LAKEPORT, Calif. – A brief Monday afternoon hearing led to the public disclosure of findings that Lake County's sheriff lied about shooting at a man who held a can of pepper spray in 2008.

That was the opposite result of what Sheriff Frank Rivero was seeking in serving District Attorney Don Anderson with notice of an ex parte application for a temporary restraining order and preliminary injunction, meant to prevent the findings from being released.

Anderson led the investigation into allegations that Rivero, while working as a deputy in February 2008, had shot at a man holding pepper spray, only to give investigators differing accounts of the incident in the days afterward.

Shooting at a person with pepper spray would have been a violation of sheriff's office policy, according to a statement by a sergeant questioned in the District Attorney's Office's investigation into the shooting.

Rivero served Anderson last Friday in an attempt to block him from disclosing his findings either publicly or to criminal defendants, the latter being required under the 1963 U.S. Supreme Court decision, Brady v. Maryland.

That case requires that prosecutors disclose to defendants in criminal cases any exculpatory information, including credibility issues with any officers involved in their cases.

In Rivero's filing, which alleged that his civil rights and right to privacy had been violated, it stated, “Plaintiff will suffer irreparable harm if Defendant is not enjoined from releasing, disclosing or discussing any and all aspects of Plaintiff being on the District Attorney's 'Brady List' because, once it is released that Petitioner is a 'Brady' officer, his reputation will be severely injured and his ability to continue to serve as Sheriff or in other law enforcement capacities will be nullified.”

In a hearing which ran just under 20 minutes, retired Butte County Superior Court Judge William Lamb denied Rivero's request for the restraining order but is allowing him to move forward with seeking a preliminary injunction and writ of mandate. Hearings on those matters are not yet on the court schedule.

Rivero was seeking to have his filings kept under seal and on Monday his attorney, Ryan Jones of the Jones and Mayer law firm, told the court they wanted the hearing closed to the public as well.

However, before the hearing Lamb already had approved a media request – filed earlier in the day by Lake County News – seeking to conduct a video recording of the proceedings. Lamb said he was not inclined to close the hearing.

While he said he understood Rivero's position, Lamb said he believed the presence of the media and the public was appropriate. Further, because public figures were involved, and there were issues in question relating to conduct, Lamb said it was just the kind of case that should be made public.

Lamb also denied Rivero's request to seal the complaint and associated documents, including Anderson's final report containing his conclusion that Rivero had lied to investigators.

Based on interviews, analysis and further investigation, “it has to be my finding that Deputy Francisco Rivero did not tell the truth and made material misrepresentations to investigators on February 19th and February 20 of 2008,” Anderson wrote. As a result, when Rivero is a material witness in a case, the District Attorney's Office must disclose the Brady finding.

On Monday Anderson told the court regarding his final report, “In all fairness, I would not object to counsel's motion to keep that portion under seal.”

Lamb said he understood Anderson's viewpoint. “I know you're acting out of an abundance of caution and sense of fairness,” said Lamb. “But it wouldn't make a whole lot of sense to seal that either.”

That's because Lamb found an “overriding interest” in the conduct and manner in which business is conducted in both the District Attorney's Office and the Lake County Sheriff's Office.

Jones argued that the facts underlying Anderson's finding that Rivero lied were based on an internal affairs investigation conducted in the sheriff's office.

However, Lamb said the document was not an internal affairs investigation and contained no personnel records.

“We do not have anything from a personnel file,” said Anderson.

While Jones continued to maintain that the facts came from an internal affairs investigation, Lamb responded, “That's by no means clear from the record.”

Further, Lamb said it was his understanding that Anderson's report came from interviews the District Attorney's Office conducted.

When Jones appeared ready to continue arguing the point, Lamb told him that they didn't need to get into an evidentiary hearing, and that they were not talking about the correctness of Anderson's conclusion.

Anderson explained that it's his department policy that under no circumstances does his staff look at personnel records. Rather, they uses the sheriff's criminal filings and their own investigations.

Lamb then moved on to discuss the temporary restraining order application.

With the documents entered into the court files and the public record, Lamb said it was no longer appropriate to go forward with the restraining order, which he denied without prejudice. He said he was not, however, denying the request for a preliminary injunction, which will be able to move forward to a hearing.

Rivero's filings allege civil rights violations; DA says Brady determination is his responsibility

In the case documents, Rivero argued that other than an informal hearing with Anderson, he was not able to rebut Anderson's conclusion that he was to be placed on the Brady list.

While he acknowledged that Anderson has the duty and burden to seek out Brady material once an officer is placed on the Brady list, Rivero contended that the process by which Anderson arrived at the decision violated Rivero’s due process rights “given the significant property and liberty interests at issue.”

The case also alleged that Anderson's decision was arrived at in a “unilateral, arbitrary, and informal” process.

“Plaintiff is left with a career-ending determination and no recourse,” the complaint stated.

Rivero is seeking declaratory relief, asking for the court to make a finding that Anderson's Brady determination is improper “given the insufficient due process procedures” Rivero alleges are in place. He's also asking for a writ of mandate against the decision so that he would be allowed to confront and cross-examine the witnesses against him.

In response, Anderson noted that established case law leaves Brady determinations up to him, with the district attorney having “an absolute duty and constitutional obligation” to disclose to defendants any Brady information or evidence.

“Whether to place a peace officer on the Brady list or disclose a peace officer's credibility issues are at the sole discretion of the District Attorney,” Anderson wrote. “There is no statutory or case authority that conflicts with this discretion.”

Anderson's response to Rivero's complaint explained that in March 2011 Deputy Michael Sobieraj – who had been at the scene of the shooting, working alongside Rivero – contacted the District Attorney's Office to report that Rivero had lied to investigators, which spurred Anderson's inquiry.

In November 2011, Anderson's office informed Rivero that he would have the opportunity to submit written comments, material or objections that would be considered in the Brady decision. Anderson said that, contrary to Rivero's statement, there never was an informal hearing.

After a series of delays that Anderson attributed to a dispute between Rivero and the Board of Supervisors over the hiring of independent counsel, Rivero and his attorney met with Anderson and his staff on Oct. 12, 2012, according to Anderson's filings.

“At this meeting Sheriff Rivero spoke out in his defense,” Anderson said in his response. “He also produced documents and a MAV (mobile audio video) tape that had never been released to the District Attorney's Office prior to that time.”

As a result, a supplemental investigation was conducted, which included reviews of evidence, with some of the relevant witnesses reinterviewed, Anderson's response explained, leading to the investigation's completion and the drafting of the final report. Rivero was notified of the decision on Feb. 19.

Anderson said Rivero can continue in his capacity as sheriff with no detriment, even making arrests and investigating cases. “The detriment is to the District Attorney's Office in prosecuting the case.”

Anderson's Brady policy allows for him and his designees to submit potential Brady evidence to judges for in-camera – or confidential – review “to determine if discovery to the defense is required.”

That's what Senior Deputy District Attorney Art Grothe did last week during motion hearings for three Hells Angels members facing prosecution for a June 2011 fight. Rivero became involved in the case by retrieving surveillance video of the incident from Konocti Vista Casino.

After reviewing Anderson's final report in chambers with Grothe, retired Lake County Superior Court Judge David Herrick ordered that the material be provided to the defense but kept under seal.

Anderson said the defense has requested additional materials which, he believes, must be turned over based on Herrick's ruling.

Anderson's final report on the Rivero investigation is below. It should be noted that some of the language it contains may be offensive.

Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.

Right click to Download the full report here.

030413 Lake County District Attorney's Final Report Regarding Sheriff Rivero Brady determination