AUTHORS*
J. Scott Tiedemann
Kaylee E. Feick
CITY PROPERLY TERMINATED TWO PEACE OFFICERS WHO PLAYED VIDEO GAMES RATHER THAN RESPOND TO A ROBBERY, AND WHO LIED TO COVER UP THEIR NEGLECT OF DUTY
Lozano v. City of Los Angeles, 73 Cal. App. 5th 711 (2022)
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, radioed their patrol unit and requested that they respond to the robbery to assist a captain. The officers did not respond to the sergeant.
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 had not heard 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 had heard the radio communications about the robbery, but elected not to respond. The Department subsequently initiated an investigation. Ultimately, based on the DICVS recording, the investigation determined 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 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 their employment. The officers then filed a petition for writ of administrative mandate challenging their terminations. 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. More specifically, 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 were to be recorded on the DICVS, it would 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 Cal. Pen. Code § 632, which prohibits intentional eavesdropping by means of any recording device without the consent of all parties. Again, 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.
Finally, the officers alleged the City denied them protections under the Public Safety Officers Procedural Bill of Rights Act (POBRA), because the sergeant questioned them without affording them the opportunity to have a legal representative...
