1 EUSTACE DE ST.

PHALLE, SBN 179100

JOSEPH R. LUCIA, SBN 278318
2 OLIVIA K. LEARY, SBN 329145
RAINS LUCIA STERN ST. PHALLE & SILVER, PC ELECTRONICALLY
3 2300 Contra Costa Blvd., Suite 500 FILED
4 Pleasant Hill, CA 94523 Superior Court of California,
County of San Francisco
Telephone: (925) 609-1699
5 Facsimile: (925) 609-1690 11/02/2021
Clerk of the Court
Email: [email protected] BY: KAREN VALDES
6 Deputy Clerk

7 ATTORNEYS FOR PLAINTIFF

JEFFREY PAILET
8

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 IN AND FOR THE COUNTY OF SAN FRANCISCO

11 UNLIMITED JURISDICTION
12
JEFFREY PAILET, CASE NO.
13 CGC-21-596176
Plaintiff, COMPLAINT FOR DAMAGES AND
14 DEMAND FOR JURY TRIAL
v.
15 1st Cause of Action – Violation of Labor Code
CITY AND COUNTY OF SAN FRANCISCO, §1102.5
16 2nd Cause of Action – Violation of San Francisco
DISTRICT ATTORNEY’S OFFICE, DISTRICT
17 ATTORNEY CHESA BOUDIN, DAVID Campaign and Government Conduct Code
CAMPOS, DANA DRUSINSKY, STEPHANIE §4.115
18 LACAMBRA, and DOES 1-50,

19 Defendants.
20 NATURE OF THE CASE
21 1. This is an individual action brought by Plaintiff JEFFREY PAILET against his former
22 employer, THE CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO DISTRICT
23 ATTORNEY’S OFFICE, (hereinafter “SFDA”), DANA DRUSINSKY, STEPHANIE LACAMBRA,
24 CHESA BOUDIN and DAVID CAMPOS for retaliatory termination in violation of California Labor
25 Code §1102.5 and San Francisco Campaign and Government Conduct Code §4.115.
26 2. Plaintiff was an employee of SFDA in the Independent Investigations Bureau (hereinafter
27 “IIB”) of the SFDA. This division focused on the investigation of law enforcement use of force. At the
28 time of the incident, Plaintiff JEFFREY PAILET was a Lieutenant in IIB. Part of his duties included

1
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 managing a team of investigators who drafted search warrants and associated documentation for Assistant

2 District Attorneys.

3 3. During this employment, Plaintiff PAILET discovered that the SFDA and the other

4 named defendants were improperly instructing investigators to include false, misleading and/or

5 misrepresented information and/or exclude relevant information, in its search warrants and supporting

6 warrant affidavits to be attested to by SFDA investigators in violation of law.

7 4. Plaintiff PAILET reported this to various individuals within the SFDA, including,

8 management, various attorneys, supervising attorneys and the District Attorney, protested the violations of

9 law and refused to take part in the improper creation and issuance of the search warrants and associated

10 documents. As a result of his whistleblower activities, Plaintiff was terminated from his employment in

11 retaliation for refusing to allow or take part in the improper creation and issuance of the search warrants

12 and associated documents and reporting these violations. Plaintiff PAILET requested that the

13 circumstances of his termination be investigated on multiple occasions and in each instance the District

14 Attorney’s office refused to do any investigation.

15 PARTIES

16 5. Plaintiff JEFFREY PAILET is, and at all relevant times was, a lawful resident of the State

17 of California. At the time of the incident, Plaintiff PAILET was employed by Defendants THE CITY

18 AND COUNTY OF SAN FRANCISCO and SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE

19 (“SFDA”) as a Lieutenant in the Internal Investigations Bureau (“IIB”). At the times of these events

20 herein, Plaintiff worked in San Francisco, California.

21 6. Defendant SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE (“SFDA”) is a

22 regional government agency located in the San Francisco, California and tasked with prosecuting criminal

23 offenders for the Defendant CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA. It is

24 governed by an elected District Attorney, currently a position held by Defendant CHESA BOUDIN.

25 7. Defendant DANA DRUSINSKY is, and at all relevant times has been, a resident of the

26 State of California. Defendant DRUSINSKY is being sued individually and in her official capacity as San

27 Francisco Assistant District Attorney (“ADA”).

28 8. Defendant STEPHANIE LACAMBRA is, and at all relevant times has been, a resident of

2
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 the State of California. Defendant LACAMBRA is being sued individually and in her official capacity as

2 San Francisco Assistant District Attorney (“ADA”).

3 9. Defendant CHESA BOUDIN is, and at all relevant times has been, a resident of the State

4 of California. Defendant BOUDIN is being sued individually and in his official capacity as the San

5 Francisco District Attorney (“DA”).

6 10. Defendant DAVID CAMPOS is, and at all relevant times has been, a resident of the State

7 of California. Defendant CAMPOS is being sued individually and in his official capacity as the Chief of

8 Staff for the SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE (“SFDA Chief of Staff”).

9 11. Plaintiff does not know the true names and capacities of defendants sued as DOES 1

10 through 50. Plaintiff will amend the complaint to show the true names of each such defendant when their

11 identities have been ascertained. Each of the DOE defendants encouraged, participated in, and/or ratified

12 and approved the conduct complained of herein. Each of the DOE defendants was at all relevant times

13 the agent, employee, or representative of one or more of the named defendants and/or the other DOE

14 defendants, and was acting within the course and scope of such relationship.

15 VENUE AND JURISDICTION

16 12. This Court has jurisdiction over this matter because all of the Defendants named herein

17 conduct business in and/or have substantial contacts within the State of California.

