Public indifference can be a powerful ally in fights between local governments or state institutions and the people mistreated by them.
Those taking on these entities will find they have few friends and formidable adversaries.
In 2009, I took up the case of a then-UC Davis graduate teaching assistant named James Marchbanks. While teaching a drama class, Marchbanks pulled an envelope out of his duffel bag and said, “I have a bomb.”
In this case, the “bomb” was the course evaluation form students commonly are asked to fill out at the end of the term. Marchbanks had no explosive device. He was known to his colleagues as a gentle soul. The whole “bomb” thing was an unfortunate play on words, a riff on the idea that the evaluation forms could “bomb” his teaching career.
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Marchbanks left the class so the students could fill out the forms in private. Later, three students told authorities they found the episode threatening. And do you know what UCD cops did instead of simply telling Marchbanks that he should be have been more circumspect? They arrested him, despite the fact that other students in the class clearly understood his use of language. Marchbanks sat in a Yolo County jail cell for four days, held on suspicion of threatening with the intent to terrorize and making a false bomb threat.
When I asked UC Davis public affairs about Marchbanks’ treatment, they stonewalled, and then backed the overreaction by cops. They put out a statement that universities had to be careful in the wake of the Virginia Tech massacre.
Think about that for a moment. In April 2007, a VT student named Seung-Hui Cho shot and killed 32 people on campus and wounded several others. Cho had been a menacing presence who had alarmed his roommates with suicidal remarks. A judge had ordered Cho to seek outpatient care because of remarks. No matter. Cho carried out one of the deadliest mass shootings in U.S. history.
So UCD’s idea for justifying its mistreatment of Marchbanks – a student with no violent background, who was well liked by the faculty – was to connect him to the memory of Cho’s rampage.
Marchbanks’ professors, some of whom bailed him out of jail, were distraught by his arrest. Some also were afraid to speak publicly for fear of reprisals from the administration. Prosecutors ultimately declined to file charges, saying they did not feel they had a case. Meanwhile, Marchbanks feared that his name forever would be sullied on the internet from news stories about his arrest.
After I wrote about this injustice, Jeff Reisig – the Yolo County district attorney – suggested that Marchbanks file a motion seeking “factual innocence,” which could involve having his arrest record sealed and destroyed. Reisig said he would not oppose the motion, which was commendable of him. It was also a way for Reisig to help Marchbanks without publicly criticizing UCD police. Prosecutors are loath to criticize cops because they have to work with them. It’s but one of the many ways the system protects institutions from scorn or scrutiny.
Eventually, the Marchbanks story drifted away. It never generated much public outrage. Lawyers never rushed to Marchbanks’ side. There wasn’t any money to be made on his case. Marchbanks is African American, but the NAACP never took up his cause. All he got for his troubles were internet stories stressing his innocence to combat internet stories that wrongly had sullied his name. These days, Marchbanks is living in Santa Rosa near family and is still involved in theater, according to David Grenke, chair of UCD’s drama department.
Justice can be a massive mountain that takes years to climb. Some people, like Marchbanks, never get close to the top. Lately, I’ve been writing about four female deputies who sued the Sacramento County Sheriff’s Department for workplace retaliation.
Three of the deputies – Lt. Dawn Douglas, Sgt. Tracie Keillor and Deputy Jodi Mendonca – said they faced reprisals for taking on a man who is now the second in command at the Sheriff’s Department. Undersheriff Erik Maness was alleged to have been showing favoritism to a female deputy named Kristyn Beezley. When Keillor, Douglas and Mendonca complained to Maness about Beezley, they say he retaliated against them.
A Sacramento County jury agreed, awarding the four deputies a combined judgment of $3.6 million. The lawyers representing the deputies recently were awarded $5.3 million in legal fees.
There has been little public outcry over this case. The defendants carry badges and wield great power, both legally and politically in our region.
Though the court case doesn’t involve him directly, Sheriff Scott Jones was a witness during the trial and has had to address the case during his run for Congress. He has suggested that negative headlines are motivated by a “liberal” Sacramento Bee trying to help his opponent, incumbent Democrat Ami Bera.
I have never met Bera. I think he should resign from Congress because his father is going to prison for election fraud. According to prosecutors, the elder Bera solicited at least 130 fraudulent campaign contributions that were given to his son. Ami Bera was not implicated in any way, but it’s a horrible situation nonetheless. I’m no fan of Bera.
But you know what? None of this has anything to do with the case of the four deputies.
Court documents detail how their complaints to their superiors were blown off. They dared to challenge the culture of the department and paid a heavy price of lost job status or were investigated by internal affairs.
Jones is not at fault for a case that predates his election as sheriff. What’s at fault is the larger culture within a department in which people in power were allowed to choose favorites and punish those who dared ask questions. What’s at fault is a county structure that circles the wagons despite massive court judgments of nearly $10 million.
In a recent column, I called out the county supervisors for not doing more to address issues with the Sheriff’s Department. I singled out two progressive, laudable politicians – Patrick Kennedy and Phil Serna – and asked why they weren’t digging deeper into the case.
Kennedy has spoken in the past about pushing for civilian oversight of the Sheriff’s Department. But there is no timetable for that and no guarantee it will ever happen. In the meantime, the supervisors are supporting the decision to appeal the verdict.
Kennedy recently wrote an op-ed in The Bee defending the decision to appeal. “The board’s duty to mitigate the impact of a lawsuit and protect the public is real,” he wrote.
But what about protecting the county employees here? The four female deputies all had good careers. They and their lawyers have fought this case for seven years and they prevailed in court.
Employment attorneys note how difficult this is: “Public entities have numerous legal protections that insulate them from significant civil liabilities that private entities face,” said Mary-Alice Coleman, a Davis-based employment lawyer who handles cases against public institutions.
“Public entities have time-restricted administrative prerequisites that must be satisfied before suits can be filed. Thus, many litigants with rightful legal claims are precluded from bringing lawful legal actions because they missed the administrative deadlines.”
Coleman said many public institutions will go to court on the flawed premise that most lawsuits are frivolous. Early resolution, as should have been the case here, is difficult because appointed or elected bureaucrats believe whatever their lawyers say.
The result: County employees can look at the four deputies and think, ‘Wow, if I have a problem with my boss, it might take me years to fight it. I may be retaliated against and the case could play out in the newspaper.”
Meanwhile, a few years from now, the case of the four deputies finally may be settled for more than $10 million. Despite everything, Maness is considered the heir apparent to Jones. If you wonder how all this is possible, it’s because you weren’t paying attention. That’s how it works.