UPDATE: This story is about my attempt to get copies of 24 episodes of an LAPD podcast. LAPD has so far refused to produce them to me but I independently found a way to download them from the Department’s podcast host. I uploaded all 24 to the Internet Archive and you can get copies at this link.
This is a story about two things. First, yet another instance of the Los Angeles Police Department violating the California Public Records Act in yet another completely novel way.1 Second, about a new tactic I thought of to enforce CPRA compliance by the City of Los Angeles in general and LAPD in particular, that I am trying out for the first time.
Dominic Choi, commanding officer of LAPD’s Risk Management Division, which includes the LAPD Discovery Section, which is ultimately responsible for handling CPRA requests.The City of Los Angeles is notorious for ignoring its duties under the California Public Records Act. Among City agencies, the LAPD is probably the worst at responding to requests in a timely, comprehensive manner. One of the worst aspects of CPRA is that filing a lawsuit2 is the only recourse if an agency refuses to comply. This is the strategy being pursued by the Stop LAPD Spying Coalition.3
So anyway, my own CPRA experiences with LAPD confirm this general impression. For instance, on February 10, 2015, I sent them this:
I’d like to request a list of all active stay-away orders for the Hollywood Entertainment District or maybe you could suggest documents I could request that would allow me to assemble such a list myself? I’m interested in how many there are and what crimes were committed by the people subject to them.
I won’t bother you with a detailed timeline of all my ignored follow-up inquiries and their occasional non-responsive answers to them, but in more than 20 months after my making this request they still had supplied no records in response.4
Well, as you may be aware, I’m presently working through a theory on whether Los Angeles Municipal Ethics laws, specifically LAMC 49.5.5(A), can be used to force the City to comply with CPRA without having to go to court. A description of this project can be found here. Now, LAMC 49.5.5(A) states:
City officials, agency employees, appointees awaiting confirmation by the City Council, and candidates for elected City office shall not misuse or attempt to misuse their positions or prospective positions to create or attempt to create a private advantage or disadvantage, financial or otherwise, for any person.
You can find a good summary of the background to this post by Jasmyne Cannick on her most excellent blog or by Kate Mather writing in the L.A. Times.
Maybe you remember that former LAPD Sergeant Jim Parker was charged by the City Ethics Commission with violating LAMC 49.5.5(A) based on his release of an audio tape proving that charges of racial profiling by actress Daniele Watts were fabricated. Well, today administrative law judge Samuel Reyes issued a proposed decision in the matter, where “proposed” seems to mean that the Ethics Commission has the power to reject it if they want to. He found Parker not guilty of some of the charges, but, importantly for our purposes, guilty of violating LAMC 49.5.5(A):
Respondent5 was in possession of the audiotape by virtue of his position as an LAPD sergeant. Since he released the recording to TMZ in violation of LAMC section 49.5.3, the disclosure constitutes “misuse” under LAMC section 49.5.5, subdivision (A). Respondent released the audiotape to defend himself and LAPD against allegations of racial profiling. The release created a private advantage for Respondent, as it protected his reputation against allegations of racism.
Eep!LAMC 49.5.5(A) states, rather succinctly, that:
City officials, agency employees, appointees awaiting confirmation by the City Council, and candidates for elected City office shall not misuse or attempt to misuse their positions or prospective positions to create or attempt to create a private advantage or disadvantage, financial or otherwise, for any person.
Here’s what seems to be required of a City official or employee to violate this law:6
That they misuse their position, where I’m thinking “misuse” means:
They do something that requires the powers granted to them by virtue of their position and
their powers were not granted for the purpose of doing that thing.
The misuse creates a private advantage or disadvantage for someone, where I’m thinking “private” means:
The advantage or disadvantage created does not further public policy goals. E.g. getting arrested creates a disadvantage for the arrestee, but the disadvantage furthers a public goal. Winning a contract through the City’s bidding process advantages the successful bidder, but the advantage furthers a public goal.
The law is enforced by the City Ethics Commission, although it doesn’t seem to have been used much. There is, e.g., this case from 2010 involving a Fire Inspector who charged money for successful inspections. This is the kind of thing one would expect to fall under this statute. However, there is also one high profile case pending right now which doesn’t seem ordinary at all. It seems quite unexpected. In 2014 LAPD Officer Jim Parker was among those who responded to a sex-in-a-car call involving Daniele Watts and her boyfriend. She accused the police of racism and brutality, and Parker anonymously leaked an audio recording of the incident, which exonerated the police. Subsequently, the Ethics Commission issued a public accusation against Parker for violating LAMC 49.5.5(A) on the theory that leaking the confidential audio recording, which he only had access to by virtue of his position, constituted a misuse which created a private advantage for himself.7
This is very encouraging. It seems that perhaps the Ethics Commission is willing to at least think about a broad application of this seemingly very broad law. And it’s an interesting thing about laws that no one can actually be sure what they mean, what the range of application is, until they’re repeatedly tested in the courts. Well, that’s not exactly right. If a court decides that people of average intelligence can’t be sure at all what the law actually prohibits or requires, they’re likely to toss it out as unconstitutionally vague. But, I guess, if people don’t know exactly what the law prohibits or requires, but average people could have realized that it potentially prohibits what they’re doing or requires what they’re not doing, then it’s not too vague, even if no one actually did realize those things.8 That’s the space I’m interested in exploring with respect to LAMC 49.5.5(A). And because I’m not interested in philosophical explorations any more I’m going to explore this issue by actually turning people in to the CEC to find out what happens, beginning with our old friend, Peter Zarcone. You can read some details after the break, and even get your very own copy of the complaint I sent the Ethics Commission the other day. Continue reading Announcing Our New LAMC 49.5.5(A) Project: Peter Zarcone And The HPOA Music Festival Fiasco Provide Raw Material For Our First Experimental Attempt At Seeing What This Law Actually Prohibits→
UPDATE: This story is about my attempt to get copies of 24 episodes of an LAPD podcast. LAPD has so far refused to produce them to me but I independently found a way to download them from the Department’s podcast host. I uploaded all 24 to the Internet Archive and you can get copies at this link.