18 13. Venue is proper in the Superior Court of California, in the County of San Francisco,

19 pursuant to California Code of Civil Procedure § 395(a) because the incident giving rise to this Complaint

20 occurred in the County and all Defendants named herein do business in the County.

21 EXHAUSTION OF ADMINISTRATIVE REMEDIES

22 14. Plaintiff JEFFREY PAILET has exhausted all administrative prerequisites to suit. Plaintiff

23 PAILET timely appealed his termination by filing a Government Code § 3304(b) appeal. This appeal was

24 heard on March 12, 2021 and his appeal was denied on April 23, 2021. Plaintiff requested that an

25 investigation be conducted during this appeal and the District Attorney’s office refused to do an

26 investigation and ratified the retaliatory conduct.

27 15. Plaintiff PAILET then filed a government claim with the City and County of San Francisco

28 on April 30, 2021, within six months of his termination. The government tort claim was subsequently

3
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 denied by the City and County of San Francisco on May 5, 2021.

2 FACTS

3 Plaintiff’s Employment with San Francisco District Attorney’s Office

4 16. Plaintiff JEFFREY PAILET began working for the SFDA as an Investigator on May 22,

5 2017 in the Independent Investigations Bureau (“IIB”). In July of 2017, he was promoted to a Lieutenant

6 of IIB and supervised five investigators. As a Lieutenant, Plaintiff PAILET was tasked with managing the

7 investigators and supervising their work product related to assignments from Assistant District Attorneys

8 (“ADAs”) in IIB. Mr. Pailet performed his job well and was regularly commended for his leadership, work

9 and his dedication to IIB and SFDA’s mission. Plaintiff PAILET was dedicated to the investigation of

10 improper conduct and prosecution of illegal conduct by law enforcement.

11 SFDA Investigators’ Training and Duties Related to the Issuance of Search Warrants
12 17. Investigators are employed by the Defendant SFDA’s Office to assist in the investigation

13 and prosecution of SFDA cases. The SFDA investigators’ duties include drafting and serving as affiants to

14 SFDA search warrants.

15 18. In order to effectively perform their duties, SFDA investigators are required to undergo

16 training related to the ethical and legal responsibilities of their position and provided reference materials to

17 review for their work product. The training and reference materials cover all aspects of an investigators’

18 job duties. However, the training and reference materials provide particular focus on the requirements of

19 search warrants and warrant affidavits, which is a significant portion of SFDA investigators’ work

20 activities.

21 19. Supervising investigators, like Plaintiff JEFFREY PAILET, possess additional training for

22 their managerial positions based on their previous law enforcement experience and by the SFDA Office.

23 This training is intended to ensure that law enforcement activities comply with the law in order to make

24 sure that investigations were not compromised by illegal law enforcement activities, such as improper

25 search warrants.

26 20. As is the general practice, SFDA ADAs provide assignments, including investigating and

27 drafting search warrants, to their assigned SFDA investigator(s). The investigators undertake these

28 assignments utilizing their knowledge of the controlling law and training provided by SFDA.

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 Facts Under Investigation by the DA’s Office
2 21. In 2017, San Francisco Police Department officers were involved in an officer involved

3 shooting (“OIS”) while responding to a disturbance call. The investigation revealed that during this

4 incident, a suspect approached the officers, kicked one of them and was then pepper sprayed and a

5 struggle between the suspect and the officers commenced. During the ensuing struggle, the investigation

6 determined that the suspect punched an officer in the face, breaking his nose and knocked him down the

7 stairs. The investigation also determined that the suspect then turned on and began to attack another

8 officer. An officer then shot the suspect. The suspect initially survived the shooting and then later died, in

9 part, from complication from the shooting.

10 22. IIB investigates the criminal culpability in law enforcement incidents. Thus, IIB

11 investigators and ADAs assigned to this matter evaluated the actions of the officers involved. After this

12 analysis, the IIB initially declined to prosecute the officers related to this OIS.

13 23. In January of 2020, Defendant CHESA BOUDIN was elected as District Attorney of San

14 Francisco. Defendant CHESA BOUDIN came into office with a political objective to target officers with

15 criminal investigations. Defendant BOUDIN initially assigned Defendant DANA DRUSINSKY and other

16 Assistant District Attorneys to re-open the investigation of the OIS matter that is the subject of this

17 complaint.

18 24. On or around June 2020, Defendant STEPHANIE LACAMBRA was assigned to the

19 investigation of the OIS matter.

20 25. In June 2020, Defendant LACAMBRA and Defendant DRUSINSKY requested that the

21 previously assigned investigator be taken off the aforementioned OIS matter and that a new investigator

22 be assigned. Thereafter, the previously assigned investigator prepared a transfer memorandum to be

23 provided to the new investigator to inform them of all relevant facts and evidence from the investigation

24 of the OIS matter.

25 26. Due to this, on June 23, 2020, Plaintiff PAILET assigned a new investigator to the OIS

26 matter. That same day, Defendant LACAMBRA and Defendant DRUSINSKY instructed Plaintiff

27 PAILET to not share the transfer memorandum prepared by the prior investigator with the new

28 investigator.

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 27. On September 29, 2020, Defendant DRUSINSKY tasked the investigator with drafting a

2 search warrant and warrant affidavit for the personal and work cellular telephones of the involved officers

3 related to discussions concerning the OIS from the date of the OIS to the present. The investigator would

4 be required to attest to the search warrant and warrant affidavit as directed by Defendant DRUSINSKY

5 and Defendant LACAMBRA.

