LA prosecutors sue DA Gascón over orders

An organization representing his own deputies is suing to stop Los Angeles District Attorney George Gascón from dropping sentence enhancements, and asks for an order declaring the DA's directives unlawful.

"Respondent George Gascón, within weeks of his investiture as Los Angeles County's District Attorney, has issued Special Directives that are not merely radical, but plainly unlawful," states the complaint filed by Eric M. George, a partner with Browne George Ross O'Brien Annaguey & Ellis LLP. "They command the deputy district attorneys of respondent Los Angeles County District Attorney's Office to violate California's constitution and laws."

A spokesperson for Gascón declined to comment.

The filing in Superior Court cites Gascón's directives barring enhancements meant to keep serious felons in prison longer. Gascón has told prosecutors not to bring charges under California's Three Strikes Sentencing Initiative, or laws allowing longer prison terms for felons with gang affiliations, bail or firearms law violations.

An initial hearing on the deputy district attorneys' request for an injunction will be held Wednesday. Association of Deputy District Attorneys for Los Angeles County v. Gascón, (L.A. Super. Ct., filed Dec. 29, 2020).

Gascón beat two-term incumbent Jackie Lacey by 7% in last month's general election. A former assistant chief in the Los Angeles Police Department and a San Francisco district attorney, he promised voters "decisive reforms to transform America's largest criminal justice jurisdiction," according to his campaign website.

Since taking office, he announced he would "no longer request cash bail for any misdemeanor, non-serious or non-violent felony offense." He also said he would no longer seek enhancements but, after an outcry, backed down on Dec. 18, stating his deputies could seek enhancements in "cases involving children, the elderly and hate-motivated crimes."

The prosecutors' lawsuit drew a sharp rebuke from UC Berkeley School of Law Dean Erwin Chemerinsky.

"We are confident this attempt to obstruct the will of the voters will be struck down," he said in a statement cosigned by Stanford Law School professor David Mills and Michael Romano, director of Stanford Law's Three Strikes Project.

"The California Supreme Court has held that 'California district attorneys are given complete authority to enforce the state criminal law in their counties,'" the academics stated, contradicting the legal stand of the prosecutors' complaint. "The Deputy District Attorneys Association's concern over striking enhancements is inconsistent with their decades-long silence when former district attorneys often dismissed enhancements and Three Strikes allegations in the interests of justice. That the association now claims the practice to be unlawful is more reflective of their long standing opposition to reform and the will of millions of Angelenos than it is the legality of DA Gascón's directives."

One result of Gascón's policies has been a wave of public criticism and open defiance by some judges and several of his own prosecutors. Some deputy district attorneys have said they were blindsided by deals Gascón's top aides reached in criminal cases without consulting the line prosecutors, victims or families.

His policies have also prompted a debate about how far a district attorney can go in changing prosecution policies. Gascón's critics have often said he is attempting to change or circumvent state law. His supporters have noted the latitude he and other district attorneys enjoy in setting department policies.

"Respondent Gascón enjoys wide - but not limitless - discretion in exercising his prosecutorial functions," prosecutor association's complaint states. "He may not ignore, but must enforce, California's mandatory sentencing enhancement laws."

"Such democratically enacted mandates overcome respondent Gascón's personally held - and legally irrelevant - views about the wisdom or constitutionality of California's mandatory sentencing enhancement laws."

Deputy district attorneys owe their primary allegiance to California's Constitution, not their boss, the complaint states. Under the state's separation of powers doctrine, courts can allow prosecutors to continue to seek enhancements.

The plaintiffs pointed to several special directives Gascón issued this month. California appeals courts have rejected on at least four occasions Gascón's assertion that the state's Three Strikes law is unconstitutional, the complaint states. A "local executive official, charged with a ministerial duty, generally lacks authority to determine that a statute is unconstitutional and on that basis refuse to apply the statute," the lawsuit states. Lockyer v. City & Cty. of San Francisco, 33 Cal. 4Th 1055, 1086 (2004)."

Gascón cannot deprive deputies of discretion, nor can judges dismiss special circumstances a suspect has already pleaded to, the lawsuit states, citing, People v. Roman, 92 Cal. App. 4th 141, 148 (2001). "[U]ltimately the court - not the prosecutor - decides" if it is proper to drop enhancements that have already been filed.

The complaint includes a declaration from Michele A. Hanisee, a deputy district attorney and the president of the association. She cited a recent hearing in which Judge Laura F. Priver told a deputy, "You have an ethical duty to do your job and proceed with prosecution. You should not be allowed to abandon the prosecution at this juncture."

"DDAs ... risk being held in contempt of court, or being disciplined by the State Bar, each time they undertake this conduct," Hanisee wrote. "Judges have scolded DDAs for following respondent Gascón's Special Directives instead of their obligations under the law,"