Santa Ana City Councilmember Johnathan Ryan Hernandez was at his home in the Artesia Pilar neighborhood last Monday night past 10 p.m., getting ready for bed, until police started blasting music in an effort to prevent video from being uploaded to Youtube.
The move is raising questions about police officers skirting accountability by using copyright infringement laws.
“There’s no way I’m hearing Disney music outside right now,” he recalled in a Thursday phone interview.
When he checked, Hernandez found Santa Ana police officers cranking family-friendly classics down the street – a grating, late-night wake up for residents of the Latino neighborhood, with selections from the soundtracks of animated pictures like Toy Story and Encanto.
It led to Hernandez confronting an officer on the scene, in a heated exchange that was filmed and uploaded online to the Santa Ana Audits YouTube channel, circulated on social media, and first reported on by local TV stations, like ABC 7.
“Why are you playing Disney music?” Hernandez asked one of the officers nearby, who appeared to be caught off guard at the sight of the council member. The officer, later on, explained that officers on the scene were investigating a stolen vehicle in the neighborhood.
“It would be copyright infringement for him,” said the officer, who pointed at the person filming. Playing the intellectual property, so that the music is heard in the video, would on paper make it more difficult for people to post online, on YouTube and Instagram.
In other words, the Santa Ana Police Dept. had joined in on an increasingly popular law enforcement strategy aimed at blocking members of the public from exercising a clearly-established constitutional right: Filming the police.
Santa Ana residents have a reason and the right to record the police, said Jennifer Rojas, a policy advocate with the American Civil Liberties Union of Southern California. Rojas monitors cities like Santa Ana.
“The public right to record is an important measure for transparency and this has been long established, so when a member of the public is reporting, it’s inexcusable for our police to use copyrighted music with the apparent intent of preventing the recording from being shared.”
She said the incident is “concerning” to see multiple Santa Ana officers present while the music was playing – and that it “required a council member to intervene to protect the rights of the public.”
“There is a documented history of police misconduct and violence in Santa Ana,” Rojas said.
Monday night’s filmed incident was uploaded by a YouTube account known as Santa Ana Audits. It boasts more than 5,000 subscribers and lists dozens of similar videos on its page, in which someone records police during their operations in the field.
It’s a common practice nationwide, known as First Amendment audits.
From a public space, a photographer or videographer – usually an activist, or citizen journalist – will document officers’ activities and then test those officers’ knowledge of their rights when confronted.
In practice, it promotes government accountability and First Amendment rights.
But police agencies across the country have found a way to block these filmed encounters, by playing copyrighted music.
Doing so would put the music in the video, which would – on paper – prevent the person filming from uploading it to YouTube or Instagram, as it would be taken down or stricken over intellectual property law.
Santa Ana police joined them last week.
And yet, the video of Hernandez and the officer, even with the music audible, was still on YouTube in its entirety as of Friday, April 8 at noon.
In response to the incident being made public online, the Santa Ana Police Dept. and its chief, David Valentin, issued a brief written statement on Facebook:
“The Santa Ana Police Department is aware of a video that has surfaced involving one of our officers. We are committed to serving our community and we understand the concerns as it relates to the video. The Santa Ana Police Department takes seriously all complaints regarding the service provided by the Department and the conduct of its employees. Our department is committed to conducting complete, thorough, and objective investigations.”
The statement only speaks to the department’s commitment to thorough investigations.
Santa Ana Police Dept. spokesperson Maria Lopez didn’t respond when asked whether the department was actively investigating the actions of officers on Monday night.
Earlier on Thursday, Lopez refused to comment on how the agency views the copyrighted music strategy.
“You’re using our resources -” Hernandez started in the video of the Monday night incident.
“No I’m not using our resources, I’m using an iPhone,” the officer replied.
“We’re paying you on tax dollars.”
“Do you know who I am?”
“I know who you are,” the officer responded. “I did recognize you.”
Later, Hernandez said, “There are kids that need to go to school (in the morning). There are people that are working. You’re using our taxpayer dollars to disrespect a man with your music. That’s childish, sir.”
Hernandez then made the officer apologize to the person filming.
Over the phone Thursday, Hernandez said moves by police officers to skirt accountability need to be blocked.
“Santa Ana PD should make an immediate ban to any behavior that is trying to deter the public from reporting them,” he said.
“And I can assure they can expect an ordinance as well,” Hernandez said, asked what his next step was, specifically, from a policymaking standpoint.
“It’s either gonna come from them or us.”
Rojas, of the ACLU, referred to the murder of George Floyd by a white police officer. It was caught on film and is widely considered to have been key to delivering a guilty verdict on Floyd’s murderer, Derek Chauvin, during the ensuing trial.
“It’s clear and especially clear after the murder of George Floyd that Santa Ana residents have that right,” Rojas said.
Hernandez said Monday’s incident “further solidifies why we need oversight and why we need it now. Police officers are not willing to hold officers accountable. The only time we do see police officers holding them accountable, they’re given a title and it’s ‘whistleblower.’”
“It’s not normal to stop police from breaking the law, but it should be.”
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