6 28. Following this assignment, the investigator discussed her concerns with her supervisor,

7 Plaintiff JEFFREY PAILET, related to whether there was sufficient probable cause and the issue of

8 staleness for the Defendant DRUSINSKY and Defendant LACAMBRA’s requested scope of the search

9 warrants. At this point, Plaintiff JEFFREY PAILET believed that the investigator’s questions related to

10 the search warrant assignment was merely a misunderstanding between the new investigator and

11 Defendant DRUSINSKY and Defendant LACAMBRA.

12 29. On October 1, 2020, after consulting with Plaintiff JEFFREY PAILET and receiving his

13 guidance, the investigator provided Defendant DRUSINSKY and Defendant LACAMBRA an initial draft

14 of the requested search warrant and warrant affidavit. This draft also included the investigator’s questions

15 related to the potential lack of sufficient probable cause for the scope of the search warrants.

16 30. In response to the investigator’s questions, Defendant DRUSINSKY and Defendant

17 LACAMBRA directed the investigator to state in her warrant affidavit accompanying the search warrants:

18 “In my training and experience, officers will often communicate about the facts and circumstances of their

19 actions via both their police department issues cell phones and devices as well as their personal phones”

20 and that this statement would provide sufficient probable cause. In addition, Defendant DRUSINSKY

21 and Defendant LACAMBRA provided the investigator with a revised draft of the search warrant and

22 warrant affidavit that conflicted with the training of SFDA investigators, SFDA reference materials and

23 applicable laws.

24 31. The heavily edited revised draft provided by Defendant DRUSINSKY and Defendant

25 LACAMBRA to the investigator deleted germane facts of the event at issue, including the suspect’s attacks

26 on the involved officers prior to the shooting.

27 32. The investigator again brought her concerns related to the legality of the recent changes to

28 the search warrant and warrant affidavit to her supervisor Plaintiff JEFFREY PAILET, particularly with

6
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 regard to Defendant DRUSINSKY’s and Defendant LACAMBRA’s subsequent improper edits and

2 directives for the search warrant and warrant affidavit that removed potentially exculpatory evidence.

3 Plaintiff PAILET did not want there to be any illegal conduct in the issuance of a search warrant and

4 wanted to make sure that the investigation was not compromised, so he decided to attend a meeting with

5 the supervising Assistant District Attorneys Defendant DRUSINSKY and Defendant LACAMBRA in

6 order to explain and report the improper and likely illegal language being used for the search warrants.

7
Plaintiff Jeffrey Pailet Reports the Issues of Legality of the Search Warrant and Warrant Affidavit
8 Draft as Drafted and Directed by Defendants Drusinsky and Lacambra

9 33. On October 21, 2020, a meeting was scheduled between the investigator, Defendant

10 DRUSINSKY and Defendant LACAMBRA to discuss the search warrant and warrant affidavit. The

11 investigator requested that her supervisor, Plaintiff JEFFREY PAILET, also take part in this meeting to

12 allow him to further discuss the legitimacy and legality of the ADAs’ directions for the language of the

13 search warrant and warrant affidavit.

14 34. During this meeting, Plaintiff PAILET explained to Defendant DRUSINSKY and

15 Defendant LACAMBRA the SFDA investigators’ roles & responsibilities and the required elements of a

16 search warrant and warrant affidavit, including the need to provide exculpatory information. Plaintiff

17 PAILET also questioned whether there was adequate probable cause to search the personal electronic

18 devices of the officers.

19 35. Following Plaintiff PAILET’s explanation of the problems with the search warrants and

20 Defendant DRUSINSKY and Defendant LACAMBRA’s directions to the investigator, Defendant

21 DRUSINSKY and Defendant LACAMBRA disregarded Plaintiff PAILET’s concerns and threatened

22 Plaintiff PAILET and the investigator that they were going to report to the District Attorney, Defendant

23 CHESA BOUDIN, Plaintiff PAILET’s concerns and that Plaintiff PAILET and the investigator were not

24 cooperating, refusing to follow their instructions and not fulfilling their job duties. Defendant

25 DRUSINSKY and Defendant LACAMBRA appeared to misunderstand Plaintiff PAILET’s motives in

26 correcting the language of the search warrants and improperly believe that Plaintiff PAILET did not

27 support Defendant CHESA BOUDIN’s political objectives.

28 36. Following this meeting, Defendant DRUSINSKY and Defendant LACAMBRA retaliated

7
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 against Plaintiff JEFFREY PAILET and restricted his access to the OIS case file. The OIS case file

2 became the only IIB case file that Plaintiff PAILET did not have access to, even though he was the

3 supervising investigator and senior investigator in IIB.

4 37. On October 22 or 23, 2020, Plaintiff PAILET requested Defendant DRUSINSKY and

5 Defendant LACAMBRA provide him access to the OIS case file. Defendant DRUSINSKY and

6 Defendant LACAMBRA refused to grant Plaintiff PAILET access to the file. This was done in clear

7 retribution for his advice and comments regarding the integrity of the language for the search warrant and

8 affidavit.

9 38. On October 23, 2020 and October 28, 2020, the investigator sent drafts of the warrant

10 affidavit and search warrant to Plaintiff JEFFREY PAILET for his review. In each of these drafts,

11 Defendant DRUSINSKY and Defendant LACAMBRA had altered the context of the incident, made

12 statements that did not have factual support and removed exculpatory information about how the incident

13 occurred. This continued to present numerous legal problems with the search warrants and warrant

14 affidavits, violated SFDA training and reference materials and therefore failed to establish the probable

15 cause required to perform a legal search. Further, it had the potential of compromising the investigation

16 and any evidence that would be obtained from the search warrants, if issued.

