DA Cleared of Maliciously Prosecuting Predecessor

     SAN FRANCISCO (CN) – A former prosecutor cannot claim that his successor tried to frame him for child endangerment and driving under the influence, a federal judge ruled.
     About two years after Jon Alexander beat the incumbent Michael Riese in the 2010 election for district attorney of Del Norte, Calif., Riese sued his successor for malicious prosecution.
     Alexander had allegedly been out to get Riese because Riese had gotten Alexander fired from his job as deputy district attorney years earlier, “after determining that Alexander could no longer be employed as a Deputy DA while on probation,” according to the complaint.
     The complaint alleged that Alexander had local newspapers, including The Daily Triplicate in Crescent City, report in August 2011 that Riese was under criminal investigation after having a medical emergency at a Safeway in Crescent City.
     Riese claimed that he fell asleep at the store as a side effect of medicine he had taken for an unspecified medical condition. He said the responding officers and the store manager concluded that he was not under the influence of alcohol or narcotics, and the condition was medically related. Riese’s ex-wife initially indicated the same, according to the complaint.
     But Alexander and other officials allegedly offered to help Riese’s ex-wife avoid penalties for violating a court order “as long as she would provide damaging testimony against Riese in an upcoming February 2012 criminal trial that defendants Alexander and Newman had filed against Riese.”
     Riese said Alexander worked with other officials, including some from the county sheriff’s department and Crescent City Police Department, to “discredit, humiliate and cause injury to [Riese].”
     U.S. District Judge William Orrick found last week, however, that Alexander has immunity from claims that he maliciously prosecuted and fabricated evidence.
     The ruling also threw out some claims against Del Norte Sheriff Deputy Richard Griffin.
     Alexander and Griffin had cited California’s anti-SLAPP statute, which allows defendants in “strategic lawsuits against public participation” to immediately move to strike the complaint.
     The court then must determine if the defendant has made a threshold showing that the challenged activity arises from protected activity. If such a showing is made, the court would have to resolve whether the plaintiff has shown a probability of prevailing on the claim.
     Judge Orrick found that Riese could not show that Alexander was working outside the scope of his employment when he prosecuted Riese for child endangerment after the incident at Safeway, where one responding officer said Riese “appeared to be extremely under the influence.”
     Orrick also gave short shrift to Riese’s allegation of an agreement between Alexander and Reise’s ex-wife.
     There “is no competent evidence of any ‘secret agreement’ between Alexander and Riese’s ex-wife, nor evidence that such an agreement would be outside the scope of Alexander’s employment,” the ruling states.
     California’s public official immunity law furthermore “expressly applies to conduct within the public employee’s scope of employment, ‘even if he acts maliciously and without probable cause,'” Orrick wrote.” Accordingly, Alexander is immune from his alleged conduct, notwithstanding the personal history between him and Riese. Alexander’s motion to strike is granted.”
     As to the emotional distress, Orrick found that Riese had not met his burden of demonstrating a probability of prevailing on the claim.
     Riese likewise failed to allege that Griffin harassed him, pulled him over without probable cause and acted in bad faith by conducting a search of his home that exceeded the scope of a warrant to fabricate evidence.
     Here, Riese “mischaracterizes” the affidavit, Griffin also has immunity from prosecution for his actions, according to the ruling.
     Orrick ordered Riese to pay Alexander over $6,000 in attorney fees and ordered Griffin to produce evidence showing how much money he should be owed for legal costs. Judges are required to award attorneys’ fees to a prevailing defendant in an anti-SLAPP motion.
     Orrick declined to dismiss other charges against Griffin, including those for unreasonable search and seizure, fabrication of evidence and conspiracy, finding that they could not be stricken under the anti-SLAPP statute.
     Alexander, a former methamphetamine addict, used the slogan “death to meth” during his campaign. In April, a state bar court judge ruled that Alexander should be disbarred after his most recent infraction compounded an already checkered disciplinary record, which includes having an ex parte communication with a sentencing judge in a criminal case. Alexander would reportedly be the first district attorney to be disbarred.
     The Del Norte County Board of Supervisors voted to suspend Alexander without pay one day later, an action that Alexander is challenging, according to the Times-Standard News of Eureka.
     Alexander also faces allegations that he shielded a child molester who contributed to his campaign, and arrested the mother when she took the children to be examined in another county.
     Riese is represented by Brian Claypool in Pasadena.
     Alexander is represented by Ann Asiano of Bradley Curley Asiano Barrabee Abel & Kowalski PC in Larkspur and Griffin by Clariza Casenillo Garcia of Patton Wolan Carlisle LLP in Oakland.
     Neither Claypool nor Asiano returned a request for comment.

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