Cal.2: Firing of two LAPD police officers recorded in patrol car ignoring a robbery in progress upheld

Not a search and seizure case, but interesting, and compare this to arrestees recorded talking to each other or themselves in the back of a police car where there is no reasonable expectation of privacy:

The firing of two LAPD officers’ was upheld on appeal for their playing Pokémon Go on duty and not responding to a robbery in progress call. The patrol car camera was used against them because it was passively recording. They argued use of the recording violated department policy. The video wasn’t the cause of the complaint; it confirmed it, and that didn’t violate the policy. Lozano v. City of Los Angeles, 2022 Cal. App. LEXIS 9 (2d Dist. Jan. 7, 2022):

Contrary to petitioners’ construction, Notice 13.5 does not impose an evidentiary threshold on a commanding officer’s authority to review a DICVS recording. Rather, the notice means exactly what it says—that “a personal communication will not be used to initiate a personnel complaint investigation … unless there is evidence of criminal or egregious misconduct.” (Italics added.) Nothing in Notice 13.5 suggests there must be independent evidence of criminal or egregious misconduct before the DICVS recording may be reviewed. Indeed, because the Professional Standards Bureau published the notice to provide “guidelines” for “determining appropriate and reasonable responses to possible misconduct … discovered during the review of [ ]DICV[S] recordings” (italics added), the only reasonable reading of the text is that it authorizes the initiation of disciplinary proceedings when the DICVS recording itself discloses evidence of criminal or egregious misconduct. Thus, while Notice 13.5 ensures that Department personnel will not be subject to discipline for minor infractions or purely private communications unrelated to their police work (as long as the private communications do not evidence criminal misconduct), the notice reasonably provides that commanding officers will not be forced to ignore egregious misconduct that is unintentionally captured on a DICVS recording.

Petitioners do not dispute that the DICVS recording constituted evidence of egregious misconduct. And the record plainly shows Sergeant Gomez initiated a misconduct complaint investigation based on this evidence.

We conclude the City proceeded in the manner required by law with respect to the DICVS recording.

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