17 39. Contrary to Plaintiff JEFFREY PAILET’s repeated warnings, Defendant DRUSINSKY

18 and LACAMBRA continued to make and/or direct improper edits to the search warrant and warrant

19 affidavit.

20 40. The edits and directives of Defendant DRUSINSKY and Defendant LACAMBRA for the

21 search warrant and warrant affidavit contained improper statements, misrepresented the circumstances at

22 issue, excluded mandatory exculpatory information, were contrary to SFDA training and reference

23 materials and violated the ethics required of SFDA investigators and ADAs.

24 41. On November 2, 2020, after reviewing a subsequent draft of the search warrant and

25 warrant affidavit containing Defendant DRUSINSKY’s and Defendant LACAMBRA’s continued

26 improper actions, Plaintiff JEFFREY PAILET emailed Defendant DRUSINSKY and Defendant

27 LACAMBRA. In this email, he again presented in detail the illegality of their edits and directions related to

28 the search warrant and warrant affidavit. Based on his previous discussions with Defendant DRUSINSKY

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 and Defendant LACAMBRA, Plaintiff PAILET understood his email would be provided to Chief of Staff

2 Defendant DAVID CAMPOS and District Attorney Defendant CHESA BOUDIN.

3 42. On November 4, 2020, investigator Defendant DRUSINSKY and Defendant

4 LACAMBRA had a scheduled meeting related to the OIS case and the search warrant at issue. The

5 investigator again invited Plaintiff JEFFREY PAILET to this meeting, because of her concerns about the

6 improper actions of Defendant DRUSINSKY and Defendant LACAMBRA. The topic of this meeting

7 centered on the concerns outlined in Plaintiff PAILET’s November 2, 2020 email. Defendant

8 DRUSINSKY appeared visibly upset during this meeting and threatened again that Plaintiff PAILET and

9 the investigator’s refusal to comply with their edits was being brought to the attention of the District

10 Attorney, Defendant CHESA BOUDIN and that there would be repercussions. At this point, Plaintiff

11 PAILET believed he had informed all appropriate personnel in the District Attorney’s Office and that the

12 District Attorney himself had been made aware of his concerns about the illegal language of the search

13 warrant.

14 43. Prior to the above citied November 4, 2020 meeting, Plaintiff PAILET sent an email to the

15 Managing Attorney of IIB, Lateef Gray. Due to Managing Attorney Gray’s past involvement in the case,

16 he had been formally excluded from investigation. Anticipating that the meeting with Defendant

17 DRUSINSKY and Defendant LACAMBRA may result in further issues, PAILET emailed and asked who

18 he should consult regarding issues or concerns with Defendants DRUSINSKY and LACAMBRA. He

19 never received a response to this query.

20 Plaintiff is Retaliated Against and Terminated

21 44. On November 6, 2020, Plaintiff PAILET was notified by Chief of Staff Defendant

22 DAVID CAMPOS and Human Resources employee Richard Ng that he was to be terminated from his

23 employment at the SFDA. The SFDA confirmed that Plaintiff PAILET was to be terminated and refused

24 to provide any explanation for why he would be terminated, only that it was not for cause.

25 45. After receiving notice that he was to be terminated, Plaintiff JEFFREY PAILET emailed

26 District Attorney Defendant CHESA BOUDIN and SFDA Chief of Staff Defendant DAVID CAMPOS

27 expressing his confusion at his termination and again outlining his concerns regarding the legality of the

28 search warrants and warrant affidavits for the involved officers’ personal electronic communication

9
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 devices and Defendant DRUSINSKY and Defendant LACAMBRA’s actions in violation of law,

2 prosecutorial ethics and SFDA’s policies.

3 46. Following this, Plaintiff JEFFREY PAILET was informed that Chief of Staff Defendant

4 DAVID CAMPOS sent an email, directed to all SFDA personnel, informing them that Plaintiff PAILET

5 had been terminated.

6 47. Following this termination, Plaintiff JEFFREY PAILET subsequently availed himself of

7 his Government Code 3304(b) appeal rights. The hearing occurred on March 12, 2021. During this appeal,

8 Plaintiff PAILET again reported the improper unlawful conduct to the hearing officer and requested that

9 an investigation be done related to the events of his termination and for an explanation for why he was

10 terminated. However, he was notified on April 23, 2021 that his appeal was denied. No explanation was

11 given for his termination and he was informed that no investigation would be done.

12 48. Plaintiff JEFFREY PAILET’s termination and denial of his subsequent appeal of his

13 termination was in clear retaliation for his repeated protests and refusal to allow the improper and

14 unlawful actions by Defendants DRUSINSKY and LACAMBRA. This is a violation of California Labor

15 Code § 1102.5(b) & (c), San Francisco Campaign and Government Code § 4.115, prosecutorial ethics as

16 required by the Rules of Professional Conduct, the California Business and Professional Code, the

17 California State Bar and California’s public policy of accountable government.

18 FIRST CAUSE OF ACTION

Violation of California Labor Code § 1102.5
19 (Against all Defendants)
20 49. Plaintiff realleges and incorporate by reference, the allegations contained in paragraphs 1-

21 48 as stated above.

22 50. Defendants’ actions, as described above, violate California Labor Code § 1102.5(b), which

23 prohibits an employer, or any person acting on behalf of an employer, from retaliating against an employee

24 for disclosing information to a government agency or threatening to disclose to a government agency,

25 where the employee has reasonable cause to believe that the information discloses a violation of law.

