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By PORAC | December 1, 2017 | Posted in PORAC LDF News

Judge Denies Access to Officers’ Cellphones In “Surfer Gang” Case

KEVIN A. FLAUTT
HOWARD A. LIBERMAN
KENNETH E. BACON
Attorneys
Mastagni Holstedt, APC

On October 3, 2017, the United States Federal District Court for the Central District of California denied access to the personal cellphones of Palos Verdes Police Officers’ Association members in the case of Cory Spencer, et al. v. Lunada Bay Boys, et al.
The controversy that led to the District Court’s decision involves allegations that an alleged surfer gang known as the “Lunada Bay Boys” unlawfully interfered with the use and enjoyment of Lunada Bay, located in the Palos Verdes Estates (PVE) area. Plaintiffs in the case alleged that Lunada Bay is well known in the surfing world for localism, a practice whereby resident surfers attempt to exclude outsiders through threats, intimidation and violence. The plaintiffs alleged that the City of Palos Verdes Estates (City) was aware of the Lunada Bay Boys’ criminal activity, but that the City has a policy of not taking action against the Lunada Bay Boys in violation of 42 U.S.C § 1983. In order to prove the City’s alleged policy of inaction against the Lunada Bay Boys, the plaintiffs sought access and permission to preserve and image data maintained on personal cellphones of our client PVE police officers. Plaintiffs alleged that this data would show communications between police officers and the Lunada

Bay Boys that illustrated how the City supported the surfer gang in its efforts to exclude nonlocals.
The Peace Officers Research Association of California (PORAC) Legal Defense Fund approved Mastagni Holstedt, APC to defend the PVE Police Officers’ Association (POA) members with respect to the requested access and permission to preserve and image data maintained on cellphones. For over a year, attorneys at Mastagni Holstedt defended PVE POA members’ privacy rights to their personal cellphones against the plaintiffs’ frequent attempts to work around the members’ rights.

In August 2016, in response to a request made by the plaintiffs to preserve electronically stored information relating to the Lunada Bay Boys lawsuit, including information stored on personal cellphones of officers, the PVE Chief of Police requested that PVE POA member police officers not delete any information from their personal phones and also give access and permission to preserve and image their personal cellphones in connection with the pending litigation. Howard Liberman and Ken Bacon, attorneys at Mastagni Holstedt, defended and represented PVE POA members as the City and PVE POA met and conferred over the request. Mr. Liberman argued that the request violated the privacy rights of the PVE POA members, pointing to the fact that no POA member had been named party to the lawsuit, and the request was an overbroad, unsupported fishing expedition into the private data on police officers’ personal cellphones. Mr. Bacon argued that efforts by the City, the Chief of Police or the Department to obtain access to cellphones owned or used by officers employed by PVE Police Department would violate the personal privacy rights of the officers under the State of California and United States constitutions as well as their statutory protections under Labor Code § 980, the California Electronic Communications Privacy Act (Penal Code § 1546, et seq.), the Stored Communications Act (18 U.S.C § 2701, et seq.), the California Comprehensive Computer Data Access and Fraud Act (Penal Code § 502), and other state and federal privacy, labor and electronic data statutes. 

In November 2016, the City informed the plaintiffs that it agreed with the PVE POA that it did not have the authority to compel any police officer to produce electronically stored information from his or her personal cellphone.
In June 2017, the plaintiffs deposed PVE POA President Sergeant Steve Barber (and several other PVE POA officers) in an attempt to gather information that would justify access to police officers’ personal electronic devices. Sergeant Barber was defended at his deposition by Mastagni attorney Kevin Flautt, who objected to and halted the plaintiffs’ repeated lines of questioning attempting to seek private and protected information relating to personal communications.

Ultimately, the plaintiffs attempted to circumvent PVE POA’s rights that Mastagni’s attorneys asserted throughout the case by seeking the Federal District Court’s aid in moving to compel the City to force the police officers to produce data on their personal cellphones. The plaintiffs argued that the deposition of Sergeant Barber somehow alerted them to the fact that PVE police officers used their cellphones for work-related communications involving the Lunada Bay Boys. The Court held hearings on the pending discovery disputes on September 5, 2017, and September 12, 2017. Attorneys from Mastagni Holstedt, APC again represented PVE POA and again asserted the POA members’ rights and the plaintiffs’ failure to make any showing justifying the broad invasion of officers’ privacy rights. The Federal District Court held that Sergeant Barber’s deposition did not provide a basis for the plaintiffs to start seeking the records of any PVE police officer’s cellphone from the City defendants. Based on this, and the plaintiffs’ failure to provide any other justification to invade the privacy rights of police officers, the Court denied the motion requesting access to PVE police officers’ personal cellphones.

The PVE POA is grateful to PORAC’s Legal Defense Fund for providing the legal support to successfully beat back this attempted violation of officers’ privacy rights in court.

About the Authors

Kevin A. Flautt, Howard A. Liberman and Kenneth E. Bacon are attorneys with Mastagni Holstedt, providing representation to PORAC members in disciplinary, administrative and court actions throughout the state of California.