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A state appeals court has unanimously revived a lawsuit seeking records about alleged illegal use of informants, often called jailhouse snitches, by Orange County law enforcement officials.

The ruling Wednesday by a panel of three justices overturns a lower court decision that tossed out the American Civil Liberties Union lawsuit on the basis that the people suing did not directly suffer harm, known as having standing to sue

The appeals court found the plaintiffs do in fact have standing to sue.

“The operative complaint describes a surveillance program in flagrant disregard of the government’s constitutional duties and limitations. Plaintiffs allege that defendants have gone so far as to permit confidential informants to threaten to kill defendants if they do not confess to a crime, and they then compounded the transgression by actively concealing the existence of the [informant] program,” the appeals court ruled.

“We would be hard pressed to think of a more outrageous constitutional violation. Plainly, the constitutional rights the [informants] program is alleged to have violated—the rights to due process and the assistance of counsel, among others—are public rights that every citizen has an interest in upholding,” adds the ruling, by justices Raymond J. Ikola, Richard D. Fybel and David A. Thompson.

[Click here to read the ruling.]

The case is in its early stages, before the court decides if the alleged facts are true, and now goes back to Orange County Superior Court for further proceedings. A judge will decide which documents the county must turn over to the ACLU ahead of a potential trial or settlement deal.

The ACLU is seeking an order requiring disclosures of every case where a jailhouse informant provided information, requiring the sheriff to maintain a database of jailhouse informants, and notification of past defendants where jailhouse informants were used.

They’re also asking the court to issue orders requiring the DA’s office to follow its legal duties to disclose evidence in a criminal proceedings and not use jail informants to gather info from criminal defendants about crimes they’re already charged with.

The court’s focus will be whether the informant program is ongoing and whether it is illegal, the appeals justices wrote.

County officials had argued in a court filing that the suit is improperly trying to “open the door” to having civil courts perform a “shadow review” of particular criminal cases that would “result in multiple, duplicative, and potentially inconsistent and/or redundant decisions.”

“The requested relief would improperly require a trial court to review and second-guess the propriety of proceedings in criminal cases,” the county wrote in its opposition to the appeal.

Responding to the ruling, District Attorney Todd Spitzer’s spokeswoman said the lawsuit was originally filed against his predecessor, and that Spitzer has implemented reforms to ensure informants are used correctly.

“This was a case filed against Tony Rackauckas when he was the District Attorney,” said DA spokeswoman Kimberly Edds.

“As soon as District Attorney Spitzer took office he began making immediate reforms, including the use of jailhouse informants. He adopted a new jailhouse informant manual that strictly governs the use of jailhouse informants, including the provision that a jailhouse informants cannot be used without the express consent of the District Attorney,” she added.

“We will be examining the ruling in conjunction with County Counsel to determine the next steps.”

Sheriff Don Barnes’ spokeswoman also said their department is reviewing the decision.

The lawsuit was brought by the ACLU of Southern California on behalf of several Orange County residents and advocates, including Bethany Webb, whose sister was killed in the Seal Beach mass shooting that sparked the Orange County informants scandal.

In a 2016 ruling, a state appeals court upheld a ruling that kicked the entire DA’s office off the Seal Beach case – Orange County’s deadliest mass murder – due to misconduct by prosecutors and sheriff’s deputies the court found were systemic in other cases as well.

In that case, the appeals court ruled prosecutors engaged in “intentional or negligent participation in a covert [informant] program to obtain statements from represented defendants in violation of their constitutional rights, and to withhold that information from those defendants in violation of their constitutional and statutory rights.”

The ACLU alleges there are 146 cases since June 2016 where the District Attorney’s Office apparently failed to turn over required evidence regarding the informants program.

Going forward, the court proceedings are slated to focus on whether an illegal informants program is continuing.

The Orange County informants scandal is getting renewed attention this week, beyond the new appeals court decision.

On Tuesday, former Vice President Joe Biden announced his running mate would be Kamala Harris, who oversaw an investigation of the Orange County snitch scandal as California Attorney General.

While her office said at the time it was investigating – including after an Orange County judge found that deputies lied on the witness stand – Harris later acknowledged she was leaving it to the locals to handle.

“I knew misconduct had occurred, clearly it had,” Harris told the New York Times last year. “And it was being handled at the local level.”

And on Wednesday, family members of the Seal Beach shooting victims called on Spitzer to resign for allegedly betraying his promises to voters that he would clean up corruption in local law enforcement.

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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