26 51. Defendants’ actions, as described above, also violate California Labor Code § 1102.5(c),

27 which prohibits an employer, or any person acting on behalf of an employer, from retaliating against an

28 employee for refusing to participate in an activity that would result in a violation of state or federal statute,

10
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 or a violation of, or noncompliance with, a local, state, or federal rule or regulation.

2 52. During Plaintiff’s employment with the San Francisco District Attorney’s Office, Plaintiff’s

3 responsibilities including making sure investigations and prosecutions of criminal matters were done

4 according to California and Federal law, SFDA policy, investigator training and prosecutorial ethics.

5 53. Per the California Business and Professions Code as applied to attorneys, attorneys are

6 required to “support the Constitution and laws of the United States and of this state.” (Cal. Business and

7 Professions Code § 6068(a).) The 4th Amendment of the United States Constitution protects against

8 unreasonable search and seizure. Thus, when law enforcement seeks to search protected private material,

9 probable cause must be established or an exception to the protection must apply. The search of an

10 electronic communication device, including cellular phones falls under this protection. (CalECPA; Penal

11 Code § 1546.) Electronic cellular devices also garner heightened privacy considerations under California

12 law. (CalECPA; Penal Code § 1546.)

13 54. A search warrant may not be issued unless probable cause for the search is demonstrated.

14 This probable cause, supported by oath or affirmation, must particularly describe the place to be searched

15 and the persons and things to be seized. (Cal. Const., art I § 13.) For search warrant purposes, an affidavit

16 is a statement made under penalty of perjury before a magistrate. The deciding magistrate reviews the

17 information in the affidavit to determine whether there is a lawful basis to grant the requested search

18 warrant.

19 55. Probable cause that supports the issuance of a search warrant must be described by the

20 totality of the circumstances. Conclusionary statements alone are insufficient to establish probable cause

21 and support the issuance of a warrant: “Sufficient information must be presented to the magistrate to

22 allow that official to determine probable cause; his action cannot be a mere ratification of bare conclusions

23 of others.” (Illinois v. Gates, supra, at page 239.) The inclusion of a false statement in a warrant application

24 constitutes perjury. (Franks v. Delaware (1978) 438 U.S. 154, 155-156.) If a defendant can prove perjury or

25 reckless disregard for the truth by a preponderance of the evidence, the search warrant will be voided and

26 the fruits of the search excluded to the same extent as if probable cause were lacking on the face of the

27 affidavit. (Id.) The inclusion of false information is fatal to a search warrant and material omissions from a

28 search warrant affidavit are similarly fatal if the affiant excludes critical information from the affidavit “with

11
COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 an intention to mislead.” (United States v. Merrell (6th Cir. 2009) 330 F.App’x 556, 560. (emphasis in original).)

2 56. Under the California Rules of Professional Conduct and Business and Professions Code,

3 an attorney is subject to a duty of candor with regard to their representations to the court and others. Per

4 this duty, an attorney shall not seek to mislead the judge or judicial officer by “an artifice or false statement

5 of law or fact.” (Cal. Rule of Professional Conduct 5-200, Cal. Business and Professions Code § 6068(d).)

6 A violation of this duty constitutes cause for disbarment or suspension. (Cal. Business and Professions

7 Code § 6103.) Additionally, actions by an attorney that involve moral turpitude, dishonesty or corruption is

8 also cause for disbarment or suspension. (Cal. Business and Professions Code § 6106.) Finally, an attorney

9 who is found to engage in or consents to any deceit or collusion “with the intent to deceive the court” is

10 can be charged and found guilty of a misdemeanor. (Cal. Business and Professions Code § 6128(a).)

11 57. SFDA investigators, including Plaintiff PAILET, are trained to examine the facts at issue in

12 order to evaluate whether probable cause exists and, if so, to properly draft search warrants and

13 accompanying warrant affidavits in compliance with applicable state and federal laws. In drafting and

14 attesting to SFDA search warrants, SFDA investigators are required to provide the relevant facts of the

15 matter, including available exculpatory information, to establish the existence of probable cause and allow

16 the determining magistrate to weigh the totality of the circumstances in order to adequately evaluate the

17 legality of the proposed search.

18 58. At issue here, Defendants DRUSINSKY and LACAMBRA directed the new investigator

19 to draft a search warrant for the data contained on the personal electronic communication devices of

20 officers related to the OIS investigation. When the investigator provided Defendants DRUSINSKY and

21 LACAMBRA with her initial draft search warrant and affidavit, the Defendants made significant edits to

22 the draft that included numerous factual inaccuracies, misrepresented the circumstances of the event at

23 issue, withheld exculpatory information, and improperly identified known evidence, among other issues.

24 After reviewing these edits, the investigator brought her concerns regarding Defendants DRUSINSKY’s

25 and LACAMBRA’s improper edits to the search warrant and warrant affidavit to her supervisor, Plaintiff

26 JEFFREY PAILET.

27 59. After reviewing the Defendants’ changes to the investigator’s search warrant and affidavit,

28 Plaintiff PAILET identified numerous serious problems with the alterations. Specifically, the warrant and

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 affidavit contained multiple factual inaccuracies and excluded relevant exculpatory evidence. These edits

2 were such that the warrant and affidavit would no longer accurately represent the totality of the

3 circumstances and applicable evidence to allow the reviewing magistrate the ability to adequately weigh the

4 legality of the proposed search.

