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Ninth Circuit:
No Immunity for D.A. Investigator Accused of Lying in Report
Opinion Says Complaint, Asserting That Orange County Employee Fabricated Evidence in Building Extortion Case Against Former Attorney, Adequately Alleges Violation of Established Right Not to Face Bogus Criminal Charges
By a MetNews Staff Writer
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JAMES TOLEDANO suspended attorney |
An investigator with the Orange County District Attorney’s Office is not entitled to qualified immunity relating to accusations that he fabricated evidence in an extortion case involving a wealthy couple who accused an attorney of trying to shake them down for money, the Ninth U.S. Circuit Court of Appeals held yesterday.
In a memorandum opinion, signed by Circuit Judges Sandra S. Ikuta and Kenneth K. Lee and Senior Circuit Judge Richard R. Clifton, the court said the plaintiff plausibly alleged a violation of a clearly established right—the right to be free from bogus criminal charges.
The question arose after James Toledano, a former chair of the Orange County Democratic Party, was convicted in 2014 of conspiring with a purported client to extort $350,000 from Priscilla and Richard Marconi, the founders of an automotive museum in Tustin. Then-Orange Superior Court Judge John Conley (now retired) sentenced him to nine months in jail.
According to prosecutors, Toledano in 2008 threatened to expose an alleged affair between Priscilla Marconi and his law client, Michael Roberts, a former employee of the couple who once lived in their guest house. Part of the prosecution’s case relied on a May 29, 2008 report generated by an in-house investigator, Craig Lawler.
Toledano claimed that the $350,000 he sought from the Marconis was a proposed settlement to resolve a dispute between them and Roberts, who asserted that the couple defamed him to other personal training clients after the affair ended badly, causing him to lose hundreds of thousands of dollars in revenue.
Conviction Reversed
Div. Three of the Fourth District Court of Appeal reversed the conviction in 2019, saying that “[w]e conclude sufficient evidence supported the jury’s verdict, but we reverse the judgment because Toledano suffered prejudice in the trial court’s decision not to instruct on Toledano’s affirmative defense [that] his actions were protected under the litigation privilege.”
After the District Attorney’s Office declined to retry the case, Toledano filed a complaint in 2022 against the Marconis, their attorney Paul Roper, former Orange County District Attorney Tony Rackauckas Jr., and Lawler. The plaintiff asserted claims under 42 U.S.C. §1983, alleging that the defendants violated his due process rights by prosecuting him based on false evidence.
He claimed in the operative pleading that Lawler created a false report describing a meeting with the Marconis and Roper that never occurred, writing:
“Lawler’s [May 29, 2008 report] includes…new and materially different accusations…including, but not limited to, representing that plaintiff had threatened to have a criminal complaint for perjury brought against Priscilla, that he indicated a desire to jeopardize their marriage and harm both Priscilla and Richard in their personal, business and public lives and that he told Roper he ‘guaranteed’ publication of the photographs, love letters and wedding vows in the Orange County Register.”
Toledano alleged that the Marconis made campaign contributions to Rackauckas in 2008 and that both parties had sworn under oath that there was no meeting with Lawler on May 29, contradicting statements in the report.
Trial Court Proceedings
After motions to dismiss the complaint were filed, U.S. Magistrate Judge Brianna Fuller Mircheff of the Central District of California recommended that all defendants but Lawler be dismissed from the case, concluding that the accusations were “too conclusory” against the other parties. Addressing the claims against Lawler, she said that the allegations against him “are sufficiently plausible to avoid dismissal.” As to qualified immunity, she noted that he argued that he is entitled to qualified immunity because the appellate decision that overturned his conviction “clarified unsettled law regarding the jury instruction.”
Rejecting that characterization, she wrote:
“Defendants’ argument is off base. The question presented here is whether it is settled law that an investigator for a District Attorney cannot fabricate evidence of a meeting that never happened, and then send the report containing that fabricated evidence to the officers investigating the case. That law enforcement may not fabricate evidence would seem to be beyond debate.”
Mircheff added:
“That the California Court of Appeal did not take issue with the conduct of any Defendant in the case…hardly matters; the…Court…did not consider whether anyone in law enforcement fabricated evidence and was not presented any allegations along those lines.”
District Court Judge Michael Fitzgerald accepted Mircheff’s recommendations and ordered Lawler to respond to the claim against him.
Ninth Circuit’s View
Clifton, Ikuta, and Lee noted that government officials are entitled to qualified immunity under §1983 unless they are found to have violated a clearly established statutory or constitutional right. Applying that standard, they said:
“We have long since recognized that ‘there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.’ ”
They remarked:
“Toledano’s operative complaint adequately alleged that Lawler’s supplemental investigative report, written in 2008, deliberately fabricated evidence that Toledano attempted to commit extortion by describing a meeting between relevant parties that never took place and falsely asserting that Toledano made threats against Priscilla Marconi. The complaint further alleged that this fabricated evidence was a but-for and proximate cause of the criminal extortion charges brought against Toledano and his subsequent conviction.”
The judges added:
“While Lawler contests whether his supplemental report did in fact contain fabricated information, such factual disputes are not properly before us on this limited interlocutory appeal. Accepting Toledano’s well-pleaded allegations as true, we conclude that Lawler is not entitled to qualified immunity at this stage of the litigation.”
According to the State Bar’s website, Toledano is no longer eligible to practice law due to a failure to pay fees and to meet continuing education requirements, a status he has maintained since 2015.
The case is Toledano v. Lawler, 24-7156.
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