Legal Experts Declare City TigerConnect Review a Whitewash

By: 
Stephen Downing

Part One of Two

Following publication of the Beachcomber’s Sept. 18 story (in an alliance with Al Jazeera) reporting on the illegal destruction of evidence over the past four years by the Long Beach Police Department (LBPD) using a self-destructing (ephemeral) Instant Messaging phone app called TigerConnect (formerly TigerText), City Attorney Charles Parkin and City Manager Pat West formed a partnership to announce suspension of the app’s use until an “outside independent review” could be completed.

The law firm, Best, Best & Krieger (BBK), already under a $100,000 blanket contract with the city for “as-needed legal services for general legal matters in accordance with department needs and/or fund availability” was tapped by the City Hall partnership to provide an attorney to conduct the purported “independent review.”

The BBK law firm was most recently engaged to litigate on behalf of the city when Mayor Robert Garcia disagreed with ballot text submitted by the Long Beach residents he appointed to write opposition language for Measure BBB, the mayor’s ballot initiative to extend term limits.

BBK is also renowned as the law firm sued by the City of Bell when it claimed faulty legal advice following the scandals that exposed extraordinary salaries and benefits, poor advice on business license fees and outlandish loans provided to employees by the city manager – who was later sentenced to 12 years in prison and ordered to make restitution of $8.8 million in a corruption scheme that nearly bankrupted the city.

The attorney who filed the lawsuit against BBK was quoted as saying, “The lawsuit seeks to place responsibility for not protecting against those abuses of power where it belongs and obtain just compensation from those responsible.”

The law firm subsequently paid the City of Bell $2.5 million to settle the lawsuit.

BBK’s Report to the City

On Oct. 25 the 200 attorney, ten-office law firm assigned Of Counsel Attorney Gary Schons to conduct the independent review. Schons’ credentials identify him as an experienced prosecutor specializing in public integrity issues.

Fifty calendar days later, Dec. 14, the City Hall partners announced that Schons had completed his review.

 In his “Report to the City of Long Beach,” Schons concluded that the use of the ephemeral instant messaging app., TigerConnect, “appears” to fall within state record laws, was purchased and used in compliance with city policy, that there was no evidence to support claims of illegal use or misuse, no complaints of adverse impacts on criminal or civil cases and that “the self-destruction of messages on the TigerConnect app and the policies of the city permitting that function, “do not violate or prevent compliance with the Public Records Act.”

‘BBK Report is a Whitewash’

“In my opinion, the report is a whitewash,” said Mark Pedroli, lead lawyer for the “Sunshine and Government Accountability Project.”

Pedroli, who has extensive experience in open records litigation, currently serves as the lead attorney in the only litigation nationwide accusing the government (a governor) of destruction of public records via the use of burner or ephemeral apps.

Pedroli said the 31-page Schons report is “built on the incorrect assumptions that all public officials do nothing wrong and won’t misuse an ephemeral app.”

Clearly offended by Schons’ conclusions, Pedroli added, “The report had the audacity to compare ephemeral communications to phone calls.”

The comparison he referenced is emphasized twice in the report. Schons wrote: “We’ve had ephemeral messaging for decades – It’s called a phone call.”

Tom Beck, the distinguished civil rights attorney who recently won a unanimous jury verdict that exposed the perjury of two LBPD officers and sustained a case of vicious brutality, said, “Schons’ analysis makes a disingenuous comparison to ephemeral communications to justify the existence of self destructive communications when they are clearly not the same.”

Beck explained that once a verbal communication disappears it’s properly thought of as ephemeral and not subject to criminal or civil retention rules. “But when converted to the written word, say for example a speaker dictating his thoughts into a phone for text messaging, it indisputably becomes a “record” subject to retention and disclosure rules,” he said.

Tom Barham, a former Los Angeles Sheriff’s lieutenant, decorated combat veteran and prominent constitutional rights attorney cited the 9th circuit appellate case, Scribner v. WorldCom, when evaluating Schons’ analogy. Barham pointed to the courts reference to the Lewis Carroll classic, “Through the Looking Glass,” when the appellate judge wrote, “Like Alice, we are of the opinion that language is not infinitely elastic.”