5 60. Due to these concerns, Plaintiff PAILET sent messages to, and met with, Defendants

6 DRUSINSKY and LACAMBRA. Following each meeting, Defendants DRUSINSKY and LACAMBRA

7 continued to direct the investigator to make further edits to the search warrant and affidavit that continued

8 to constitute misrepresentations of the facts and omit mandatory exculpatory evidence. The investigator

9 continued to be concerned by these edits by Defendant DRUSINSKY and Defendant LACAMBRA and

10 sought additional guidance from her supervisor, Plaintiff PAILET.

11 61. Due to this continued conduct, Plaintiff PAILET reported these issues in detail to

12 Defendants DRUSINSKY and LACAMBRA on many occasions from October 2020 through November

13 2020. During each of these instances, his reports of the illegality of, and problems with, the Defendants’

14 edits and instructions to the search warrant and affidavit were derided, purposely ignored and the

15 improper and illegal actions continued. Additionally, on at least two occasions following Plaintiff

16 PAILET’s warnings to Defendants DRUSINSKY and LACAMBRA, Defendants DRUSINSKY and

17 LACAMBRA threatened that they would report Plaintiff PAILET’s objections to District Attorney

18 Defendant CHESA BOUDIN. Following these events, Defendants DRUSINSKY and LACAMBRA

19 acted to purposely exclude Plaintiff PAILET’s access to the case file and halt his involvement in the

20 investigator’s work product.

21 62. Plaintiff PAILET refused to go along with Defendants DRUSINSKY and LACAMBRA’s

22 improper directions regarding the terms of the search warrant and affidavit and subsequently reported

23 these issues and illegality to Defendant DANA DRUSINSKY, Defendant STEPHANIE LACAMBRA,

24 Managing Attorney of IIB Lateef Grey, District Attorney Defendant CHESA BOUDIN and Chief of Staff

25 Defendant DAVID CAMPOS. Due to Plaintiff PAILET’s continued objections towards Defendants

26 DRUSINSKY and LACAMBRA’s use of language that created legal violations and their violation of

27 attorney and prosecutorial ethics, Plaintiff PAILET was subsequently terminated from the SFDA by

28 District Attorney Defendant CHESA BOUDIN.

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 63. Defendants’ actions, as described above, violate California Labor Code § 1102.5(b) & (c)

2 which prohibits an employer, or any person acting on behalf of an employer, from retaliating against an

3 employee for refusing to participate in an activity that would result in a violation of law and for disclosing

4 information to a government agency or threatening to disclose to a government agency, where the

5 employee has reasonable cause to believe that the information discloses a violation of law.

6 64. As a proximate result of Defendants’ actions, Plaintiff has suffered and continue to suffer

7 substantial loss of earnings and other employment benefits, and has suffered and continues to suffer

8 embarrassment, humiliation, and mental anguish, all to his damage in an amount according to proof.

9 65. In doing the things alleged herein, the conduct of Defendants DANA DRUSINSKY,

10 STEPHANIE LACAMBRA, CHESA BOUDIN, DAVID CAMPOS, SAN FRANCISCO DISTRICT

11 ATTORNEY’S OFFICE and the CITY AND COUNTY OF SAN FRANCISCO and DOES 1-50 was

12 despicable. The individual Defendants acted towards Plaintiff with malice, oppression and fraud and

13 willful and conscious disregard to Plaintiff’s rights entitling him to an award of punitive damages.

14 Wherefore, Plaintiff JEFFREY PAILET prays for judgment against Defendants DANA
15 DRUSINSKY, STEPHANIE LACAMBRA, CHESA BOUDIN, DAVID CAMPOS, SAN FRANCISCO
16 DISTRICT ATTORNEY’S OFFICE and the CITY AND COUNTY OF SAN FRANCISCO and DOES
17 1-50, as set forth below.
18 SECOND CAUSE OF ACTION
Violation of San Francisco Campaign and Government Code § 4.115
19 (Against all Defendants)
20 66. Plaintiff realleges and incorporate by reference, the allegations contained in paragraphs 1-

21 65 as stated above.

22 67. Defendants’ actions, as described above, violate San Francisco Campaign and Government

23 Conduct Code § 4.115(a), which prohibits a San Francisco City officer or employee to retaliate against any

24 other San Francisco City officer or employee because the employee has in good faith alleged conduct that

25 may constitute a violation of law, governmental ethics laws, regulations, or rules.

26 68. Defendants’ actions, as described above, also violated San Francisco Campaign and

27 Government Conduct Code § 4.115(b)(4) when a supervisor, after receiving the report of alleged conduct

28 that may constitute a violation of law, governmental ethics laws, regulations, or rules, failed to refer the

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 complainant to the Ethics Commission and document the referral.

2 69. During Plaintiff’s employment with the SAN FRANCISCO DISTRICT ATTORNEY’S

3 OFFICE, Plaintiff’s responsibilities including making sure investigations and prosecutions of criminal

4 matters were done according to California and Federal law, SFDA policy, investigator training and

5 prosecutorial ethics.

6 70. Per the California Business and Professions Code as applied to attorneys, attorneys are

7 required to “support the Constitution and laws of the United States and of this state.” (Cal. Business and

8 Professions Code § 6068(a).) The Fourth Amendment of the United States Constitution protects against

9 unreasonable search and seizure. Thus, when law enforcement seeks to search protected private material,

10 probable cause must be established or an exception to the protection must apply. The search of an

11 electronic communication device, including cellular phones falls under this protection. (CalECPA; Penal

12 Code § 1546.) Electronic cellular devices also garner heightened privacy considerations under California

13 law. (CalECPA; Penal Code § 1546.)

14 71. A search warrant may not be issued unless probable cause for the search is demonstrated.

