LA Prosecutors File Lawsuit To Stop District Attorney Gascón From Breaking California Law

Tuesday morning the Association of Deputy District Attorneys for Los Angeles County (ADDA) served newly elected Los Angeles District Attorney George Gascón with notice of a Petition for Writ of Mandate and TRO.  

Wednesday, the ADDA filed a civil lawsuit seeking a writ of mandate, as well as declaratory and injunctive relief. The suit asks that District Attorney George Gascón follow California state constitutional and statutory law. These laws, enacted by the voters and the state legislature, tested and deemed constitutional by the judiciary, must be respected by the executive.

The Assistant District Attorneys explain what’s behind their valorous move:

The lawsuit targets four separate directives issued by the District Attorney that ignore or violate state law. In those directives, the District Attorney ordered deputy district attorneys to dismiss pending strike priors, special circumstance enhancements, gang enhancements, firearm allegations, and certain other “felony prior” enhancements. The directives prohibited the filing of strike prior enhancements in new cases.

“While an elected District Attorney has wide discretion in determining what charges to pursue in an individual case, that discretion does not authorize him or her to violate the law or to direct attorneys representing the district attorney’s office to violate the law,” said Michele Hanisee, President of the ADDA.

As detailed in the lawsuit, the directives violate California law, which imposes a mandatory duty on prosecutors to plead and prove strike priors. Dismissals of those priors can only be based on individual circumstances, not a blanket policy. Similarly, special circumstance allegations that will result in a life without parole sentence cannot be dismissed under the section cited by the directive.

“Los Angeles County prosecutors have been placed in an impossible position. Do we follow our legal and ethical responsibilities and risk getting disciplined, even fired, by our new boss? Or do we follow his policy directives and risk losing our California State Bar Cards and, by extension, our ability to practice law anywhere in the state? We’re asking a court to answer those questions,” stated ADDA Vice President Eric Siddall.

The District Attorney of Los Angeles County is a local executive branch official, with a duty to carry out laws enacted by the voters or the legislature. He is not a legislative body unto himself. The restraining order being sought asks the judiciary to prohibit the elected District Attorney from putting his personally-held views as to which laws are or are not good policy, or which are or are not constitutional above the laws enacted by the state legislature and by the voters— laws which have been upheld as constitutional by our state courts for decades.

The lawsuit (below) says that within weeks of being sworn in as Los Angeles County’s District Attorney, Gascón, issued radical, unlawful “Special Directives,” commanding the deputy district attorneys of the Los Angeles County District Attorney’s Office to violate California’s constitution and laws:

• With respect to future cases, the Special Directives prohibit DDAs from charging mandatory criminal sentencing enhancements under the Three Strikes Law, which California enacted to protect its citizens from previously-convicted serious and violent felons; and
• With respect to pending cases, the Special Directives require DDAs to withdraw all pre-existing enhancement allegations for six different types of sentencing enhancements. These provisions are plainly illegal. (Attached hereto as Exhibits A-D are interlineated copies of the Special Directives, with those portions excised that violate California law). DDAs cannot be commanded to violate the very sentencing enhancements that California law mandates.

At issue also, is the ludicrous position Gascón put the ADAs in: “As California State Bar members who are duty-bound to uphold California’s constitution and laws, are the DDAs to follow their legal and ethical obligations?” the lawsuit asks. “Or are they to follow their employer’s edict? They cannot do both. Do they risk disciplinary action by the California State Bar, or risk being terminated for noncompliance with their employer?”

Gascón is the architect of Proposition 47 which largely decriminalized theft and drug crimes by reducing those crimes and a number of other “non-violent” felonies to misdemeanors; and Prop. 57, which allows early release for “non-violent offenders,” including rape by intoxication of an unconscious person, human trafficking involving a sex act with minors, arson causing great bodily harm, drive-by shooting, assault with a deadly weapon, and hostage taking.

Billionaire oligarch George Soros funded more than $2.5 million of George Gascón’s race for Los Angeles District Attorney. And that funding guaranteed his win against incumbent DA Jackie Lacey.

The Globe reported on one recent case in Los Angeles Superior Court where Los Angeles Superior Court Judge Mark Arnold recently made clear in court that California Penal Code stands “in the interest of justice,” over newly elected Los Angeles District Attorney George Gascón’s radical news policies dismissing enhancements and special circumstances in criminal cases. Los Angeles Deputy DA Herring filed a Motion to Dismiss the special circumstances, alleged sentencing enhancements – all gun enhancements and gang allegations – “in the interest of justice,” at the direction of LA County DA Gascon, in the Dominguez case. Judge Arnold wasn’t buying this line of thinking, saying about the Motion for Dismissal: “I don’t think it rises to the level of the interest of justice.”

California Globe noted, “Only the California Legislature can pass laws – not the Governor, and not the Los Angeles County District Attorney.”

In a statement on his first day, D.A. George Gascón said this:

“The Los Angeles District Attorney’s Office will advance an effective, ethical and racially equitable system of justice that protects the community, restores victims of crime, and honors the rights of the accused.  We are a learning organization that believes in reduced incarceration and punishment except in circumstances in which it is proportional, in the community’s interest, and serves a rehabilitative or restorative purpose.” 

Gascón says he believes enhancements are ineffective and racist and claims his policies are not unethical. Except his role as a District Attorney and prosecutor, is to be the chief prosecutor for local Los Angeles County.

“Legislating by fiat, Respondent Gascón immediately issued a series of special directives that all but repealed California’s sentencing enhancement laws and commanded his employees—Los Angeles County (“County”) prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law,” the Los Angeles ADDA says in the lawsuit.

“The illegality of Respondent’s Special Directives has placed line prosecutors in an ethical dilemma—follow the law, their oath, and their ethical obligations, or follow their superior’s orders,” the ADDA lawsuit says. “Indeed, Judges have already scolded deputy district attorneys for following the Special Directives in the face of their obligations under the law.”

Later on Wednesday, the ADAs sent out a press statement following action in the Los Angeles Superior Court:

We are gratified by today’s action by the Master Calendar department of the Los Angeles Superior Court.  Department 1 ordered the respondent parties (District Attorney George Gascón and the District Attorney’s Office) to show cause why an injunction should not issue enjoining enforcement of the unlawful portions of their Special Directives.  The court specifically set an expedited briefing schedule – and Petitioner voluntarily withdrew its request for a temporary restraint order – so that the matter shall be heard on the following schedule:  the respondent parties (District Attorney George Gascón and the District Attorney’s Office) will file opposition papers by January 15, 2021; Petitioner will reply by January 26, 2021; and hearing before Department 85 shall take place at 1:30 pm on February 2, 2021.

To view a copy of the lawsuit, see below, or click here.   You can view Exhibit A here, The Application For A Temporary Restraining Order And An Order To Show Cause here, the proposed Temporary Restraining Order and Order to Show Cause here, the Table of Exhibits In Support of Petitioner’s Ex Parte Application For Temporary Restraining Order And Order To Show Cause here, and Exhibits here.