KEN YUWILER
Partner
Rains Lucia Stern St. Phalle & Silver
As our readers might recall from prior articles, Robert Kirsch was a custody deputy in the Santa Barbara County Sheriff’s Department who was accused of excessive use of force on an inmate. After he was terminated by the Department, and while he was being prosecuted for excessive force in United States District Court, he was also sued in federal court by the inmate for an alleged violation of civil rights.
Kirsch formally requested that the County provide him with a defense (counsel to represent him), and indemnity (payment of any judgment or settlement). Pursuant to the Government Code, the County was required to provide Kirsch with a defense for any allegation against him arising out of an act or omission occurring within the scope of his County employment, and to pay any judgment or settlement for any such act, as long as Kirsch timely made the request for same and reasonably cooperated in the defense of the case. In the alternative, the County could have agreed to defend Kirsch under a “reservation of rights,” whereby the County would defend Kirsch until it was more clearly established whether the alleged injury arose out of an act or omission occurring within the scope of Kirsch’s employment.
The County chose to ignore its obligations and simply abandoned Kirsch. Fortunately, LDF came to the rescue, as Kirsch’s LDF plan provided coverage when an agency arbitrarily shirked its duties. Ken Yuwiler of Rains Lucia Stern St. Phalle & Silver took over the defense of the complaint, and promptly sued the County for the costs of defense and indemnification.
Throughout the course of the civil case, a substantial number of depositions were taken and documents were provided. While the information was obtained to defend Kirsch against the false allegations made in the civil case, that discovery also turned out to be very helpful in Kirsch’s defense of the criminal and administrative cases. The inmate, a convicted murderer and rapist serving a life sentence, claimed in a deposition that he fully complied with each and every instruction given to him and that Kirsch had no right of any kind to use any force against him. Those allegations were not supported by other witnesses, a jail video or later testimony from the inmate himself. Moreover, the witness statements also provided evidence that Kirsch had every reason to be concerned about the inmate’s actions, and that his use of force was reasonable in light of all the facts and circumstances.
Ultimately, after Kirsch’s acquittal of the criminal charges in federal court, the civil case settled. Although the Department paid a modest sum to the inmate to avoid the additional costs of trial, it was merely a nuisance settlement. In fact, once the attorneys’ fees and deposition costs were subtracted from the settlement, the inmate received barely a pittance, all of which was subject to victim restitution for the inmate’s despicable crimes. Additionally, the County was required to reimburse some of Kirsch’s attorneys’ fees and all of his costs. That money was returned to the Legal Defense Fund to allow it to continue to assist other peace officers.
Robert Kirsch wishes to thank the Legal Defense Fund for providing the needed defense that resulted in a favorable outcome in all of his matters.
About the Author
Ken Yuwiler is a partner in Rains Lucia Stern St. Phalle & Silver. He has represented public safety employees in civil and administrative cases for more than 20 years and often writes or lectures on related legal issues.
