SAN DIEGO — A Brawley police detective’s federal lawsuit against the city of Imperial, its Police Department and former chief will move forward following a judge’s ruling that both denied and granted parts of defendants’ motion to dismiss the complaint.
Monday’s ruling by U.S. District Judge Thomas J. Whelan allows the lawsuit by Kali Orff and her wife, Michelle Kristol, to move forward, upholding claims of alleged civil rights violations, false light, public disclosure of private facts as well as plaintiffs’ request for punitive damages.
Whelan’s ruling dismissed six of plaintiffs’ 11 original causes of action, and allowed plaintiffs the opportunity to amend by June 26 the dismissed causes of action in several instances, while prohibiting any such amending in other instances.
Orff, who is a Brawley Police Department detective, and Kristol, who is an Ventura County Sheriff’s Office detective, had filed a lawsuit in January against the city, the department and former chief Miguel Colon for allegedly failing to refer for prosecution the alleged sexual assault of Orff at an Imperial residence in January 2016.
Plaintiffs’ lawsuit, which also named Orff’s alleged assailant as a defendant, further contended that Colon had violated their civil rights and discriminated against them because of their sexual orientation.
Whelan’s ruling on Monday is also notable for upholding several causes of action that defendants’ had motioned to have dismissed, including that Orff’s privacy was violated when Colon allegedly called both her and Kristol’s supervisors to divulge details of Orff’s alleged sexual assault.
If true, Colon’s alleged conduct also gives rise to an “implication of malice, changing the character of the conduct alleged from isolated indiscretions to an ‘aggravated abuse of authority,” Whelan stated in his ruling denying the motion to dismiss.
Following a call that Kristol reportedly had made to Colon in May 2016 questioning why Orff’s case had not been submitted to the county District Attorney’s Office for prosecution, Colon reportedly called Kristol’s supervisor and allegedly divulged details of Orff’s assault and questioned her character and fitness to be an officer, the complaint stated.
Based on that account, Whelan’s ruling on Monday had allowed two separate causes of action alleging Kristol had sustained emotional distress to remain part of the complaint.
Causes of action that Whelan had dismissed with leave to amend included the alleged violation of Orff’s right to due process and equal protection, as well as the claims that Colon is liable for his alleged interference in the sexual assault investigation based on conduct performed during the performance of his duties.
Whelan also allowed plaintiffs’ counsel to amend Orff’s claim that the city and Police Department failed to adequately train officers and maintained policies that were indifferent to citizens’ constitutional rights.
“The Complaint does not allege in what manner the law enforcement officers are poorly trained, how confidential information is misused, how police misconduct is ratified, or how any of this alleged malfeasance caused injury to Orff,” Whelan stated in his ruling.
Whelan on Monday had also dismissed two causes of action against the city and Colon by Kristol for lack of standing, ruling that defendants’ alleged violation of Kristol’s civil rights were not made readily apparent by the complaint.
“The Court does not decide at this time whether Detective Kristol suffered a constitutional injury that could confer standing to assert a (U.S. Code § 1983) cause of action — only that the Complaint as drafted does not sufficiently allege facts to support such an injury,” Whelan’s ruling stated.
A cause of action is a set of facts that extend a person the right to seek legal redress or relief against another party. Such causes of action also form the legal theory forming the basis of a lawsuit.
Whelan’s ruling on Monday also granted a motion by Orff’s alleged assailant, Andrew Smithson, to dismiss two of Kristol’s causes of action against him.
The motion by Smithson, who is identified in the complaint as a U.S. Customs and Border Protection agent, to dismiss the lawsuit’s fifth and sixth causes of action against him had gone unchallenged by plaintiffs and were granted by Whelan without leave to amend.
The causes of action alleged that Kristol had been subjected to intentional and negligent emotional distress as a result of Smithson’s alleged actions.
Smithson is alleged to have sexually assaulted Orff on Jan. 31, 2016, at a residence in Imperial where a group of friends and acquaintances gathered after a night out celebrating a birthday.
Plaintiffs’ lawsuit contends that after returning to the Imperial residence, Orff had temporarily fallen asleep and subsequently awoke to find her pants unfastened, pulled down and Smithson sexually assaulting her, the court complaint stated.
Orff reportedly punched her assailant in the face and immediately called 911, resulting in Smithson’s arrest by Imperial Police. During a subsequent investigation by police, Smithson reportedly confessed to the alleged crime, the court complaint stated.
Orff’s cause of action against Smithson for alleged sexual assault and battery were upheld, as were her causes of action against Colon for alleged defamation and false light.
When plaintiffs’ attorneys notified the city and Police Department in mid-2016 of their intent to sue, Colon had stated that the alleged incident was investigated appropriately and submitted to the DA’s Office in a timely manner.
The case had been submitted to the DA’s Office on July 1 for possible prosecution and was subsequently rejected on Aug. 16, the DA’s Office previously stated.
Colon was reportedly placed on administrative leave in mid-March for reasons unknown. A job discrimination complaint he subsequently filed with the state Department of Fair Employment and Housing shortly after being placed on administrative leave suggests the city manager had asked Colon to retire on account of his age.
Colon was reportedly planning on filing a lawsuit in Superior Court against the city for alleged job discrimination and retaliation, as well as wrongful termination, his attorney previously stated.
Editor's note: This article was updated to correctly state that Kristol is employed by the Ventura County Sheriff's Office.