Appellate Victory in OC Illegal Informant Program Case

Munger, Tolles & Olson and the Southern California and National ACLU achieved a significant victory on Aug. 12, 2020 for citizens of Orange County challenging the Orange County Sheriff Department and District Attorney’s illegal informant program.

In 2016, Munger Tolles partnered with the ACLU of Southern California on a novel case that arose from a prosecution against Scott Dekraai, the perpetrator of Orange County’s deadliest mass shooting in 2011. Dekraai was assigned a public defender, who, in the course of his representation, uncovered a massive and systemic illegal informant program being run by the Orange County Sheriff and DA.

For decades, Orange County prosecutors and deputies planted illegal informants in jailhouse cells to extract information from defendants already represented by counsel—with prosecutors using information when it was helpful, and suppressing it when it was exculpatory. In some instances, these informants would use intimidation and threats of violence to extract confessions from the represented individuals.

As a result of this discovery, the Munger Tolles team spent the next two years with the ACLU developing the case that was filed in Orange County Superior Court in April 2018, which sought to ensure the end of this illegal program. The trial judge ruled that the plaintiffs did not have standing to pursue their claims and dismissed the case. Undaunted, Munger Tolles and the ACLU appealed.

On Aug. 12, 2020, the court issued a published opinion, reversing on all grounds and remanding back to the trial court for further proceedings. This result is not only a win for the case, but it solidifies bases of standing that are important in civil rights litigation of all kinds— taxpayer standing, and the public interest/duty exception to the beneficial interest requirement for writs of mandate. It is the firm and the ACLU’s hope that this reversal will force some much-needed change in Orange County’s criminal justice system.

John L. Schwab led the Munger, Tolles & Olson team that represented the plaintiffs, which also included Anne K. Conley, Jake Kreilkamp, and Peter E. Gratzinger.