In a recent ruling by Missouri’s Cole County Circuit Judge John Beetem – while presiding over an “ephemeral app’ trial in which Pedroli serves as lead council – the “Alice in Wonderland” reference from the Ninth Circuit took on another dimension when Judge Beetem ruled: “The argument that the use of the Confide app (another ephemeral messaging app) excuses compliance because nothing is retained holds less water than a policy of using disappearing ink for all official documents.“

Snapchat Argument Misleads

In further support of the LBPD using TigerConnect, Schons argued in his report, “In addition to TigerConnect, the city has deployed Snapchat which has “ephemeral messaging’ capabilities.”

Schons reported that Snapchat is deployed on nine devices for social media purposes and employed by users in various city departments.

The Snapchat comparison to TigerConnect is another flawed “apples to oranges” analogy according to Nick Morrow, a former Los Angeles sheriff and court qualified drug recognition and investigations expert.

Morrow said, “Snapchat is routinely used by drug dealers who think when the text disappears from their cell phones they are in the clear not knowing that a court order or search warrant served on the Snapchat company will produce admissible evidence of the texted negotiation and delivery arrangements of their crimes because the criminal messaging is stored on company servers.”

“But, that’s not the case with the LBPD’s use of TigerConnect,” Morrow said. “The LBPD paid an extra fee so that not only would their messages be automatically deleted from their cell phones within a five-day period, but also from TigerConnect’s server. They are not recoverable.”

Text Messages Support Police Reform

In his Report to the City Schons wrote, “… the speculation offered by the ACLU and a deputy public defender that the use of the TigerConnect app by the PD might have violated various law and court decisions is simply sensational conjecture and, as a matter of law, inaccurate.”

Schons’ blanket statement (examined in Part Two of this two-part series) did not address the adverse damaging consequences of text-evidence destruction upon effective police oversight, supervision, management and audit competencies occasioned by the LBPD’s use of the TigerConnect app.

Records related to 1991 transcripts of LAPD patrol car computer messaging exposed Los Angeles police officers – several of whom were accused in the beating of Rodney G. King – for making racial slurs about African Americans.

Messaging such as, “Yeah, it was a big time use of force,” “I haven’t beaten anyone this bad in a long time” and “it’s like right out of “Gorillas in the Mist,” all served as evidence to support terminations, criminal prosecutions and the launch of a major civic movement that contributed to extensive reforms in the LAPD.

Just eight days prior to publication of Schons’ Report to the City, federal criminal charges were brought against four St. Louis police officers. The indictments were supported by the involved officer’s text messages.

The messages were sent just prior to the specialist officer’s deployment to a public demonstration where they viciously beat an undercover African American police officer.

The following are six of the 17 text messages between the officers that are outlined in the criminal indictment:

 “Hey we are both on the same arrest team. Are we meeting at 20th and Olive?             

“I know right. Yes I guess so, let’s whoop some a**.”

“The more the merrier!!! It’s gonna get IGNORANT tonight!! But it’s gonna be a lot of fun beating the hell out of these sh**heads once the sun goes down and nobody can tell us apart!!!!”

“I’m on Sgt. **’s arrest team! Me and a BIG OL black dude r the guys that are hands on! No stick or shield.. just f**k people up when they don’t act right!...”

 “Just deployed to U city …u will see the REAL POLICE come in and clear these f**k**s REAL QUICK. We ain’t f**kin w them tonight.”

 “…The problem is when they start acting like fools, we start beating the s**t out of everyone on the street after we give two warnings…”

 “Remember we are in south city. They support us but also cameras. So make sure you have an old white dude as a witness.”

The text messaging – recovered from a server – will be used as evidence to support the termination and prosecution of four rogue police officers and provide the catalyst for police reform in the City of St. Louis.

