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Court Allows Los Angeles DA’s Retaliation Claims

(CN) - The Los Angeles District Attorney's Office cannot assert immunity from the retaliation claims of a district attorney who said he was targeted for refusing to file criminal charges against prominent individuals in a school development project, and for statements his lawyer made to the Los Angeles Times.

Tensions between District Attorney David Eng and his superiors surfaced when Eng was assigned to the Belmont Task Force to investigate allegations of fraud and environmental violations associated with the Los Angeles Unified School District's Belmont Learning Complex.

From the outset of the inquiry, task-force leader Anthony Patchett anticipated delivering "slam dunk" indictments against prominent individuals tied to the project. Newly elected District Attorney Steve Cooley, who established the task force, had campaigned on a promise to reform the Belmont project.

After a seven-month investigation, the task force concluded that the building site was environmentally safe, and that no indictments were necessary. Patchett allegedly received the news with hostility and threatened Eng with "severe consequences" if the task force didn't report what he "wanted to hear."

But Eng refused to change his stance and even accused Patchett of sabotaging the project by leaking false allegations of fraud to the Internal Revenue Service.

Eng said Cooley and members of his staff allegedly met to discuss ways of ousting Eng. They allegedly trumped up a sexual harassment investigation based on Eng's prior consensual relationship with a law clerk. The relationship was not against office policy, Eng claimed, and the clerk had repeatedly told investigators that Eng never harassed her.

Nevertheless, the senior attorney was demoted to the Pomona Juvenile Division - "considered to be the first stop for beginning attorneys," Eng claimed. No harassment charges were ever brought against him.

About five months later, he was suspended without pay, ostensibly for using an office computer for personal use. Eng hired attorney Mark Geragos to defend the misdemeanor charge. The case was eventually dismissed, after the only potential witness against him bowed out at trial.

Geragos later gave an interview to the Los Angeles Times detailing Eng's retaliation claims, which the paper published in an article called "D.A. Accused of Payback Prosecution."

In response, Head Deputy Steven Sowders allegedly told Eng that he would "never be allowed to come back" and that "they would come up with additional things to charge Eng with so that he would remain on suspension or terminated."

The District Attorney's Office agreed to "resolve matters" only if Eng retracted Geragos' interview statements and publicly apologized to Cooley.

But Eng rejected the offer and instead filed a lawsuit alleging retaliation in violation of his First and 14th Amendment rights.

The district court denied the defendants' bid for qualified immunity, and the federal appeals court in San Francisco affirmed.

After applying the five-step First Amendment retaliation test, Judge Hawkins concluded that "the allegations here demonstrate that Eng's First Amendment rights were violated with respect to both Eng's comments about the leak to the IRS and Geragos' statements on Eng's behalf to the press."

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