OC sheriff agrees not to penalize deputies who refuse to testify under Fifth Amendment

Orange County Sheriff Don Barnes has agreed not to take disciplinary action against deputies who refuse to testify for fear of self-incrimination, otherwise known as pleading the Fifth Amendment.

The agreement settles a federal lawsuit brought against the department by the Association of Orange County Deputy Sheriffs. The suit was filed after the Sheriff’s Department made threats against now retired Deputies Seth Tunstall, William Grover and Ben Garcia, who invoked their Fifth Amendment rights on Oct. 8, 2015, while being questioned about killer Scott Dekraai during a hearing into the use of jailhouse informants.

Dekraai fatally shot eight people at a Seal Beach beauty salon in 2011 after fighting with his wife over child custody issues.

Tunstall, Grover and Garcia, who managed a jailhouse informant used against Dekraai, were labeled untruthful by a judge during their earlier testimony and refused to testify any further. The judge in the Dekraai case accused the deputies of intentionally misleading the court about how the informant operation worked and the existence of documentation.

Union officials argued law enforcement officers have the same constitutional rights as civilians and are similarly entitled to invoke the Fifth Amendment.

“Department members will not be subject to questioning, a personnel investigation or discipline,” said a memo from the union, issued after the settlement.

Alexa Pratt, a spokesperson for the union, added: “Deputies have the same rights as private citizens. Although rare, on occasion our deputies may be advised to invoke their Fifth Amendment right for a variety of legal reasons, including protecting innocent deputies from false allegations.”

Jaimee Blashaw, a spokesperson for the Sheriff’s Department, said the agency would never violate the deputies’ right to invoke the Fifth.

“The department’s expectation is for employees to present honest and effective testimony, as it remains an important aspect of the criminal justice process,” Blashaw said. “The Orange County Sheriff’s Department has never disciplined any employee for the lawful exercise of their Fifth Amendment rights. We strive to protect the constitutional rights of everyone — department members and the public alike.”

But Paul Wilson, whose wife, Christy, was killed by Dekraai, said deputies who refuse to testify are not doing their jobs and shouldn’t be allowed to get away with it.

“You take the Fifth for one reason — because you’re guilty and you don’t want to give further incrimination,” Wilson said. “For Don Barnes to allow his deputies to take the Fifth shows a lack of leadership.”

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