On April 15, 2017, Louis Lozano and Eric Mitchell, two police officers for the City of Los Angeles (City), were working as partners when they received a radio call for a robbery in progress at a mall near their location. Sergeant Jose Gomez, their patrol supervisor that day, later radioed their patrol unit and requested that they respond to the robbery to assist a captain. The officers did not respond to the Sergeant.
Later that evening, the Sergeant met with the two officers to ask if they had heard the call for backup regarding the robbery. The two officers said that they did not hear the call due to loud noise in their surrounding area. The Sergeant counseled them for not listening to the radio and advised them to move to a location where they could hear their radio in the future. The Sergeant then reviewed the digital in-car video system (DICVS) recording from the day, which showed that the officers did hear the radio communications about the robbery, but elected not to respond. The Department then initiated an investigation, which determined – based on the DICVS recording – that the officers chose to play “Pokémon Go” rather than respond to the radio. Although the officers claimed they were not playing the game while on duty, the investigation determined that they were not truthful.
Based on the investigation’s findings, the Department charged the officers with multiple counts of misconduct, including failing to: respond to a robbery-in-progress call; respond over the radio when their unit was called, and handle an assigned radio call. The officers were also charged with playing “Pokémon Go” while on patrol and making false or misleading statements during the personnel investigation.
A board of rights found the officers guilty on all but one count and unanimously recommended that they be fired. The Department’s Chief of Police adopted the board’s penalty recommendation and terminated them.
The officers filed a petition for writ of administrative mandate challenging the City’s decision to terminate their employment. The trial court denied the petition, and they appealed.
On appeal, the officers alleged the City unlawfully used the DICVS recording in their disciplinary proceeding because the recording captured their private conversations. They alleged the Department violated its Special Order No. 45, which states that the DICVS may not be used to monitor private conversations between employees. The Court of Appeal disagreed, noting that another Department guideline clarified that if a personal communication between employees is recorded on the DICVS, it will not be used to adjudicate a personnel complaint “unless there is evidence of criminal or egregious misconduct.”
The officers also alleged that the use of the DICVS recording violated Penal Code Section 632, which prohibits intentional eavesdropping by means of any recording device without the consent of all parties. The Court of Appeal disagreed, finding that the officers failed to present any evidence as to who was responsible for turning on the DICVS recording.
The officers also alleged the City denied them protections under the Public Safety Officers Procedural Bill of Rights Act (POBR) because Sergeant Gomez questioned them without affording them the opportunity to have a legal representative present. Again, the Court of Appeal disagreed, finding that the Sergeant’s meeting with the officers was a routine contact between supervisor and subordinates. The Court noted that the Sergeant had no evidence when he met with the officers that they had heard and ignored the radio calls. Therefore, Sergeant Gomez did not violate the POBR by meeting with the officers without their representative.
For these reasons, the Court of Appeal affirmed judgment for the City and upheld the officers’ terminations.
Lozano v. City of Los Angeles, 2022 WL 71705 (Cal. Ct. App. Jan. 7, 2022).
Note:
The Court of Appeal relied on the Department’s unambiguous guidelines that vehicle recordings could be used in some circumstances for personnel investigations and discipline. LCW attorneys regularly assist agencies to ensure that any guidelines or policies align with applicable law.