15 This probable cause, supported by oath or affirmation, must particularly describe the place to be searched

16 and the persons and things to be seized. (Cal. Const., art I § 13.) For search warrant purposes, an affidavit

17 is a statement made under penalty of perjury before a magistrate. The deciding magistrate reviews the

18 information in the affidavit to determine whether there is a lawful basis for the requested search warrant.

19 72. Probable cause that supports the issuance of a search warrant must be described by the

20 totality of the circumstances. Conclusionary statements alone are insufficient to establish probable cause

21 and support the issuance of a warrant: “Sufficient information must be presented to the magistrate to

22 allow that official to determine probable cause; his action cannot be a mere ratification of bare conclusions

23 of others.” (Illinois v. Gates, supra, at page 239.) The inclusion of a false statement in a warrant application

24 constitutes perjury. (Franks v. Delaware (1978) 438 U.S. 154, 155-156.) If a defendant can prove perjury or

25 reckless disregard for the truth by a preponderance of the evidence, the search warrant will be voided and

26 the fruits of the search excluded to the same extent as if probable cause were lacking on the face of the

27 affidavit. (Id.) The inclusion of false information is fatal to a search warrant and material omissions from a

28 search warrant affidavit are similarly fatal if the affiant excludes critical information from the affidavit “with

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 an intention to mislead.” (United States v. Merrell (6th Cir. 2009) 330 F.App’x 556, 560. (emphasis in original).)

2 73. Under the California Rules of Professional Conduct and Business and Professions Code,

3 an attorney is subject to a duty of candor with regard to their representations to the court and others. Per

4 this duty, an attorney shall not seek to mislead the judge or judicial officer by “an artifice or false statement

5 of law or fact.” (Cal. Rule of Professional Conduct 5-200, Cal. Business and Professions Code § 6068(d).)

6 A violation of this duty constitutes cause for disbarment or suspension. (Cal. Business and Professions

7 Code § 6103.) Additionally, actions by an attorney that involve moral turpitude, dishonesty or corruption is

8 also cause for disbarment or suspension. (Cal. Business and Professions Code § 6106.) Finally, an attorney

9 who is found to engage in or consents to any deceit or collusion “with the intent to deceive the court” is

10 can be charged and found guilty of a misdemeanor. (Cal. Business and Professions Code § 6128(a).)

11 74. SFDA investigators, including Plaintiff PAILET, are trained to examine the facts at issue in

12 order to evaluate whether probable cause exists and, if so, to properly draft search warrants and

13 accompanying warrant affidavits in compliance with applicable state and federal laws. In drafting and

14 attesting to SFDA search warrants, SFDA investigators are required to provide the relevant facts of the

15 matter, including available exculpatory information, to establish the existence of probable cause and allow

16 the determining magistrate to weigh the totality of the circumstances in order to adequately evaluate the

17 legality of the proposed search.

18 75. At issue here, Defendants DRUSINSKY and LACAMBRA directed the new investigator

19 to draft a search warrant for the data contained on the personal electronic communication devices of

20 Officers related to the OIS investigation. When the investigator provided Defendants DRUSINSKY and

21 LACAMBRA with her initial draft search warrant and affidavit, the Defendants made significant edits to

22 the draft that included numerous factual inaccuracies, misrepresented the circumstances of the event at

23 issue, withheld exculpatory information, and improperly identified known evidence, among other issues.

24 After reviewing these edits, the investigator brought her concerns regarding Defendants DRUSINSKY’s

25 and LACAMBRA’s improper edits to the search warrant and warrant affidavit to her supervisor, Plaintiff

26 JEFFREY PAILET.

27 76. After reviewing the Defendants’ changes to the investigator’s search warrant and affidavit,

28 Plaintiff PAILET identified numerous serious problems with the alterations. Specifically, the warrant and

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 affidavit contained multiple factual inaccuracies and excluded relevant exculpatory evidence. These edits

2 were such that the warrant and affidavit no longer accurately represented the totality of the circumstances

3 and applicable evidence to allow the reviewing magistrate the ability to adequately weigh the legality of the

4 proposed search.

5 77. Due to these concerns, Plaintiff PAILET reported these violations to Defendants

6 DRUSINSKY and LACAMBRA. Following each meeting, Defendants DRUSINSKY and LACAMBRA

7 continued to direct the investigator to make further edits to the search warrant and affidavit that continued

8 to constitute misrepresentations of the facts and omit mandatory exculpatory evidence. The investigator

9 continued to be concerned by these edits by Defendant DRUSINSKY and Defendant LACAMBRA and

10 continued to seek guidance from her supervisor, Plaintiff PAILET.

11 78. Due to this continued conduct, Plaintiff PAILET reported these issues in detail to

12 Defendants DRUSINSKY and LACAMBRA on many occasions from October 2020 through November

13 2020. During each of these instances, his reports of the illegality of and problems with the Defendants’

14 edits and instructions to the search warrant and affidavit were derided, purposely ignored and the

15 improper and illegal actions continued. Additionally, on at least two occasions following Plaintiff

16 PAILET’s warnings to Defendants DRUSINSKY and LACAMBRA, Defendants threatened that they

17 would report Plaintiff PAILET’s objections to District Attorney Defendant CHESA BOUDIN. Following

18 these events, Defendants DRUSINSKY and LACAMBRA acted to purposely exclude Plaintiff PAILET’s

19 access to the aforementioned OIS case file and halt his involvement in the investigator’s work product.

