Tuesday, December 29, 2020
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Court of Appeal:
‘Trauma’ Does Not Excuse Lack of Filing Timely Claim Over Deputy’s Misconduct
Women Who Claim to Have Been Sexually Assaulted by Lawman Did Not Present Adequate Excuse for Waiting in Excess of Six Months Period Before Apprising County of Grievance, Opinion Says
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal, in separate opinions, yesterday rejected the contentions of three women who contend the trauma of having been sexually assaulted by a deputy sheriff excuses their failure to file a timely claim against the county.
Justice Joan K. Irion wrote the opinion in N.G. v. County of San Diego, D076539, which was certified for publication, and the unpublished opinions in T.M. v. County of San Diego, D076636, and D.F. v. County of San Diego, D076533.
Each of the opinions affirms a judgment of San Diego Superior Court Judge Katherine Bacal denying a petition pursuant to Government Code §946.6 seeking relief from the requirement in the Government Claims Act that a claim for damages be submitted to a governmental entity within six months of the accrual of a cause of action, as a prerequisite to bringing suit.
The three women all sought permission to file a late claim, then sue, based on conduct of former San Diego County Sheriff’s Deputy Richard Fischer.
Expert Declaration
Each of their petitions included an expert declaration from Carlton Hershman, who retired in 2017 from the San Diego Police Department, where he spent 10 years in the Sex Crimes Unit. He now owns a business called Sexual Assault Training and Consulting.
In his declaration, Hershman said:
“One of the common issues I dealt with constantly in investigating sex crimes and interviewing and dealing with women and men who were victims of alleged sexual assaults and rapes was delayed or late reporting by the victims, especially women.”
He provided various reasons for this, and added:
“Another thing I have learned in my experience that has encouraged reluctant sexual assault victims to come forward is where they learn about other victims of a same or different perpetrator who have come forward.”
News Reports
Each of the women said she decided to bring an action after learning from news reports that Fischer was under investigation. As T.M. put it:
“It was not until late November 2017 when I saw and heard news reports about Deputy Fischer hugging and groping other women and he was being investigated for this conduct by the Sherriff’s Department that I realized he had done the same thing to me, I was a victim like the other women, the department was taking the matters seriously and would truly investigate my situation with an open mind. Until then, I was under the misconception no one would believe me, what Deputy Fischer had done to me was my fault and I had no rights against him or his employer, the County.”
Irion said, in N.G. v. County:
“We are sympathetic to the emotional trauma and psychological issues that a woman experiences when she is sexually assaulted by a man in a position of authority. As Hershman explained, a woman who experiences such trauma may understandably delay in reporting the incident. However, despite the fact that N.G. alleges she was the victim of sexual assault by a law enforcement officer, we are constrained by the applicable standard of review to conclude that the trial court was within its discretion to decide that N.G.’s psychological response to Fischer’s assault did not amount to the type of extreme psychological disability needed to excuse her from complying with the claim filing requirement.”
‘Exceptional Showing’
She went on to say that, while “no way” making “light of the significant emotional hurdles faced by victims of sexual assault,” Becal cannot be faulted “for exercising its discretion in this case to conclude that the psychological state in which N.G. found herself after Fischer’s sexual assault did not…rise to the ‘exceptional showing’ required for relief based on psychological disability or emotional trauma.”
The same language was used in the opinions that were not certified for publication, except for the difference in the initials used.
Fischer was convicted in September of last year based on his guilty pleas to four counts of felony assault under color of authority, two counts of misdemeanor assault under color of authority, and one misdemeanor count of false imprisonment.
Scant Jail Time
He was sentenced in December 2019 to 3.6 years of incarceration, and was released on May 15 based on custody credits, taking into account the year-and-a-half he spent clad in an ankle bracelet. The San Diego District Attorney’s Office issued a statement, saying:
“These credits were calculated by the Imperial County Probation Department and implemented by the Sheriff. There were no agreements to an early release by DA’s office. It does not appear that there was an early release by the Sheriff’s Department.
“The issue of credits that inmates receive in jail or prison are understandably a point of concern for victims of crime as they are left with an expectation of how much time an offender will actually do behind bars when the reality could be different. Richard Fischer stands convicted of multiple felony crimes, is no longer in a position of trust that allows him to perpetrate further harm and he is under mandatory supervision.”
At least 24 women have sued the county based on Fischer’s alleged misconduct. As of last February, five cases had been settled, the latest for $350,000, bringing to total pay-out to more than $1.25 million.
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