Protecting the blue wall of silence is not justice in LAPD whistleblower case
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- LAPD Officer Daniel Flores pleaded not guilty to 16 felony counts alleging that he secretly recorded other officers making racist, homophobic and misogynistic comments.
- Dist. Atty. Nathan Hochman argues that a ‘message has to be sent’ because it’s a police officer who broke the law.
- Others see prosecutorial overreach.
Los Angeles police Officer Daniel Flores may have broken the law when he secretly recorded his colleagues making ugly, unacceptable comments that were variously racist, homophobic, misogynistic or otherwise gross and unprofessional at best.
So L.A. County Dist. Atty. Nathan Hochman is right to take this, or any, violation of the law by a badge-wearing member of our police force seriously, no matter what Flores’ intent was.
But Monday, Flores was arraigned on 16 felony counts that could lock him up in state prison for 13 years (he pleaded not guilty).
That court hearing was preceded by an unusual and disturbing summary of the case filed with the court by Hochman. It seemed like an inappropriate attempt to smear Flores as a money-grubber with a convoluted plan to sue taxpayers into a sweet retirement (as opposed to intending to expose misconduct), while simultaneously giving an aw-shucks, it-was-all-in-good-fun defense of the ugly commentary of the recorded officers.
Regardless of what Hochman’s intent is in throwing the book at Flores, the result is one that will haunt this city for years to come: a police force in which the officers are clear that if you rat out the cops for misconduct, you get what you get.
“The message to everyone in the police department is keep your mouth shut,” said David A. Harris, a law professor at University of Pittsburgh and an expert on police misconduct. “You cannot stand up for principle or even for the policy of the police department, except at the risk of your own career and your own well-being, and perhaps your freedom.”
LAPD Officer Daniel Flores pleaded not guilty Monday to 16 counts of felony eavesdropping, and his lawyer accused Dist. Attny. Nathan Hochman of making “a desperate effort to save face” with a motion last week that sought to justify the prosecution of man who documented racist remarks by his peers.
Hochman spoke with me for nearly an hour about his reasons for what many, myself included, see as his prosecutorial overreach in this case. Before I tell you the reasons why I think Hochman has it wrong — dangerously wrong — in the decision to charge Flores’ so harshly, I’ll tell you where we agree.
First, we agree that cops shouldn’t do things such as refer to Black people as “monkeys,” as my colleagues Libor Jany, James Queally and Richard Winton reported allegedly happened in this case.
Cops, we concur, should not call women “bitches.” They also should not call women “rapeable,” even if, as Hochman’s filing assures us, “the use of the phrase ‘rape’ was not in a sexual context.”
I am not sure what the nonsexual context of rape is, but OK.
Cops should not make fun of, in no particular order, people with disabilities; candidates applying for jobs; co-workers; Asian people; Hispanic people; or people who may be overweight — as the officers in this case allegedly did.
“These comments are deplorable. They’re despicable. They’re racist. They’re homophobic. They’re sexist,” Hochman told me. “There’s no place in our society for them, and they should be punished.”
So Hochman and I agree that Flores may have broken the law, and that the comments of his fellow officers are unacceptable.
And now the roads diverge.
Because faced with those competing truths, Hochman could have used prosecutorial discretion — the art of tempering the law with the mores and ethics of the community.
He could have used that discretion to cut Flores a break, charge him at a lower misdemeanor level or not at all, and put the focus where it belongs — on the officers who disgraced their badge with their behavior, and what is seemingly a culture of disrespect and degradation within the unit charged with choosing the next generation of officers.
These are the officers charged with recruiting the officers of the future, so the stakes here are high. This is misconduct that the people of L.A. need to know about, because if these officers are so casual in their hateful comments, can we trust their judgment on hiring?
“On one hand, being a whistleblower doesn’t give a person the right to violate the law,” said Erwin Chemerinsky, the dean of UC Berkeley’s law school, who did an investigation on police culture in the LAPD in 2000 in the wake of the Rampart scandal. “On the other hand, I would hope that the district attorney would take context into account. And 16 felony charges seems really excessive.”