20 79. Plaintiff PAILET refused to go along with Defendants DRUSINSKY and LACAMBRA’s

21 improper directions regarding the terms of the search warrant and affidavit and subsequently reported

22 these issues and illegality to Defendant DANA DRUSINSKY, Defendant STEPHANIE LACAMBRA,

23 Managing Attorney of IIB Lateef Grey, District Attorney Defendant CHESA BOUDIN and Chief of Staff

24 Defendant DAVID CAMPOS. Due to Plaintiff PAILET’s continued objections towards Defendants

25 DRUSINSKY’s and LACAMBRA’s legal violations and their violation of attorney and prosecutorial

26 ethics, Plaintiff PAILET was subsequently terminated from the SFDA by District Attorney Defendant

27 CHESA BOUDIN.

28 80. Following this termination, Plaintiff PAILET reported the violations of law contained in

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 the search warrant and affidavit at issue and Defendant DANA DRUSINSKY and Defendant

2 STEPHANIE LACAMBRA’s improper retaliation against him to District Attorney Defendant CHESA

3 BOUDIN and Chief of Staff Defendant DAVID CAMPOS to again warn the SFDA of these issues.

4 81. Plaintiff PAILET believed that following this report to District Attorney Defendant

5 CHESA BOUDIN and Chief of Staff Defendant DAVID CAMPOS, his termination would be rescinded

6 and the improper activity by Defendant DANA DRUSINSKY and Defendant STEPHANIE

7 LACAMBRA would be halted. However, following this report, Plaintiff PAILET’s termination was

8 continued and the subsequent appeal of his termination was denied. It does not appear that any of the

9 defendants who received Plaintiff PAILET’s report of alleged conduct constituting a violation of law,

10 governmental ethics laws, regulations and rules took any action to assist the complainant, including

11 referring the matter to the Ethics Commission.

12 82. Defendants’ actions, as described above, violate San Francisco Campaign and Government

13 Conduct Code § 4.115(a) which prohibits a City officer or employee from retaliating against a City officer

14 or employee for alleging a violation of law and for disclosing information to a government agency or

15 threatening to disclose to a government agency, where the employee has reasonable cause to believe that

16 the information discloses a violation of law, governmental ethics laws, regulations or rules.

17 83. Defendants’ actions, as described above, also violate San Francisco Campaign and

18 Government Conduct Code § 4.115(b)(4) when a supervisor, after receiving the report of alleged conduct

19 that may constitute a violation of law, governmental ethics laws, regulations, or rules, failed to refer the

20 complainant to the Ethics Commission and document the referral.

21 84. As a proximate result of Defendants’ actions, Plaintiff has suffered and continue to suffer

22 substantial loss of earnings and other employment benefits, and has suffered and continues to suffer

23 embarrassment, humiliation, and mental anguish, all to his damage in an amount according to proof.

24 85. In doing the things alleged herein, the conduct of Defendants DANA DRUSINSKY,

25 STEPHANIE LACAMBRA, CHESA BOUDIN, DAVID CAMPOS, SAN FRANCISCO DISTRICT

26 ATTORNEY’S OFFICE and the CITY AND COUNTY OF SAN FRANCISCO and DOES 1-50 was

27 despicable. The individual Defendants acted towards Plaintiff with malice, oppression and fraud and

28 willful and conscious disregard to Plaintiff’s rights entitling him to an award of punitive damages.

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 Wherefore, Plaintiff JEFFREY PAILET prays for judgment against Defendants DANA

2 DRUSINSKY, STEPHANIE LACAMBRA, CHESA BOUDIN, DAVID CAMPOS, SAN FRANCISCO

3 DISTRICT ATTORNEY’S OFFICE and the CITY AND COUNTY OF SAN FRANCISCO and DOES

4 1-50, as set forth below.

5 PRAYER AND REQUEST FOR RELIEF

6 Plaintiff JEFFREY PAILET seeks judgment on the First Cause of Action against all Defendants,

7 as follows:

8 1. Compensatory damages, including lost past and future wages and benefits, and emotional

9 distress damages, in a sum according to proof;

10 2. Punitive damages against individual Defendants, in a sum according to proof;

11 3. Interest on judgment, including prejudgment interest, at the legal rate;

12 4. Attorneys’ fees and costs including but not limited to those provided under Code of Civ.

13 Pro. §1021.5 and Labor Code §2699 et seq; and;

14 5. Such other and further relief as the Court may deem proper.

15 Plaintiff JEFFREY PAILET seeks judgment on the Second Cause of Action against Defendants

16 DANA DRUSINSKY, STEPHANIE LACAMBRA, CHESA BOUDIN, DAVID CAMPOS and DOES

17 1-50, and each of them, as follows:

18 1. Civil penalties against each defendant, not to exceed $10,000;

19 2. Punitive damages against individual Defendants, in a sum according to proof;

20 3. Interest on judgment, including prejudgment interest, at the legal rate;

21 4. Attorneys’ fees and costs including but not limited to those provided under Code of Civ.

22 Pro. §1021.5 and Labor Code §2699 et seq; and;

23 5. Such other and further relief as the Court may deem proper.

24 DEMAND FOR JURY TRIAL

25 As to the matters complained of herein against Defendants CITY AND COUNTY OF SAN

26 FRANCISCO, SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE, DANA DRUSINSKY,

27 STEPHANIE LACAMBRA, CHESA BOUDIN, DAVID CAMPOS and DOES 1-50, and each of them,

28 Plaintiff JEFFREY PAILET demands a trial by jury.

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COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
 1 Dated: November 2, 2021 Respectfully submitted,
RAINS LUCIA STERN
2 ST. PHALLE & SILVER, PC
3 _______________________________
By: Eustace de Saint Phalle
4 Attorneys for Plaintiff JEFFREY PAILET
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