LAKEPORT, Calif. – On Tuesday a visiting judge granted District Attorney Don Anderson's motion to strike down a case filed against him by Sheriff Frank Rivero, who alleged civil rights violations as a result of his being placed on a list of officers with credibility issues.
During the afternoon hearing retired Butte County Judge William Lamb agreed to strike all of the causes of action in Rivero's case based on an anti-SLAPP motion Anderson filed in the case last month.
Anti-SLAPP motions are meant to address “strategic lawsuits against public participation,” usually filed to prevent people from exercising their First Amendment rights.
In this case, Anderson argued that Rivero was trying to limit him from disclosing matters in the public interest, namely that Rivero had been placed on a “Brady” list of officers with credibility issues.
“Brady” references the 1963 US Supreme Court case Brady v. Maryland, which requires prosecutors to divulge to defendants in criminal cases any potentially exculpatory information, including information about officers with credibility issues who are involved in their cases.
Rivero filed suit against Anderson in late February to prevent disclosure of his Brady listing, which resulted from conflicting statements he gave to investigators about his actions during a February 2008 nonfatal shooting, in which Rivero – then a sheriff's deputy – shot at a man holding pepper spray. The man was uninjured.
In a March hearing, however, Lamb had ordered all of the court filings – including Anderson's determination – to be unsealed, making them all public.
In his suit against Anderson, Rivero alleged that his civil rights had been violated, arguing that there had been no due process involved in the Brady determination.
Rivero's attorney during the hearing, Ryan Jones of the Jones and Mayer law firm, said their case was fundamentally a procedural one.
Anderson, however, argued that case law established that Brady determinations are up to the discretion of district attorneys.
During the hearing, Lamb asked Jones if Rivero was seeking another hearing. Jones said yes, but in the confines of the District Attorney's Office, not court, and with additional due process considerations.
“Didn't he already do that once before?” asked Lamb with regard to Anderson's inquiry.
“He did something,” said Jones, but held that something didn't rise to the appropriate level of due process.
Jones said being put on the Brady list interferes with Rivero's desire to work in law enforcement. “I have trouble making that leap of faith from one to the other,” replied Lamb.
Lamb also said he didn't believe that an officer's credibility in a case can be questioned by the defense solely on a Brady listing. “That's what makes it not an immediate act of controversy.”
Jones told the court that personal animus between Anderson and Rivero was the root cause of the issue. There was no record of the Brady determination procedure, no appellate process and no opportunity to cross-examine witnesses.
“It's just as arbitrary and capricious as hair color,” Jones said of the determination.
Lamb said the evidence could easily have been construed another way by another district attorney, and he suggested Anderson acted just as reasonably as a district attorney who reached an opposite conclusion about Rivero's credibility.
Just because he came to the conclusion that he did doesn't mean Anderson's decision was arbitrary or capricious, Lamb said.
Jones argued that Rivero originally had been cleared of any issue regarding the shooting incident and that the matter was only reopened after he was elected. Lamb replied that Rivero was not on the Brady list for use of a firearm during his officials duties.
Jones said the issues already had been resolved but were recycled due to personal animus. “That's why we think additional due process is necessary.”
Lamb said he didn't believe Rivero and his attorney had made their case that the Brady determination provided “immediate jeopardy” to Rivero in his capacity as a law enforcement officer.
The judge also held that while due process rights – including the right to confront witnesses and cross-examine them – are guaranteed in court proceedings, they do not necessarily figure in the kind of investigation that led to Rivero's Brady finding.
“The stigma in and of itself is very problematic for a peace officer,” Jones said.
Lamb said Anderson was not on a witch hunt, but had obligations as a prosecutor, referring to the requirement to disclose such Brady information to criminal defendants. “He has a constitutional duty to do so and you’re trying to fault him for doing his duties,” he told Jones.
Jones disagreed, returning to his allegation of a personal disagreement between the men.
Lamb said he may have been missing something, but thought that Anderson had come to his conclusion based on conflicting statements Rivero himself had made.
Anderson explained that those conflicting statements were made during the investigation and were testified to by three witnesses who heard them. Specifically, Anderson said Rivero claimed he didn't tell the man he shot at to drop a can of pepper spray, while the witnesses claimed he did make that statement.
Lamb asked Anderson if another person reviewing the case could have come to a different conclusion. Anderson said it was difficult for him to say.
The judge then asked if Anderson was saying that the facts were so one-sided that a reasonable mind couldn't have come to a different conclusion.
“In my opinion, that would be correct,” said Anderson, adding that he didn't think a reasonable person could say Rivero did not lie during the original investigation. He also explained that he was aided in making his determination by his chief deputy, another experienced prosecutor and his chief investigator.
In response to Jones' statement claiming that Rivero had previously been cleared in the case, Anderson said that was not so.
“Sheriff Rivero was not cleared of any Brady issues back in 2008. He was cleared of any criminal violations” due to the use of a firearm, Anderson said, adding that initial reports indicated Rivero was not telling the truth.
Anderson said he could not speak to why former District Attorney Jon Hopkins did not pursue the case further. However, when Anderson received information shortly after he took office in early 2011 that alleged Rivero had lied, he said he was obligated to investigate it.
Lamb concluded that while there could have been things done to comport more with due process, he couldn't come to the conclusion that they were essential and integral rights in the Brady determination.
Jones argued that they needed to be able to do discovery in this case, and said Anderson's interpretation of inconsistent statements “is very different than our perception.”
Jones raised the issue of a constitutional right to liberty to pursue a chosen career field. Lamb replied that he couldn't accept that being on the Brady list would keep a person from getting another job in law enforcement, pointing out that in Rivero's case it was a five year old incident.
In turn, Jones pointed out that Rivero was just placed on the list in the last several months, significantly hampering his ability to get a job elsewhere.
“And I can't say that that's caused by the manner in which the hearing was conducted,” said Lamb, adding, “You're saying you don't like the result.”
Lamb, who dismissed the actions on the basis of the anti-SLAPP over a demurrer and motion to strike Anderson also had filed, said the anti-SLAPP is meant to nip such cases in the bud early.
He said the appellate court could take the case up if it chooses, but that Anderson could more forward with his duties without threat or a chill on his work, which is another reason for the anti-SLAPP law.
Still pending is a decision on attorney's fees, which the anti-SLAPP requires in successful cases. Anderson told Lake County News after the hearing that his estimate of fees ranges from as low as just over $3,500 to nearly $15,000, the latter based on the “lodestar” formula used for calculating reasonable attorney's fees.
A hearing before Mendocino County Judge Richard Henderson – which followed the one before Lamb – was to consider a clarification of Henderson's previous ruling ordering the county to pay for Rivero's attorney fees in the lead up to the Brady determination. The county wants to know how long it must continue to pay for outside counsel.
Anderson said he considers the anti-SLAPP fees moot if the county – not Rivero personally – will be ordered to pay them.
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