City atty on both sides in SDPD case
In the ongoing examination of allegations into misconduct at the San Diego Police Department, what side is the city attorney on?
Well, both.
As city attorney, Jan Goldsmith is spearheading the city’s vigorous defense in a civil rights lawsuit that stems from the on-duty sexual abuse by former Officer Anthony Arevalos.
Yet he’s also invited the FBI in to conduct a criminal investigation into the city — his client — promising to be an open book as they probe some of those same allegations of department-wide misconduct.
They are roles that might seem contradictory. Goldsmith says both come with the job.
“We do defend the city in court and defend SDPD as lawyers, but also as lawyers we do our best to correct problems so we don’t have other lawsuits and other victims,” he said. “We do it all the time.”
Legal experts tend to agree.
“City attorneys have a position that is probably more rife with inherent conflicts than just about any legal job you can imagine,” said Steve Bereson, a government law ethics professor at Thomas Jefferson School of Law downtown. He added that if there is any conflict in this case, “it seems kind of ephemeral.”
However, private attorneys who are representing one of the victims of Arevalos’ abuse in the lawsuit have been questioning how Goldsmith can serve the public in both roles effectively.
Inviting an investigation “seems at odds with the city attorney’s overly zealous (and frequently brutish) defense of the SDPD and individual officers accused of wrongdoing,” said Linda Workman, one of the attorneys for the abuse victim known in court papers as Jane Doe.
Arevalos was convicted in 2012 for a rash of incidents in which he elicited sexual favors from women he pulled over in the Gaslamp Quarter.
Thirteen victims in all have filed claims against the city for Arevalos’ behavior. The city settled with 12 of them, paying out a total of $2.3 million thus far. Goldsmith said he is proud of those settlements, which likely saved taxpayer dollars.
But the final victim, known only as Jane Doe, has not reached a settlement with the city, and is now headed to an August trial in San Diego federal court for a jury to determine damages.
Jane Doe has testified that Arevalos pulled her over, then made her give him her panties in a 7-Eleven bathroom in exchange for letting her go.
The court battle so far has been bitter. When Jane Doe’s lawyers call the city’s defense “brutish,” they are complaining about its surveillance of Jane Doe and city legal motions that suggest she invited the sexual contact with Arevalos.
Goldsmith, though, calls it good lawyering on the city’s part, and says it is necessary to investigate the real emotional damage to Jane Doe, who has claimed to be afraid to go outside due to the incident.
Goldsmith likened the situation to a personal injury lawsuit in which a victim says he can’t play basketball anymore. Part of the defense is surveillance to see if that person does in fact play basketball.
One of the biggest fights that has been waged in the lawsuit is over documents and discovery. Jane Doe’s lawyers have had to file about a dozen motions to compel the city to hand over evidence, including police reports, internal investigations and policy manuals. The federal judge has issued two strongly worded opinions ordering the city to produce documents.
The scope of the case has grown recently, with the judge ruling that Jane Doe may present other evidence of broader allegations that the Police Department has condoned and covered up misconduct prior toArevalos’ arrest.
A possible conflict: The FBI might be digging into some of that same evidence, at the invitation of the city.
Last month, with a fresh rash of officer sexual misconduct cases and other wrongdoing since Arevalos, the city invited the U.S. Department of Justice to take an independent look under the hood of the Police Department.
The probe includes a voluntary audit of internal affairs, misconduct cases and overall police policy and procedure, as well as a separate criminal investigation by the FBI.
Goldsmith and other city officials say the effort is about “making sure we do everything we can to not have future victims.”
“We want SDPD to be as close to perfect as it can possibly get,” he said. “We want the DOJ to come in and leave no rock unturned, to look at SDPD policies critically and tell us what they’re doing right and what they’re doing wrong.”
And the very documents and internal reports the city has been so reticent to produce in the lawsuit? They will be handed over to federal investigators who ask for them, in both the audit and criminal investigation (although the criminal investigators have the added power of search warrants at their disposal).
Jane Doe’s lawyers say the city can’t have it both ways — vigorously defending the city and then opening the books to investigators looking into the same conduct.
“We don’t think they will be truly collaborative and cooperative (to federal investigators,) given their obvious conflicts and track record,” said Joseph Dicks, another one of Jane Doe’s lawyers.
The lawyers also suspect the federal investigation is being used to undercut Jane Doe’s calls for an outside monitor to oversee the Police Department — a more serious step that would force policy changes rather than recommend them.
Richard Solomon, a retired legal ethics professor in Los Angeles, says that while the city attorney’s dual roles may appear contradictory to the layperson, he says they are accomplishing two different goals for the office’s client, the city of San Diego.
“I don’t hear an ethical problem,” Solomon said.
The city is in effect saying, “We want to vigorously defend the lawsuit and minimize the indemnification dollars, in addition we want to restore the public trust in the Police Department and want transparency and want the feds to come in and do some house cleaning,” Solomon said. “It might look odd, but the city is acting in the city’s best interest.”
The audit is expected to take six to eight months and will include recommendations that will be made public. Few details have been released about the scope of the FBI investigation.
