LAKEPORT, Calif. – Lake County’s district attorney this week filed a motion to strike down the sheriff’s lawsuit against him, citing First Amendment protections in revealing the sheriff’s placement on a list of officers with credibility issues.
District Attorney Don Anderson filed the “anti-SLAPP” motion against Sheriff Frank Rivero, which is set to be heard at 1:30 p.m. Tuesday, May 7, in Lakeport before retired Butte County Superior Court Judge William Lamb.
On May 7 Lamb also will consider the demurrer Anderson filed earlier this month, which seeks to have Rivero’s case dismissed for lack of merit.
With both the demurrer and anti-SLAPP, Anderson is asking the court to make Rivero personally pay for attorney’s fees.
An anti-SLAPP motion is meant to address what are called “strategic lawsuits against public participation,” according to the California Anti-SLAPP Project.
The motions generally require a plaintiff to prove at the start of the proceedings that they can win the case if it is to proceed.
“In this matter, Plaintiff has failed to state any facts that he could prevail on any cause of action,” Anderson wrote. “What Plaintiff is attempting to do is create new law where there is ample authority in opposition to his position.”
SLAPP suits generally are filed against people and organizations to prevent them from exercising their First Amendment rights of free speech and petitioning the government, the California Anti-SLAPP Project Web site explains.
Such suits often focus on matters like malicious prosecution and abuse of process, defamation, libel and slander.
In his filings, Anderson stated that Rivero is attempting to limit him from disclosing matters in the public interest, and that anti-SLAPP statutes supporting striking Rivero’s entire complaint.
Rivero is seeking to stop Anderson from disclosing either publicly or, as he’s required to do to meet his prosecutorial responsibilities, to criminal defendants that Rivero was placed on a “Brady” list of officers who are determined to have lied during the course of their duties.
“Brady” comes from the 1963 US Supreme Court case Brady v. Maryland, which requires prosecutors to disclose to criminal defendants any exculpatory evidence, including information about credibility issues relating to peace officers involved in their cases.
After nearly two years of investigation, in February Anderson placed Rivero on the Brady list, having determined that Rivero lied to investigators about the actions he took during a February 2008 nonfatal shooting.
At that time Rivero, then a deputy sheriff, shot at a man with a can of pepper spray, a violation of sheriff’s office policy. Initially, reports indicated he told sheriff’s office investigators that he saw the pepper spray but later told them he couldn’t tell what the man held in his hand.
After the Brady determination, Rivero followed up by seeking a restraining order against Anderson with a view toward getting an injunction to stop the release of the information.
However, just before Rivero filed to stop the disclosures retired Judge David Herrick already had ordered the Brady information released to three Hells Angels members set to go on trial later this year for a fight with a rival gang member.
At a March 4 hearing, Lamb denied the restraining order application but allowed the rest of the case to move forward; however, he also unsealed all of the records related to Rivero’s Brady finding and also kept the hearing open, despite Rivero’s attempt to have it closed.
Rivero is alleging violation of his civil rights, invasion of privacy, and is seeking declaratory relief and a writ of mandate to have Anderson’s decision set aside.
California’s anti-SLAPP legislation is marking its 20th anniversary this year; it became law in 1993.
In California, anti-SLAPP suits often are used to deal with libel and slander cases. Locally, the Lake County Record-Bee successfully used an anti-SLAPP case to defend against a libel case filed against it by a local doctor in 2008, and to receive attorney fees, as Lake County News has reported ( http://bit.ly/151xeD9 ).
Anderson cites Code of Civil Procedure and case law that establishes that anti-SLAPP protections can be invoked by a public entity, and that such protections are granted to public employees when performing their duties.
In a 1996 Ventura County case, Bradbury v. Superior Court, the court ruled that “utterances by a district attorney on a matter of public interest, even if erroneous, promote the goals of the First Amendment to the United States Constitution (First Amendment), i.e., the free interchange of ideas and the ascertainment of truth. To further this goal, we hold that Code of Civil Procedure section 425.16, enacted to curtail SLAPP suits (strategic lawsuits against public participation), applies to a governmental entity and its representatives who are sued for their written and verbal comments concerning an official investigation.”
That same case also stated, “First Amendment principle applies here because the investigation, the report, and the utterances made thereafter involved a matter of public interest.”
The courts also have held that it’s in the best interests of the community that public officers investigating crimes and instituting criminal proceedings should be protected from harassment in the performance of that duty, Anderson’s filings state.
While Rivero has claimed his civil rights have been violated during the Brady process, Anderson wrote, “As in Bradbury v. Superior Court the case involves causes of action for civil rights violations and invasion of privacy. The Court held that these causes of actions are subject to the matters subject to the Anti-SLAPP protections, as they are matters of public interest.”
Anderson is seeking attorney’s fees, citing mandatory award of such fees in successful anti-SLAPP motions.
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