Prior to the Beachcomber’s discovery of TigerConnect being used by the LBPD, numerous public records requests (PRA) were made over the years asking the city to produce text messaging related to LBPD incidents involving controversial shootings, excessive use of force, misconduct and the cover-up surrounding the DUI/Domestic violence scandal involving 2nd District Councilmember Jeannine Pearce.

In each case the LBPD and City Hall informed the Beachcomber that “There are no responsive documents,” as they did when the first PRA was filed asking for financial documents that would reveal the use of TigerText by the LBPD.

Faulty Logic

Pedroli summed up his evaluation of Schons’ “comparative argument that “we’ve had ephemeral messaging for decades – It’s called a phone call,” stating: “The comparison is not only pure farce but it demonstrates clear bias and shows a total disregard for record retention laws and government transparency in general.”

The open records expert added, “If this faulty logic is accepted, what’s to stop the city from comparing emails, memos and all written communications to phone calls and shredding everything?”

Part Two

Part Two of this two-part series will report on the depth and quality of the Schons’ investigation related to his conclusions that, “there is no evidence to support claims of illegal use or misuse of the TigerConnect app by the PD.”

Stephen Downing is a resident of Long Beach and a retired LAPD deputy chief of police.

Stephen@beachcomber.news

[Editor's Note. The following response was received from the city (after this story was published) as part of a Public Records Act inquiry: "The total amount of fees invoiced to the city and paid relating to the TigerConnect review and report is $18,154.36.  The invoices were submitted by the law firm of Best Best & Krieger. The content of said invoices is exempt from disclosure by the Public Records Act as the content of the invoices is subject to the Attorney Client Privilege.  (See Government Code Section 6254(k); California Evidence Code Section 952 (Confidential Communications between Client and Lawyer);Roberts v. City of Palmdale(1993) 5 Cal. 4th 363,370; Los Angeles County Bd. Of Supervisors v. Superior Court (2016) 2 Cal. 5th282.)"]

 

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Comments

WOW!! the city paid extra money to have the text messages deleted form TT servers!! what else does the city need to show that this is a bull sh*** investigation to cover up misconduct. If ST. Louis PD had Tiger Text those text messages would have never be discovered. This is exactly what the city and PD is trying to hide. This only proves that the LBPD, and City are both working together to cover this up. Its time for a RICO investigation by the FED' s the the PD and City staff.. lets wake-up LB.

Long Beach hired a lawyer to tell them what they wanted to hear, and for a fee, the lawyer obliged. Text messages are like phone calls?! No, of course not, and everyone knows it -- at least, everyone who has ever used e-mail. Remember when the police chief said that texts were like "handwritten notes"? This comparison drew too much laughter. Now they're clinging to the "phone call" analogy as a flotation device.

December 7, 2018 -- the day that the city's Tiger Text report was released -- is a day that will live in infamy in Long Beach. On the same day, a jury awarded $2.5 million to a LBPD officer who sued the department for retaliation in a case illustrating the unbounded, petty vindictiveness of the LBPD. On the same day, former LBPD commander David Hendricks was charged with two counts of battery and a count of resisting and obstructing an officer during an altercation in August. The Tiger Text report names Hendricks (along with Lloyd Cox) as a top-level decision-maker regarding the use of ephemeral messaging in the LBPD. Some might get the impression that criminals rise in the LBPD's ranks, approving new ways to cover up their misconduct, while good officers are punished.

Unfortunately for the LBPD and the city, larger minds than Best Best & Kreiger are confronting the implications of Tiger Text. In a lawsuit involving the use of the app at CBS, one cyber forensics expert wrote in a legal filing:

“In my matters during 16 years as an FBI agent, and three years in private practice, during which time I have interacted with dozens of companies both large and small, I have not personally observed a single company that employed an ephemeral messaging application such as TigerText for legitimate business communications by senior executives or in-house counsel.” (Source: https://www.thewrap.com/tiger-text-app-cbs/)

If the city believes that they've put the issues of LBPD secrecy and corruption to rest with this flimsy report, they're sorely mistaken.

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