LAPD launches criminal probe of racist leak at request of Martinez, De León, Cedillo

Los Angeles police Chief Michel Moore announced Tuesday that his department has launched an investigation into the source of the leaked racist recordings that thrust City Hall into a harsh national spotlight.

Speaking to reporters at a briefing, Moore confirmed that the incident was under investigation by the department’s Major Crimes Division, the results of which would be presented to “the appropriate prosecuting agency” for possible criminal charges.

“The department has initiated a criminal investigation into the allegation of eavesdropping into the L.A. Fed meeting involving then-Councilperson Nury Martinez, Councilmember Gil Cedillo and Councilmember Kevin de León and the Fed president Mr. [Ron] Herrera,” Moore said, referring to the Los Angeles County Federation of Labor.

On Tuesday, Moore said the department’s investigation was launched at the request of “individuals that were present at that meeting.” He was asked, “So, Nury Martinez, Gil Cedillo, the president of the L.A. Fed and Kevin de León came to the LAPD and asked for an investigation into it.” Moore’s answer: “Yes.” Late Tuesday, a spokesperson for De León said the council member did not request an investigation.

“They approached the department on Friday, this past Friday, and requested that we conduct an investigation into the illegal recording of their private conversation,” Moore said. “The department immediately dispatched detectives to conduct recorded interviews of the individuals and our investigation will continue as to the facts and circumstances of how the meeting occurred and information from the victims of why they believe the recording was unlawful and also understanding from them the assertion that it was not with their permission.”

The leaked recordings were met with almost universal condemnation, with leaders from President Biden on down calling for the resignation of the three council members. So far, only Martinez has resigned, while the other two city officials have resisted, despite mounting pressure. Herrera also has stepped down.

The LAPD’s probe marks a turnaround, of sorts. Last week, the department said it was not investigating because no one had filed a report.

The recordings took place some time last year at the offices of the Federation of Labor, which has called the leak “illegal” and vowed to have those involved prosecuted. After the recordings were posted on Reddit, the union attempted to block the Los Angeles Times from publishing details from the audio, saying they were obtained illegally. The Times refused to halt publication.

It is unclear how the recordings were made. In California, recording conversations without a person’s consent is illegal, with rare exceptions.

As such, legal experts say, the recordings could open the door for criminal charges against the person who made them.

“It certainly looks like someone violated California’s two-party consent rule, so it makes sense the police department would investigate an apparent violation of the law,” said Jessica Levinson, a Loyola Law School professor and former president of the City Ethics Commission.

“There are obvious people to interview in the room and … questions about who had access to the room,” Levinson said, while noting that the alleged crime likely wouldn’t rise to the level of a felony. “This is a misdemeanor and LAPD may not typically use search warrants in such cases. But this is not a typical investigation. How often does a secret recording lead the president of the United States to say these people should step down?”

But, she added, the LAPD won’t be able to take action against the individual who posted the recordings on Reddit as long as they are not the person responsible for making the surreptitious recordings in the first place. She said that, while the LAPD may be able to identify the Reddit poster, it is likely that person could seek to invoke California’s shield law to protect the source of the recordings.

Still, prosecutors have won criminal cases in California over illegal recording and distribution of illegally obtained media, according to Susan Seager, an adjunct professor at UC Irvine School of Law and a longtime media lawyer.

The person who made the City Council recording “possibly violated California law forbidding people from secretly taping people’s conversations where they have a reasonable expectation of privacy,” Seager said. She added that the initial aim of the prohibition on recording people without their consent was to “stop people from tapping people’s phone calls, but it can also be applied to taping people if they’re not on the phone.”

A court could find that the recording was proper if it deemed the content of the audio recording a matter of public concern. The question of whether what was said in the audio recording is of sufficient public concern to outweigh the privacy rights of anyone recorded without their knowledge would be key in a potential criminal case, Seager said.

The U.S. Supreme Court weighed in on the issue in 2001, when it found in Bartnicki vs. Vopper that members of the media are protected under the 1st Amendment from prosecution for publishing illegally intercepted material if they obtain it legally and it is of significant enough public concern.

“I think that 1st Amendment protection to report on a matter of public concern would apply to an individual as well as a media organization,” said Seager.

In the City Hall case, California Atty. Gen. Rob Bonta has announced a broader probe of the Los Angeles redistricting process that took place last fall, with Bonta saying an inquiry is needed to “restore confidence” in drawing the city’s 15 council districts. That process was underway during the recorded discussions, in which then-council president Martinez is heard making racist remarks while talking to former labor leader Herrera, Cedillo and de León about redistricting.

Moore said that detectives would seek to determine, “as far as it possible,” how the recording was produced, as well as identifying the person responsible.

Asked by the Associated Press whether a suspect had emerged, Moore said no.

Moore said that he had been in contact with the attorney general to ensure that the two probes didn’t needlessly overlap. He said he had also spoken with the Los Angeles city attorney’s office regarding the department’s investigation. Depending on its outcome, he said, he would also reach out to the county district attorney’s office, which handles felony cases.

Days before the case was launched, Moore discussed the department’s potential role in the case during a radio interview.

During his semi-regular appearance on Larry Mantle’s popular “AirTalk” show, Moore said that, while he normally tried to steer clear of politics, he “couldn’t remain silent” when he heard the racist remarks, which he said didn’t represent the L.A. he knows.

Moore said he “respects the fact” that Martinez resigned from her post, while adding that he couldn’t see how the remaining two council members “could be effective in any manner.”

The recording was made during an October 2021 meeting at the federation’s offices. Martinez and the other Latino leaders present were seemingly unaware they were being recorded, as Martinez said Councilman Mike Bonin, who is white, handled his young Black son as though he were an “accessory” and described the boy as a “changuito,” or like “a monkey.”

Martinez also mocked Oaxacans and said “F— that guy … He’s with the Blacks” while speaking about Los Angeles County Dist. Atty. George Gascón. The three also made racist remarks about Jewish and Armenian residents.