Something seems fishy and incomplete in Tony Saavedra‘s story in the Register this afternoon this Tuesday afternoon: “ACLU drops jailhouse informant lawsuit against OC Sheriff’s Department“. When I read that, my heart dropped. The explanation boosted me a little — the ACLU rep, Summer Lacey, says that it looks like the Sheriff’s Department has cleaned up its act re jailhouse informants and agreed to provisions to prevent recurrence of these issues. But still, doesn’t that mean that they’re (figuratively) getting away with murder?
[Note: One sentence in the story when I began writing this piece is now missing: That there is “no reason to continue litigating it.” That suggests that someone called into the Orange Lady and asked for its deletion — maybe other people were having the same dismayed reaction that I did.]
You see, I can think of one reason to continue: the “catalyst theory” of damages, which I’ll describe below. I think that it fills in the gaps that I find in the Register story. So let’s step back and take a close look at what Saavedra does and doesn’t say.
While Saavedra did a very good job — including helpfully linked to an earlier Register piece from the time the lawsuit was filed (which has a great background on the snitch scandal) — his story left me the impression that the ACLU essentially said it was giving up. That made me sad: it’s not that I like to have to pay more taxes to pay for judgments and fees because county officials so avidly broke the law; it’s that I really believe in deterrence of wrongdoing by public officials. And if public officials don’t suffer — either financially or sometimes by criminal or other sanctions — then they (and the political aspirants watching them) aren’t deterred. So I was sad at first, but then on re-reading, after noting how the case still seemed to be in dispute, I got a different impression.
The story is illustrated with a 2018 photo of a press conference showing three plaintiffs in the lawsuit: Theresa Smith, mother of police shooting victim Caesar Cruz; Tina Jackson, an activist against unethical Prosecutors and Law Enforcement Officers; and Bethany Webb, whose sister was killed in the Seal Beach Salon spree killing. I hadn’t been following the case and had forgotten that Theresa was a plaintiff.
Smith had a powerful statement: “The only reason they stopped is because they got caught.”
Sheriff-Coroner Don Barnes offered a pointed counter: “It is unfortunate that it took plaintiffs years to realize their lawsuit was baseless.” He decried the loss of millions of dollars of taxpayer money expended to defend against it.
But Lacey, the ACLU representative, said that “The OCDA and OCSD policy changes that occurred during this litigation are an important step in addressing the decades-long legacy of unconstitutional informant practices by both departments. But those past injustices can never be made right.”
Oh! I get it now. This litigation may be over. But the question of how much the ACLU will receive in attorney fees is not over. And that depends on something called “catalyst theory.” And the question asked in catalyst theory is this: Was the plaintiff’s lawsuit a “catalyst” in the decision of the defendant to make these reforms?
Here, I will directly quote two paragraphs from Saavedra himself — ones that are so close to the heart of a catalyst theory analysis that I really with that he had beaten me to the punch and made this piece unnecessary:
In January, the Department of Justice reached agreements with the district attorney’s office and Sheriff’s Department on how and when informants would be used in the future. Both agencies now require permission from their top officials to use jail informants.
At the Sheriff’s Department, those reforms include additional training for jail personnel about the legal requirements involving informants, requiring the sheriff to approve the use of informants and requiring that prosecutors be notified in writing “at the earliest possible time” when an informant is used by sheriff personnel.
Interesting! And now I have to add one last piece from Saavedra’s article that I’ve omitted.
“The district attorney originally was included in the suit, but settled with the ACLU in January, said Kimberly Edds, spokesperson for the district attorney’s office.”
Oh! Now I’ll lay out the pieces so you can see why this matters so much:
Both the DA’s office and the Sheriff’s Department were sued by the ACLU. They both were sued by the Department of Justice and settled (presumably pursuant to DOJ investigation even if there was no lawsuit). Until this point, Barnes could conceivably say (barely conceivably) that the ACLU was unnecessary to catalyze the policy change.
He’d have to argue that all of the below would have happened even in the absence of the ACLU lawsuit:
- The DOJ consent decree (Is that the proper term even when one is settling with a federal agency? Todd would know. I’ll use it for the concept here for now because I enjoy irony) would be followed:
- The top official, who is elected, must personally decide whether to use informants
- This gives the top official some personal liability, including for training and supervision to ensure monitoring and compliance
- The DOJ agreement would govern how informants would be used in the future. I’m confidant that this would including obligations to investigate information from informants and how it was obtained and to ensure that everything is reported timely and accurately to the DA’s attorneys.
- The DOJ agreement would govern when informants would be used in the future. In other words: Is the prisoner a ripe target? Is the potential informant trustworthy, competent, and willing to follow the law?
- And there are additional requirements imposed solely on the Sheriff’s office:
- additional training for jail personnel about the legal requirements involving informants
- requiring the Sheriff to approve the use of informants
- Requiring that prosecutors be notified in writing “at the earliest possible time” when an informant is used by sheriff personnel.
