Norberto Santana, Jr.

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Sheriff Don Barnes has set what is apparently a new standard at the Orange County Sheriff’s Department, enforcing administrative discipline against deputies who plead Fifth Amendment protections when asked about what they do on the job.

The Deputy Sheriff’s union is taking Barnes to court, saying the new standard improperly changes what it means to be an Orange County Deputy Sheriff.

The Association of Orange County Deputy Sheriffs (AOCDS) – which earlier this year also unsuccessfully tried to shield Deputy misconduct records in court – argues Barnes new policy is unconstitutional under the First, Fifth and 14th Amendments to the U.S. Constitution.

“This new policy and/or practice represents a new substantive term and condition of employment for AOCDS members, such that it is expected that all members must abide by it,” reads the July 17 court brief filed by the Association of Orange County Deputy Sheriffs.

“In addition, Defendants (County of Orange) have indicated, implied, suggested, referenced and/or created the reasonable impression that the failure to abide by this new policy and/or practice would be grounds for discipline, up to and including termination of employment. Defendants have thus indicated directly to AOCDS members and representatives on unambiguous terms that the failure to waive one’s 5th Amendment right against self-incrimination in the future would lead to investigatory interrogations, disciplinary investigations, and discipline, up to and including termination of employment,” the court brief continued.

Barnes action comes several years after a rash of Deputy Sheriff’s pleaded Fifth Amendment protections in court when they were asked in October 2015 about their role in managing a controversial jailhouse informants network that has now gone on to complicate prosecution of numerous criminal cases by the Orange County District Attorney’s office.

Continued mishandling of the scandal was a lead factor in the 2018 election defeat of former DA Tony Rackauckas and the issue continues to hang over the administration of Barnes and new DA Todd Spitzer.

Frustrated by the lack of any kind of meaningful review by the state attorney general, Barnes announced his own internal probe earlier this year.

According to the AOCDS court filing, it seems that three deputies – Seth Tunstall, Bill Grover and Ben Garcia – who all took the Fifth in court back in 2015 were interviewed in January and February 2019 as part of Barnes’ internal review.

“At this investigatory interrogation, the members (Tunstall, Grover and Garcia) learned that they were being investigated and threatened with discipline solely as a result of the prior exercise of their Constitutional right,” reads the AOCDS court filing.

“In the investigatory interrogation, County investigators made clear that they considered the members’ act of invoking their 5th Amendment right a violation of County policy that could lead to disciplinary action, up to and including termination. Had the members waived their Constitutional right, they would not have been subjected to these investigatory interrogations.”

Now at first glance, my sense was to agree with AOCDS President Tom Dominquez, who I just fought in court for half of 2019 and who even tried to short me on a $50,000 legal bill to fight the reckless AOCDS effort in OC Superior Court to seal deputy misconduct records.

“Law enforcement officers do not relinquish their constitutional rights when they pin on a badge,” Dominguez loudly told me when I interviewed him late last week, echoing his official statement and an often-repeated quote when it comes to questions about deputies’ actions.

Yet it seems they actually do.

My first thought was there’s no way the government can force a person to waive a constitutional right or make doing so a condition of employment.

Cops need and deserve Fifth Amendment protection as much as any other Americans.

Yet upon further research and interviews, it turns out there’s a big constitutional difference in being protected against self-incrimination in a criminal proceeding and a personnel action.

Erwin Chemerinksy, Dean of the law school at UC Berkeley and also a Voice of OC board member, noted that “The Fifth Amendment means that a person can refuse to answer questions that might lead to criminal liability. No adverse inference can be drawn in a criminal trial from this silence. Police, like all others, can assert this if they face possible criminal liability.”

But Chemerinsky also notes, “it does not mean that there cannot be other adverse consequences, including a negative inference drawn in civil or administrative proceedings.”

County policies reviewed by Voice of OC do indicate that a key part of a deputies’ job is to be available to testify truthfully in court.

It even looks like the very laws like the Police Officers Bill of Rights (POBRA), which law enforcement unions like AOCDS pushed so hard to pass, actually does itself restrict officer’s ability to seek Fifth Amendment protections.

“The Fifth Amendment protects against compelled self-incrimination,” said Chapman Law School Professor Mario Mainero, who also served as a chief of staff to former County Supervisor John Moorlach. “Thus, Sheriff Barnes and the Department could not force a deputy to testify, or to give up their right to invoke the Fifth Amendment privilege against self-incrimination in a custodial interrogation.”

However, Mainero notes – in his usual exact detail – how personnel matters are different.

“In Alameida v. State Personnel Board, a 2004 Court of Appeal opinion, the Court said the following,” Mainero notes.

“ … peace officers in interrogations under the [Peace Officers Bill of Rights] Act do not have the right to remain silent. Thus, ‘an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.’ ([Government Code] § 3303, subd. (e).) Statements made by the officer during the interrogation may be used in disciplinary actions against the officer. ([Government Code] § 3303, subd. (f)(1).) ‘As a matter of constitutional law, it is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding.’ (Lybarger v. City of LosAngeles (1985)) “[A]lthough the officer under investigation is not compelled to respond to potentially incriminating questions, and his refusal to speak cannot be used against him in a criminal proceeding, nevertheless such refusal may be deemed insubordination leading to punitive action by his employer.”

“In Lybarger, the California Supreme Court reversed the firing of a police officer who claimed the Fifth Amendment privilege, but only because he was not advised of the right to remain silent and the right to counsel,” Mainero notes.

“It acknowledged that the POBRA expressly permitted sanctioning, including termination, for officers who invoked their Fifth Amendment privilege, so long as, prior to any custodial interrogation, they are advised of their rights and of the result if they invoked their rights.

Thus, so long as the deputy sheriffs had been advised of their POBRA rights (and given that Lybarger was decided in 1985, I assume that those procedures are in place, the Sheriff’s Department is well within their rights to punish officers who pleaded the Fifth Amendment as part of the snitch scandal,” Mainero said.

Sheriff Barnes hit the same tone in the statement that was emailed to me when I sought his take.

”The department fully understands the constitutional protections afforded to all people, including those rights that extend to our employees. Those rights, however, do not prevent, nor will it deter, me from holding employees accountable for violating department policy or failing to meet our expectations of performance.”

Now the biggest question here is why was this standard apparently never applied before?

That’s probably why Barnes – who received a whopping $650,000 in independent campaign support from the Deputy Sheriff union – doesn’t sit down to take questions from reporters on these issues and just sends statements.

Orange County jails – one of the county’s largest budget line-items – have repeatedly been found to be a mess with revolving-door leadership.

The jailhouse informant crisis wasn’t triggered by three badly-trained deputies.

“It was clear to me that these deputies were doing exactly what they were told to do and what was expected of them,” Dominguez said.

Keep in mind that in recent years there have been high profile escapes, followed by the informant scandal followed by botched recordings of inmate phone calls, which is now potentially endangering another set of prosecutions.

Many Orange County civic and political leaders, even watchdog institutions like our Grand Jury, have mistakenly concluded that the illegal use of jailhouse informants either never existed or was a simple training mistake.

As such, the Orange County Board of Supervisors, not even their county Office of Independent Review, has rarely uttered a public word about the crisis.

Yet the fact that Deputy Sheriffs had to seek out Fifth Amendment protections when asked about their work should speak volumes about their actions and send us all a strong message about the nature of Orange County jails.

That’s why the founding fathers left us warning beacons like the Fifth Amendment.

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