A federal judge has ruled that most of the claims should remain intact in a lawsuit filed against Sheriff Don Barnes and the county stemming from the discipline of three deputies involved in the criminal case of Scott Dekraai, the worst mass killer in the county’s history.
The federal lawsuit filed Sept. 25 is in response to the disciplining of three former deputies — Seth Tunstall, Bill Grover and Ben Garcia — when they invoked their Fifth Amendment rights against self-incrimination on Oct. 8, 2015.
U.S. District Judge James Selna Monday mostly rejected a motion from the county to dismiss the case brought by the Association of Orange County Deputy Sheriffs.
In January and February of this year, the deputies were compelled to be interrogated regarding the invocation of their constitutional rights against self-incrimination or face insubordination and termination. The union representing the deputies have claimed Tunstall, Grover and Garcia were being ordered to waive their Fifth Amendment rights, Selna wrote in the ruling.
The county argued the union has no legal standing in the matter, but the plaintiffs argued other members of the organization could face the same discipline if they invoke the Fifth Amendment. Selna sided with the union.
Selna also sided with the deputies, who claimed their First Amendment rights would also be affected by any discipline for invoking the Fifth Amendment privilege.
Selna also denied a motion to dismiss the due process claim of the union.
Selna, however, sided with the county in its claim the union failed to show a Fourth Amendment violation. The deputies argued the meetings with internal affairs investigators went from an interview to a seizure because of the threat of firing.
“Here, the (union) has not pled any facts suggesting that the deputies were not at liberty to walk away from the interview or not answer the questions,” Selna wrote.
Michael McGill, an attorney for the union, noted that Tunstall, Grover and Garcia “answered all the questions about their job performance” in an internal affairs investigation.
“What we’re talking about is a separate investigation of their invoking the Fifth,” McGill said.
Union members are concerned they all will face termination if they invoke their Fifth Amendment rights, McGill said.
Barnes “is stirring up this belief that’s what’s going to happen and it’s freaking people out,” McGill said. “He wants them to go into court and voluntarily say everything that happened, which could expose them to prosecution in theory.”
Tunstall, Grover and Garcia were the focus of much of the evidence brought out in hearings regarding allegations of violations of the constitutional rights of Dekraai, who ultimately won a motion to dismiss the death penalty as an option for prosecutors, and other inmates in the use of confidential informants in the county’s jails. Dekraai, who pleaded guilty in the Seal Beach beauty salon massacre, was sentenced to life in prison without the possibility of parole.