Deputy union accuses O.C. Sheriff’s Department of disciplining employees solely for invoking 5th Amendment right

Orange County Sheriff’s Department leaders have threatened to discipline deputies solely for invoking their 5th Amendment right against self-incrimination, according to a federal lawsuit filed Friday seeking to halt the practice.

Arguing that the constitutionally-guaranteed right against self-incrimination applies to law enforcement like everyone else, the union representing Orange County sheriff’s deputies alleges that the department is subjecting officers who have invoked the privilege to “disciplinary investigations, disciplinary interrogations and discipline itself.”

In a lawsuit filed Friday at the federal courthouse in Santa Ana, the union alleges that three deputies have already been targeted by sheriff higher-ups for pleading the fifth in connection with the department’s “snitch scandal.” And the union worries that other deputies could be targeted in the future, in cases where “duties imposed on deputies by the department have exposed them to personal, criminal and civil liability.”

“Law enforcement officers do not relinquish their constitutional rights when they pin on a badge,” the union said in a statement announcing the lawsuit. “All peace officers swear an oath to uphold the Constitution of the United States and California. Use of intimidation to deter the exercise of constitutional rights is against everything the department should stand for. We will not tolerate it. This legal action is intended to stop the department from committing these illegal acts.”

In response to the lawsuit, Orange County Sheriff Don Barnes denied infringing on his employees constitutional rights.

“The department fully understands the constitutional protections afforded to all people, including those rights that extend to our employees,” Barnes said. “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.”

Along with the county itself, the lawsuit names Barnes and Robert Beaver, a senior director with the sheriff’s department, as defendants.

The lawsuit cites an internal Orange County Sheriff’s Department investigation involving retired deputies William Grover and Seth Tunstall, as well as Deputy Ben Garcia. That administrative probe, announced at the beginning of the year by Barnes, focused on determining whether the three deputies committed perjury while testifying in court about jailhouse informants.

In March 2015, former state Attorney General Kamala Harris launched a criminal investigation after then-Superior Court Judge Thomas Goethal’s ruled that Garcia, Tunstall and possibly Grover “either intentionally lied or withheld evidence” from the court. The deputies were testifying in the case of mass killer Scott Dekraai, about whether prosecutors or deputies misused jailhouse informants to gather incriminating evidence against Dekraai and other defendants.

Goethals, who is now a state appellate judge, ultimately took the Orange County District Attorney’s Office off Dekraai’s trial, and blocked the confessed killer from getting the death penalty, since the judge didn’t believe local prosecutors and deputies could ensure a fair hearing.

When Barnes announced the internal department probe in January, the newly-elected sheriff explained that he didn’t want to wait any longer for the state Attorney General’s Office to conclude a 4-year-old criminal investigation into the perjury allegations. Since then, the state Attorney General’s Office has acknowledged during a court hearing that they are no longer investigating, and no written report or perjury charges have been forthcoming.

The newly-filed lawsuit alleges that in late January and early February, Garcia, Tunstall and Grover were “compelled under threat of insubordination and termination to attend an investigatory interrogation ordered and authorized by Barnes and Beaver.” At that point “County investigators made clear that they considered the members’ act of invoking the 5th Amendment right a violation of County policy that could lead to disciplinary action, up to and including termination.”

The lawsuit references the deputies invoking the 5th Amendment both in administrative hearings, as well as in court hearings related to the Dekraai case.

Lawrence Rosenthal, a former federal prosecutor and a professor at Dale E. Fowler School of Law at Chapman University, said the sheriff’s department can’t force deputies to waive their right to invoke the 5th Amendment if there is a real threat of prosecution. However, Rosenthal said the department has waited too long to take up the debate since in this case no one seriously considered prosecuting.

“They should have been doing this years ago rather than wait for a criminal case that never comes,” Rosenthal said. “They (the deputies) will probably die of old age before it’s resolved.”

Assistant Public Defender Scott Sanders, who discovered in 2014 that prosecutors and sheriff’s deputies were improperly using jailhouse informants to garner confessions, said sheriff Barnes was being disingenuous in now threatening deputies who invoked the 5th amendment.

“This is pure performance art by the Sheriff’s Department. The leaders of that agency, with Don Barnes sitting second in command, were thrilled in 2015 when key deputies stayed silent, knowing questioning would confirm a cover-up leading up the chain of command,” Sanders said. “Four years later, with the danger long gone, the department feigns outrage at the same deputies’ conduct – forgetting Sheriff Hutchens told ABC News deputies had the ‘absolute right to invoke the 5th.’ Incredible.”

In filing the lawsuit, the deputies union is seeking to have a judge issue an injunction against the 5th Amendment policy, and ultimately have a judge declare it unconstitutional.