But Hochman argues that a “message has to be sent” because it’s a police officer who broke the law.
“If you don’t hold police officers accountable, it’s very hard to hold anybody accountable,” Hochman said. “I believe that no, we’re not going to let the ends justify the means, even if the ends may be laudable, like exposing bigotry, because it leads us down a very slippery slope.”
Hochman said Flores simply could have taken notes on the inappropriate comments and turned them in to superiors or the independent inspector general, which strikes me as either sweetly naive or disingenuous.
“The officer would be shunned; his career would be over, and he would probably find himself on the receiving end of some kind of retaliation,” Harris, the law professor, said of the likely outcome of that plan.
Chemerinsky said retaliation against whistleblowers has long been a part of the culture of the department. Make a complaint, his report in 2000 found, and an officer might get “freeway therapy,” transferred to someplace far from where they lived to send a message, or even find themselves without backup in a dangerous situation.
This decision to treat Flores so harshly, Chemerinsky said, comes off as “part of that long history of LAPD trying to very much crack down on whistleblowing.”
Hochman told me that he wants to make it “crystal clear” that “nothing in this prosecution should be read that we are in any way trying to chill whistleblowers.”
He added that he did use discretion.
“I hope you note in your article that the district attorney could have brought 122 felony charges, or 122 misdemeanors, or some combination of felonies and misdemeanors up to 122,” Hochman said.
Flores made 122 total recordings of 16 people. Hochman charged on the number of people recorded, not the number of recordings, he pointed out.
So sure, we can count that as discretion, I guess?
Los Angeles County prosecutors on Friday charged an LAPD officer with felony eavesdropping for making secret recordings of his colleagues’ racist, sexist and homophobic comments on the job.
This is where Hochman has his messages dangerously backward. Sure, hold Flores reasonably accountable for taking matters into his own hands, if he broke the law in doing so. Certainly, Flores knew there would be consequences to his actions.
But that Hochman is trying to frame this as a fair and reasonable prosecution, while protecting the officers who made the comments by giving us their weak-sauce excuses about having no ill intent, does not provide this city the justice it expects and deserves.
Hochman, you may recall, replaced George Gascón, a prosecutor who was accused of forcing his own values on the city.
Now, Hochman seems to be doing the same with his heavy-handed approach to Flores.
Hammering on Flores does not reflect the values of the majority of the Los Angeles community that wants a police force in which integrity and respect are fundamental, impunity is the outcast, and whistleblowers aren’t attacked, even if it turns out their motives aren’t pure.
Personally, I don’t care what Flores’ intent was in making the recordings. I don’t care if the officers caught on tape didn’t intend to offend, and I don’t care what Hochman intends the message to be with his vast over-charging of Flores.
I care about the result: a city in which misogyny and racism are just locker room talk, but breaking the blue wall of silence is a serious crime.
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Ideas expressed in the piece
The article argues that the decision by the Los Angeles County district attorney to charge LAPD Officer Daniel Flores with 16 felony counts of eavesdropping, carrying a potential sentence of up to 13 years, is prosecutorial overreach that will send a chilling message to officers who might expose misconduct inside the department.[2][4]
While acknowledging that Flores may have violated California’s two‑party consent recording law, the piece contends that prosecutorial discretion should have been used to reduce or decline charges, and instead prioritize accountability for the officers who allegedly made racist, sexist and homophobic remarks during confidential conversations in the LAPD recruitment unit.[1][2][4]
The column criticizes the district attorney’s detailed court filing for portraying Flores as a self‑interested “LAPD lottery” seeker intent on profiting from a lawsuit, and for appearing to minimize or normalize the offensive comments of other officers as banter that lacked ill intent, suggesting this framing protects colleagues at Flores’ expense.[1][3]
In addition, the article stresses that the officers whose comments were recorded work in the unit responsible for screening and hiring future LAPD officers, arguing that the ease with which derogatory remarks were made raises serious questions about judgment and fitness to shape the next generation of the force.[1][2][4]
The piece repeatedly invokes expert voices on police culture to argue that harshly prosecuting an officer who documented bigotry fits a long pattern of retaliation against LAPD whistleblowers, describing how officers who report misconduct have historically faced ostracism, undesirable transfers and even fears about lack of backup in dangerous situations.
