Members of former drug unit sued Pierce County. Here's what federal judges ruled
AI-generated summary reviewed by our newsroom.
- Ninth Circuit reversed dismissal of some claims tied to prosecutors’ conduct
- Lawsuit stems from 2020 drug unit shutdown, alleged retaliation and reputational damage
- District Court must now decide if qualified immunity applies to the officials.
The U.S. Court of Appeals for the Ninth Circuit on Friday ruled that a federal judge in Tacoma wrongly dismissed parts of a lawsuit against Pierce County brought by former members of a Sheriff’s Office drug investigation unit.
The federal appeals court ruled that three actions of the Prosecuting Attorney’s Office were not entitled to absolute immunity, a defense from civil liability for government officials carrying out the functions of their office. Western Washington’s U.S. District Court will now take back up that aspect of the case to determine if qualified immunity applies to the defendants.
The basis of the lawsuit goes back to at least April 2020 when a narcotics-trafficking investigation team known as the Special Investigations Unit (SIU) was shut down by former Sheriff Paul Pastor after the Prosecuting Attorney’s Office raised concerns about possible protocol violations. They included writing false police reports to protect the life of an informant.
The SIU was relaunched amid an external investigation, then shut down again after The News Tribune published a story identifying drug investigators who prosecutors had placed on a list of witnesses with credibility problems commonly known as the Brady list. Hours after it was published, Prosecutor Mary Robnett emailed then-Undersheriff Brent Bomkamp that she was concerned by the SIU member’s public statements that were critical of prosecutors, stating that they seemed to minimize and distract from the issues being investigated.
Nine former members of the SIU sued Pierce County, alleging that their reputations had been permanently damaged and that Pastor and Bomkamp had targeted them with investigations to influence the 2020 sheriff election. One former SIU member was then-Lt. Cynthia Fajardo, who was running for sheriff, and she lost the race to Ed Troyer. Fajardo is now Sheriff Keith Swank’s second-in-command as undersheriff.
Last year, U.S. District Judge Tiffany M. Cartwright found that the former SIU members had failed to show sufficient evidence proving their claims and dismissed the lawsuit, writing that there was no evidence connecting Pastor’s April 2020 decision to shut down the unit to Fajardo’s campaign plans.
An attorney representing the former SIU members, Joan Mell, appealed to the Ninth Circuit, arguing that the District Court had too broadly granted prosecutorial immunity to the defendants.
Mell contended that Pierce County officials should be liable for allegedly fabricating materials used to place the SIU members on the Brady list, revealing their identities to the news media, testifying in the external investigation of the SIU done by the Kitsap County Sheriff’s Office and involving the FBI. The Kitsap investigation found dozens of possible policy breaches, but a subsequent review by the Clark County Sheriff’s Office largely cleared SIU investigators of wrongdoing, attributing issues to communication breakdowns and a poor relationship with prosecutors
In oral arguments before the Ninth Circuit in July, Mell told judges Mary M. McKeown, Richard Paez and Gabriel Sanchez that the “number one” most damaging thing to the former SIU members was that their names were published in the newspaper.
“Once this shadow came over them that they were corrupt somehow, they couldn’t get rid of that stink, and nobody would even talk to them, so they were shunned in a way that was particularly harmful emotionally and professionally,” Mell told the judges.
Friday’s decision by the three-judge panel of the Ninth Circuit appears to narrow the civil case to claims related to the functions of the Prosecuting Attorney’s Office, which has defended the county, Pastor and Bomkamp in the lawsuit.
The panel reversed the District Court’s dismissal of all claims against defendants with the Prosecuting Attorney’s Office. It also sent the case back to the District Court level for a judge to determine whether those defendants are entitled to qualified immunity, rather than absolute immunity, for acts that fall outside of prosecutorial functions.
Both Mell and Pierce County found wins in the judges’ ruling.
“Our office is pleased with the ruling,” Adam Faber, a spokesperson for the Prosecuting Attorney’s Office, said in an email. “Most of the claims remain dismissed. We’re ready to address the remaining issues in the trial court.”
Mell said the beauty of the judge’s decision is that now she can “get at the heart of the case,” which she said is the fabrication that the former SIU members had ever been doing something wrong.
The panel agreed with Mell on three issues. They wrote that two now-retired deputy prosecuting attorneys, Fred Wist and Jim Schacht, took actions that did not serve prosecutorial functions and therefore were not protected by absolute immunity.
“We agree with Plaintiffs that Schacht and Wist’s alleged communication with the press, statements to Kitsap County investigators, and referral of a criminal investigation to the FBI did not serve prosecutorial functions,” the panel wrote.
Mell said the fact that there’s no prosecutorial immunity also means that she can restart her claims against Prosecuting Attorney’s Office officials with respect to defamation, false light and outrage, meaning intentional or reckless infliction of emotional distress.
“[Robnett] and her prosecutors have to quit abusing their power, and now they’ve been told they can be liable for it — again,” Mell said. “They don’t have as much power to step on law enforcement as they think they do.”
“Elated to be backed by the Ninth Circuit in that ruling,” Mell added.
The Prosecuting Attorney’s Office doesn’t agree with Mell’s assessment of the ruling and doesn’t believe she can restart those claims.
“We don’t read it that way,” Faber said.
