April 4) case as far as what’s going to happen with this officer. I don’t wanna violate (the Police Officers Bill of Rights),” Bacerra said. “But I do believe, especially for folks in council member Hernandez’s ward, people deserve an explanation and deserve to know that action was taken to correct this situation.”
He also voiced support for a policy banning the practice.
“It’s funny, we look at the law and go, ‘Gosh, why is that on the books?’ Well, it’s because somebody did something that made everybody go, ‘Gosh, I guess we apparently have to have a law for that.’ Apparently, someone thought it was a great idea to blast music in a residential neighborhood past 10 p.m. at night as a member of our law enforcement,” Bacerra said.
The department has an existing policy in its manual known as Policy 428. It affirms the public’s right to film but largely deals with situations in which an officer considers taking the recording device away or arresting the filmer.
It also states what the public cannot do while filming. Acts that qualify as “interfering” with police under the policy include “tampering with a witness or suspect” and “inciting others to violate the law.”
Santa Ana police also consider interference as being so close to the law enforcement activity that it presents “a clear safety hazard” or disrupts “an officer’s effective communication with a suspect, victim or witness.”
The policy does not expressly discourage or prohibit officers from more indirectly interfering with the public’s right to film such as playing copyrighted music.
“It sounds ridiculous but we’re tasked with that now,” Bacerra said on Tuesday night.
Though he and Penaloza also took issue with some people who film the police.
“The public has every right to film any of our city employees, police or not,” Penaloza said. “But … I’ve seen a lot of these people that go around filming officers and it’s also not appropriate for you to antagonize and try to get a reaction from our officers, which is what many of them do.”
He added, “Sit there and film all you want, but at the same time don’t sit there and try to get that reaction – you’re trying to fish for that reaction and get those clicks … and at the end of the day many of our officers and city employees are human and probably going to react after ongoing taunting, and that’s not ok either.”
That prompted a response across the dais from Councilmember Jessie Lopez.
“I don’t think this is a time to try and chastise our community and say, ‘Well you need to behave too,’” Lopez said. “We have on video multiple officers being inappropriate and doing what we tell our residents not to do, and I believe the only reason we’re even discussing this is because a council member happened to be in the area and asked what is going on here.”
Lopez said, “Part of the video that was hardest for me to watch is you have an older lady trying to communicate and say ‘What is going on?’ and she was just ignored. That is not community policing. That is not how you engage or build rapport with Santa Ana residents.”
Mayor Vicente Sarmiento said the incident erodes trust in the city’s police department.
“We’re trying to build trust with the community and establish this relationship of when you see something say something – and this really chills this sort of activity, chills it for victims, chills it for the witnesses,” he said.
It was only Hernandez’s latest high-profile encounter with the police throughout his time in office thus far.
He rushed with other family members to the scene of an Anaheim and Santa Ana police standoff with his cousin named Brandon Lopez last September. Lopez led police on a chase earlier in the day and it ended when his car got stuck in a construction zone.
Police fired a flashbang into Lopez’s disabled car and shot him repeatedly as soon as he exited the vehicle.
Hernandez became publicly vocal about Lopez’s death in the days following. Hernandez said his cousin had a mental health crisis and that he tried telling officers about it at the scene.
He recalled his cousin’s death on Tuesday night. He called it “eerie” when he heard the loud music. He said he first thought police were trying a de-escalation tactic for a domestic crisis on his street.
“Maybe there’s a child in an apartment that is going through something and does not wanna come out of their house and maybe music is being utilized this way,” Hernandez recalled of his thought process that night.
He said he’s now getting threatening emails after his encounter with the Santa Ana officer went viral.
“I have seen a number of emails saying, ‘the next time Hernandez needs the cops the cops aren’t going to show up,’” he said on Tuesday. But he added that “no one’s gonna come to my community and try to harm me.”
“I am fully OK with you knowing where I live.”
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