City Loses Appeal of Video Case

SANTA ANA — During an undercover sting operation into the seedy world of adult video arcades, plainclothes Santa Ana police officers spent more than $4,000 watching skin flicks, and allowed themselves to be groped in unmarked police cars.

But after police tried to shut down as a nuisance the business where illegal sex acts took place, the 4th District Court of Appeal sided with the arcade and said police were asking for it.

In a scathing decision released Thursday, the appellate court ordered the city to pay $65,000 in attorney fees to Discount Adult Books and Video, ruling that the undercover sting operation improperly solicited and encouraged the very behavior it aimed to stop.

“Hopefully, the city will realize they cannot impose their morals on all the businesses in the city,” said Randall L. Hite, attorney for store owner Margaret Haskin.

While Santa Ana Police Chief Paul M. Walters defended the undercover investigation, Hite called the sting a waste of taxpayers’ money and accused the Police Department of having its officers watch more than 600 hours of adult videos because it was easier than chasing gang members or drug dealers.

“It’s definitely not an investigation that poses a high risk to officers,” Hite noted.

Police hoped the undercover investigation would result in the evidence needed to temporarily shut down the arcade.

The appellate court said the business took steps to prohibit lewd behavior, including using employee patrols and signs warning against illegal activities.

“There was nothing more they could have done,” according to the ruling.

During the undercover investigation, officers asked workers to suspend patrols. It was this permissive atmosphere that led to so many instances of lewd conduct being discovered by the officers, the appeals court found.

And some of the behavior might not have occurred had officers not instigated it, the court ruled.

“Officers made eye contact and engaged in other forms of nonverbal communication which encouraged and incited lewd conduct,” the appeals court found.

When the officers tried to shut down the arcade, citing the many violations they observed, the owner successfully challenged the move in Orange County Superior Court. The city appealed, and now has lost again.

City officials denied that officers instigated lewd conduct. They said they could only speculate as to what the appeals court meant when it said officers incited illegal activity with “nonverbal communication.”

“What are they talking about? Winking? Batting eyelashes?” said Lt. Bob Helton, head of special investigations. “Those are ridiculous inferences.”

Chief Assistant City Atty. Bob Wheeler said police made 34 misdemeanor arrests at the business during the sting operation, conducted from early 1992 to early 1993. He said that proves that the mostly male clientele went there to commit lewd acts. “The evidence doesn’t indicate these men were going in there to exercise their 1st Amendment rights,” Wheeler said. Police Chief Walters defended the use of nearly $4,000--money from a special operations fund--to view adult videos.

“You have to hang out. What are you going to do, look at the walls?” Walters said. “You have to act like a customer.”

Helton said a quarter bought about two minutes worth of videos, and most of the machines showed only homosexual movies. The city will ask the appellate court to reconsider its decision, Wheeler said.