Panel Rejects Contention That In-Vehicle Recording Proving the Charges Was Improperly Admitted
By a MetNews Staff Writer
Two men who were fired as Los Angeles police officers because they failed to respond to a call for back-up when they were parked near the scene of a robbery in progress, and instead drove off, later lying that they did not hear the call, cannot gain reinstatement based on a supposed breach of their privacy because a recording of their conversation was used to prove charges against them, the Court of Appeal for this district held on Friday.
Justice Anne H. Egerton of Div. Three wrote the opinion which affirms a denial by Los Angeles Superior Court Judge Mary H. Strobel of a petition for a writ of administrative mandamus.
When a dispatcher announced that a robbery was in progress at the Macy’s store in the Crenshaw Mall in Baldwin Hills, that building was in the sight of Captain Darnell Davenport. Also in sight was a patrol car in an alley, just a few feet away.
In that car were then-officers Louis Lozano and Eric Mitchell.
Davenport headed to the scene of the robbery. He tried to contact Lozano and Mitchell but they did not answer the call.
Their patrol supervisor, Sgt. Jose Gomez, also tried to reach them, but without success. He assumed, at the time, they were on foot patrol in nearby Leimert Park.
Gomez interviewed the two later that day, heard their denials of any awareness that back-up by them had been sought, and left them with an admonishment to listen to their radios.
Recording Was Made
It occurred to him the next day that a recording of them might have been made via the digital in-car video system (“DICVS”). It had been, capturing Lozano saying of the call from Davenport: “I don’t want to be his help.”
The recording reflected the officers listening to radio traffic concerning the robbery and the pursuit of multiple suspects. (It also reflected that they were driving around that day playing the Pokémon Go video game on their cell phones.)
The in-car recording was improperly admitted at their rights hearing, the former officers insisted, Special Order 45, promulgated by the Police Commission, which says:
“The Digital In-Car Video System is being deployed in order to provide Department employees with a tool for crime documentation and prosecution, and not to monitor private conversations between Department employees.”
Egerton noted that the department’s Professional Standards Bureau issued Notice 13.5, approved by the chief of police, which provides (with italics added by the justice):
“[If] a sensitive personal communication between employees is recorded, the personal communication will not be used to initiate a personnel complaint investigation or used against an employee in the adjudication of a personnel complaint, or during any subsequent hearings, unless there is evidence of criminal or egregious misconduct.”
Lozano and Mitchell contended that then-Chief of Police Charlie Beck had no authority to approve Notice 13.5, issued on Aug. 27, 2015. Under City Charter §574(g), they pointed out, the chief is subservient to the Police Commission which, they argued, foreclosed putting into effect a guideline that contravenes the commission’s Special Order 45.
Premise Is ‘Flawed’
“That premise is flawed,” Egerton said, explaining:
“As the trial court correctly reasoned, Notice 13.5 does not run afoul of Charter section 571, subdivision (b)(1), because Special Order No. 45 does not provide instructions or mandates to the Chief of Police when, through unintentional conduct, the DICVS records a private communication…. Because the Board of Police Commissioners did not give instructions on the use of unintentionally recorded conversations in disciplinary proceedings, Special Order No. 45 does not restrict “the exercise of the authority conferred on the Chief of Police by the Charter” under Charter section 571, subdivision (b)(1).”
“More to the point, the guidelines set forth in Notice 13.5 are consistent with the general purpose of the DICVS embodied in Special Order No. 45. Notice 13.5 reaffirms that the DICVS was not deployed to monitor private conversations, but it recognizes there may be instances when the system records personal communications that evidence ‘criminal or egregious misconduct’ by Department personnel. Because the DICVS’s purpose, as stated in Special Order No. 45, is to ‘provide Department employees with a tool for crime documentation and prosecution,’ it would be preposterous to require commanding officers and internal affairs investigators to ignore evidence of ‘criminal or egregious misconduct’ simply because it was unintentionally captured on a DICVS recording. Charter section.”
The former lawmen also invoked Penal Code §632 which renders it a crime to electronically eavesdrop “intentionally and without the consent of all parties” on a private communication. It specifies that “evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.” But that section, Egerton said, “plainly requires proof of ‘intentional conduct’ to establish a statutory violation and to invoke the evidentiary sanction.” She declared:
“Because there was no evidence that a person intentionally recorded a confidential communication in violation of the statute, petitioners cannot show the trial court prejudicially erred by rejecting their Penal Code section 632 argument.”
Egerton mentioned that “the procedures outlined in Special Order No. 45 suggest that only the officers in the vehicle can activate the DICVS” but noted that the Lozano and Mitchell testified that they didn’t realize the recorder was on.
They did not dispute that the misconduct revealed by the recording was “egregious.”
The case is Lozano v. City of Los Angeles, 2022 S.O.S. 52.
Westlake Village attorney Gregory G. Yacoubian represented the ousted officers. Arguing for the city was Deputy City Attorney Paul L. Winnemore.
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