- Settlement of additional terms for the ACLU’s settlement with the DA’s office, which I strongly suspect (though I don’t know) would have involved paying a lot of fees to the ACLE. This suit started under Rackauckas and Spitzer can blame it on Rackauckas. He will take credit for ending it. Ans once other accomplishment: Spitzer is quite smart, like Melahat is, and he knows that in any most races to settlement there is some leniency to be had for being the one to settle first. We’ll come back to that.
- If its settlement with the OCDA’s office is confidential, I hope that the ACLU would prevail upon Spitzer to make it public. It’s about to become a lot more significant.
(So far, there’s nothing to add about what the Sheriff’s office has to do — but it is settling last.)
Now one other thing that I expect that Spitzer may be required to do in the settlement is to testify (or perhaps provide a written report) on why he believes that catalyst theory applies to this case. Looking at that list, I think it’s safe to say that the OCDA’s office was not moving towards accepting those sorts of terms in April 2018 — and in fact until recently it still wasn’t preparing to do so anytime soon. (Spitzer himself is in sort of a sticky situation based on the narrative in that second Register article, linked above, of his attacks on Judge Goethals — who comes out of this looking very good.) There was the question of how much credit the DOJ deserves for causing a settlement — but of course the DOJ case was itself probably greatly aided (and perhaps triggered!) by the ACLU case and its successes.
So Spitzer will have to make a decision about how much a catalyst role the ACLU suits played in precipitating a settlement. Wait. What am I thinking? Spitzer already made that determination when he decided to settle the ACLU suit! He could not have settled that suit until he believed that the catalyst claim was either meritorious or close enough to meritorious that he couldn’t risk foregoing settlement.
So now Don Barnes has quite a steep hill to climb to take on catalyst theory. He has to show that the Sheriff’s Department was on its way to make all of those changes already without the ACLU lawsuit nipping at his nads. He has to do this while carrying around all of his public statements on this issue, including the one above — you remember, “a prepared statement, said the litigation was without merit and a waste of millions of dollars in taxpayer money to defend against it” (quoting Saavedra’s story there) and “It is unfortunate that it took plaintiffs years to realize their lawsuit was baseless” (Barnes’s own words.) I don’t know about you, but that doesn’t sound like someone who was much moved by the previous seven years of turmoil. So with Spitzer testifying (in person or in writing — and this may be one microphone he won’t run towards) that the Plaintiffs were dead to rights (at least within the bounds within which they agreed to settle, it is really really hard to see how he is going to keep this up for long.
So what happens now? The usual path is that a party submits a fee demand for the approval of the court, both parties may weigh in, and then the court submits an order. The little research I’ve done on this procedure (which I’ve never done) suggests that the plaintiff doesn’t have to obtain a court order: it just sends the defendant a bill. If that leads to a settlement, great. If it leads to a collection effort, ok. The parties are supposed to work things out by themselves and draw up settlement papers. But if they can’t settle, then I presume that one of two things happens: (1) in this case, they could perhaps appeal to the Board of Supervisors, which could remove an agreed upon settlement amount from future Sheriff’s budgets; or (2) maybe it does go back to a court hearing, perhaps for collection of the plaintiff’s bill.
Either way, I answer my headline question in the affirmative: even with settlement of the underlying case done (at least for now), plaintiff’s case for fees is far, very far, from over — but who wins is pretty certain. As the ACLU rep said, or said and unsaid, there’s no reason to continue litigating the underlying case (given the effect of catalyst theory) and they’re in a good place to get fair compensation for their time.
If you, like me, came to the opposite conclusion when reading the original story — I hope that this perspective brightens your day!
Agreement was for no fees or costs
First, who are you, how do you know this, and why should I trust you? (You’re welcome to email Vern if you don’t want to deal with me.)
Second, which agreement? I don’t think that the ACLU had to come to any sort of agreement with the DOJ before they went after OCDA and OCSD.
So, given that there has been no agreement with the Sheriff’s office, you’re presumably saying that there the settlement deal with the OCDA did not involve fees or costs.
Maybe so: maybe both sides were to absorb their own costs in a “walkaway” settlement. Or maybe the ACLU believed that the OCSD was more materially to blame, or that the blame belonged to Rackauckas as a “rogue actor.” Maybe Spitzer had agreed to provide information about his understanding of whether the lawsuit did catalyze the reforms.
None of that means that the same analysis applies to Barnes (who ran the jail under Sheriff Hutchins) and the OCSD. If the ACLU had offered a walkaway deal to Barnes in January, and he didn’t take it(!), he’s more messed up that I’ve imagined.
Good chance is that I’ll have more information about this tomorrow. ‘Nuff said for the moment.