• by Ray Schultz , Columnist, 7 hours ago

A First Amendment retaliation complaint is percolating in a federal court in California. 

The case was filed in May by Maya Lau, a former journalist with The Los Angeles Times, who says she was investigated by Los Angeles County for reporting on police misconduct.

In September, U.S. District Judge Sherilyn Peace Garnett denied a motion by the county to dismiss the case, but has thrown out the claims against three individual defendants. A scheduling hearing is set for Nov. 19, and the trial will take place next year. 

Lau had been referred for prosecution twice for reporting that a “Brady List” maintained by the Sheriff’s Department “catalogued roughly 300 deputies with histories of dishonesty or other misconduct that made them open to impeachment as trial witnesses,” the judge notes. 

In one case, Sheriff Alex Villanueva and his colleagues “referred her for prosecution for conspiracy, theft of government property, unlawful access of a computer, burglary, and receiving stolen property, the judge writes. But the state Attorney General declined to prosecute. 

The investigations went on over a three-year period, Lau alleges. 

 The case is not proceeding in its entirety. “Based on the authorities Lau has identified, she has not shown that an undisclosed criminal investigation and referral for prosecution, standing alone, violate a clearly established right. The Court therefore GRANTS the individual defendants’ motion to dismiss Counts I and II of the complaint.” 

But the judge is allowing the case regarding Count III of the complaint to proceed. 

“The County argues that Lau’s claim against it cannot proceed because “[t]he initiation of a criminal investigation in and of itself does not implicate a federal constitutional right,”  Garnett notes, but adds: This may be true in the abstract. However, “to avoid running afoul of the First Amendment, the government must not investigate for the purpose of violating First Amendment rights.” 

Garnett adds, At a minimum, a reasonable jury could find that, by referring Lau for criminal prosecution, LASD’s conduct had the objective effect of chilling speech.”

The judge concludes, “the Court DENIES the County’s Motion to Dismiss Count III of the Complaint.”

Lau, of course, is pleased with this ruling.  

“It should be common sense that journalism isn’t a crime,” Lau says, according to an article published on Monday by the Reporters Committee for Freedom of the Press, which is providing legal help to Lau. “But few courts have had the chance to make clear that a retaliatory investigation of a journalist violates the Constitution. For a federal judge to affirm my foundational First Amendment claim sets down an important marker for all reporters.”

The case is on file with the U.S. District Court for the Central District of California.