LOS ANGELES (CN) — A Los Angeles Superior Court Judge heard oral arguments Thursday on a motion to dismiss a lawsuit filed by the city of LA in an attempt claw back thousands of photographs of police officers it says it "inadvertently" released to an independent journalist.
Ben Camacho, the photo editor for the progressive nonprofit news site KnockLA, asked the court to dismiss the suit on anti-SLAPP grounds, arguing the "photographs are a matter of public interest because they allow the public and journalists to monitor a huge urban police force staffed by officers who are 'public officials' under California law, not private figures, and have the authority to arrest, jail, wound and kill."
In 2021, Camacho, then a freelancer, filed a Public Records Act request for "the most up-to-date roster of LAPD names, badge numbers, serial numbers, division, sworn status" as well as the headshots of every officer. Though the police department provided some of the information, it initially refused to hand over the photos. It wasn't until Camacho sued and a settlement was reached that the city finally handed over 9,000 LAPD officer headshots on a flash drive. At the time, the city said it had excluded photos of officer in an "undercover capacity."
Camacho sent copies of the photos to the activist group, the Stop LAPD Spying Coalition, which used the images to create Watch the Watchers, a searchable database of most LAPD officers, including their name, email, rank, serial number and salary. The website enraged the police union, the Los Angeles Police Protective League, or LAPPL, which said the website included "the names and photographs of officers engaged in sensitive investigative assignments, placing their lives and the lives of their families in extreme jeopardy and peril."
Mayor Karen Bass, who has pledged to hire more police officers, called the release "an egregious mistake" and said she was worried that it would lead to more officers leaving the force.
The union sued the city, calling the photos' release "one of the worst security breaches in recent memory." Shortly thereafter, the city sent a letter to Camacho demanding the flash drive back. The demand letter was followed by a lawsuit seeking a return of the flash drive and the destruction of all digital copies of the photographs. The LAPPL later dropped its lawsuit against the city.
In May, Superior Court Judge Mitchell Beckloff denied a motion by the city to order the return of the photos. Beckloff chastised the city for providing no evidence that the photographs had been mistakenly handed over, or that undercover officers had in fact been exposed.
Both Camacho and the Stop LAPD Spying Coalition filed motions to dismiss the complaint on anti-SLAPP grounds, a legal tactic often employed by media organizations to dismiss lawsuits aimed at discouraging free speech or public participation. At Thursday's hearing, Deputy City Attorney Joseph Persoff argued California's anti-SLAPP law didn't apply. He likened the fulfillment of the Public Records Act request to a convenience store clerk who mistakenly gives a customer too much change back. In that scenario, it's the customer's responsibility to hand back the money.
"The claim arises out of the defendants refusal to turn over city property," he said. "A failure to act is not covered under the anti-SLAPP statute."
The case has a new judge, Anthony Mohr, and he made it clear from the beginning that he is sympathetic to the city's argument. While he believes the actions of Camacho and the Stop LAPD Spying Coalition likely did fall under public participation, he said the case against Camacho was strong enough to survive the motion to dismiss. But he was less sure about the case against the coalition.
"I hear you with Camacho," Judge Mohr told the city's lawyers. "It’s a breach of contract is what you’re saying. But Stop LAPD didn’t breach a contract." He also wondered what kind of remedy the city could possibly hope for, now that the photos had been uploaded to and spread across the internet.
"Now these pictures are hither, thither and yon," he noted, then asked Persoff: "Assume you win. What happens?"
Persoff replied, "Obviously, the nature of things, the remedy won’t be perfect. The city is trying to do what it can. If the photos can be harder to find, if people need to dig a little to find them, that could have a positive impact. Does that save one life? maybe. There’s no panacea. But something can be done."
Since the May hearing, the city filed a three-page declaration by an LAPD commander who said the flash drive given to Camacho contained "hundreds of photographs and identifying information of officers who worked as undercover officers," defining an undercover officer as "an operator assigned to either an undercover or surveillance operation to obtain evidence, gather intelligence, and establish relationships that require concealing the operator’s identity as a police officer to accomplish the mission."
Camacho's attorney Susan Seager objected to the declaration, pointing out that the commander never cited any written policy defining what an undercover officer is. But the judge said the commander's background made him competent enough to define it.
Stop LAPD Spying Coalition attorney Matthew Strugar also tried to argue that the declaration wasn't enough.
"They have not entered any evidence by a person who compiled this evidence saying, 'I screwed up,'" Strugar said. He added that the new definition of "undercover" is way too broad.
"Under city’s definition it’s half the police force probably," Strugar said. "It’s bananas. They want a secret police force." He pointed to LA City Attorney Hydee Felstein Soto's recent attempt to get the Legislature to amend California's Public Records Act to allow government agencies to deny requests for “images or data that may personally identify" employees of that department.
"This is just buyers remorse," he said.
After an hour of oral arguments, the judge took the matter under submission.
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