By highlighting that Flores turned over more than 100 recordings to internal authorities and filed an internal affairs complaint seeking discipline for those responsible, the article suggests his actions were aimed at exposing misconduct, and that punishing him instead of focusing on those comments will deter others from reporting racism and misogyny within the department.[2][3]
The column emphasizes that the district attorney’s insistence that nothing about the prosecution is meant to “chill” whistleblowers is contradicted by the practical effect of aggressive felony charges, arguing that the real message to rank‑and‑file officers is: “keep your mouth shut” if you witness misconduct, or risk your career, safety and even your freedom.
Finally, the piece contends that the approach taken in this case does not align with the values of most Los Angeles residents, who want a police force built on integrity and respect, where bigoted “locker room talk” is condemned and where those who reveal internal wrongdoing are not treated as primary offenders, regardless of whether their motives are entirely pure.
Different views on the topic
In defending the charges, the district attorney’s office maintains that Flores clearly violated the California Invasion of Privacy Act, a decades‑old statute that makes it a crime to record confidential conversations without the consent of all parties, and argues that enforcing this law uniformly—regardless of motive—is necessary to protect the privacy rights of everyone in Los Angeles.[2][4]
The prosecution’s briefing asserts that Flores secretly recorded portions of confidential conversations with 16 colleagues, often initiating and participating in the discussions before activating his device, and then editing out his own remarks, suggesting calculated manipulation rather than a straightforward effort to document misconduct.[1][3]
The filing further contends that, in several recordings, Flores joined in insensitive banter and made derogatory comments himself, undermining any claim that he was simply a passive observer documenting others’ bigotry.[1][3]
The motion and press release argue that Flores’ goal was “less altruistic,” alleging that references to the “LAPD lottery” and his civil lawsuit against the city show he was seeking a large monetary payout and using the recordings to build a case for personal financial gain rather than to advance departmental accountability.[1][3]
From the district attorney’s perspective, the offensive remarks captured on the recordings, though “deplorable,” did not constitute criminal conduct, meaning Flores was not a whistleblower reporting a crime and therefore is not shielded by criminal whistleblower protections; the office presents this distinction as critical to maintaining the rule of law.[1][3]
The prosecution insists that sworn law enforcement officers must be held to particularly high standards, arguing that “a message has to be sent” that police cannot break the law—even for arguably laudable ends—because allowing illegal tactics in the name of exposing bigotry would create a “slippery slope” of rogue actions and erode public trust in lawful procedures.[1][3][2]
The district attorney notes that substantial discretion was already exercised: Flores made 122 recordings, yet the office chose to file 16 felony counts tied to the number of individuals recorded, rather than one count per recording, presenting this charging decision as a calibrated response to the volume of recordings and the seriousness of a sworn officer repeatedly disregarding privacy laws.[1][3]
Prosecutors and some legal commentators emphasize that officers who encounter misconduct have established “proper administrative channels,” such as the LAPD’s Internal Affairs Division and the independent Office of Inspector General, and argue that resorting to clandestine recordings outside those channels threatens investigative integrity and may contaminate or complicate disciplinary processes.[1][4]
By underscoring that Flores has already faced an internal investigation and recommended suspension for policy violations, and that the case is being handled by the Justice System Integrity Division, the district attorney’s office suggests the response is part of a broader effort to hold officers accountable when they break the law, rather than an attempt to shield other officers from scrutiny or suppress legitimate complaints.[1][2][4]