News - October 20, 2010

County motion to dismiss Buckheit lawsuit fails

by Renee Batti

With a recent ruling by U.S. Magistrate Judge Joseph Spero, Atherton resident Jon Buckheit has prevailed a second time in defending his right to move forward with his federal lawsuit against the town of Atherton and San Mateo County.

The $10 million lawsuit was filed in October 2009 as a result of Mr. Buckheit's arrest a year before at his home. He had called the police to intervene during a domestic violence incident involving his then-girlfriend and housemate, and even though he said he was the victim — and had the injuries to prove it — the police arrested him instead of the woman.

The county District Attorney's Office never prosecuted the case, and Mr. Buckheit in January won a declaration of factual innocence in San Mateo County superior court. But the arrest and its aftermath started a chain of revelations and accusations that have resulted in increased legal costs for the financially strapped town and closer scrutiny of the police department.

Mr. Buckheit has amended his original lawsuit twice, and his amendments name three officers involved in the arrest and Councilman Jerry Carlson as defendants. Mr. Carlson, he charges, opposed his appointment to the town's Finance Committee in retaliation for his lawsuit against the town.

After the lawsuit was amended the first time, Atherton and the county tried and failed to have it dismissed last spring. Mr. Buckheit amended the lawsuit a second time in June, and the county filed a motion to dismiss that version of the lawsuit without a trial.

In a Sept. 24 ruling, Judge Spero allowed the lawsuit to proceed, rejecting most of the county's claims in its motion while upholding several others.

The lawsuit

Among the assertions in the lawsuit, Mr. Buckheit maintains that his arrest instead of his girlfriend's was the result of a county policy of discriminating against men when domestic abuse incidents are reported "so that adult males are much more likely to be arrested and prosecuted, regardless of the true circumstances or facts."

The lawsuit also cites the county's role in denying him a copy of the police report of the arrest, although the report was essential for his pursuit of a court declaration of factual innocence.

(The town of Atherton also refused to give Mr. Buckheit the police report, and has already paid him $8,000 for his attorney's fees after he had to sue for the document.)

Mr. Buckheit added complaints to the lawsuit after the court hearings leading to his declaration of factual innocence. Those complaints centered on the addition of a false charge of child abuse in the police report, and the admission under oath by police officer Tony Dennis that he hadn't included that charge in the original report.

As a result of Mr. Dennis' statement, the county District Attorney's Office is investigating whether the police report had been falsified, and by whom.

Mr. Buckheit has opposed turning the investigation over to the district attorney, maintaining that it is "totally inappropriate" for the county, which is a defendant in his lawsuit, to be involved. "The D.A. has a vested interest in not exposing the wrongdoing," he said last spring.

Rather, he said, an outside agency such as the state attorney general's office or the FBI should investigate the matter.

The investigation is stalled because Mr. Buckheit has refused the county investigator's request to release the police report, which was sealed by the court as part of the factual innocence declaration. He said he would turn the report over to another agency if it were assigned to investigate, but he wouldn't agree to unseal it for "a conflicted party."

Meanwhile, a mandatory mediation session is set for next month between the plaintiff and defendants, Mr. Buckheit said. "I'm going in with an open mind, but given their failure to try to correct this thing — which could have been solved very easily and very cheaply — I'm not optimistic" about a settlement, he said.


Posted by Proud to be Blue, a resident of another community
on Oct 19, 2010 at 2:39 pm

How long can our legal system allow this tantrum to last? Obviously Mr. Buckheit is used to getting his way from his former business career, titles, and money, but this is ridiculous when police officers get sued for simply doing their jobs. They've done nothing wrong, as the DA has proven, and there has been no police report falsification as had that been true people would have been prosecuted by now. I wish the Almanac would stop sensationalizing this crap.

Posted by POGO, a resident of Woodside: other
on Oct 19, 2010 at 3:08 pm

Proud to be Blue -

Just because you say something doesn't make it true (ironically, very much like writing a police report.) Judge Spero who, unlike you, actually heard this case and listened to the arguments, believes Mr. Buckheit has a case. So do a lot of us who don't wear badges for a living.

And perhaps that's because a different judge found that Mr. Buckheit had been falsely arrested and that his police report HAD been falsified. Sorry, but many of us don't consider false arrests and falsifying reports to be the police "simply doing their job." Of course, in light of Chief Guerra's recent comment that APD reports are falsified all the time, maybe it is.

No, Mr. Buckheit's litigation isn't crap, Mr. Proud. It's a crime and it's the basis for a major civil rights law suit - which can be VERY expensive for the loser. The Town would be wise to take this lawsuit very seriously.

Two words of advice for the Atherton Town Council: Settle. Fast.

Posted by Menlo Voter, a resident of Menlo Park: other
on Oct 19, 2010 at 3:22 pm


as ex-law enforcement I understand your angst about police officers being sued for "just doing their jobs." Unfortunately, falsifying reports and false arrest don't fall into the "just doing their job" category. They are crimes. And you're right, someone should have been arrested and prosecuted by now for the falsification of the police report, but they haven't. Why? Why did it take Atherton PD 8 months to cough up the report Mr. Buckheit had every right to see? Why did a judge make a finding of factual innocence in regards to Mr. Buckheit's arrest? Why, per Chif Guerra, is the investigation into the falsified report still ongoing this long after it came to light? Could it be because the Chief is trying to stall until there is some kind of resolution in the Buckheit case that allows him to make the problem go away without firing or prosecuting a dirty cop?

Posted by True Blue, a resident of Atherton: other
on Oct 19, 2010 at 3:43 pm

Pride can be a deadly sin:
Oh I get it! You wear the guy out till he crumbles, and then pretend nothing ever happened.
Why does this remind me of the Johns case? - And just about all the other failed expectations that the town might actually want to uphold a bunch of inconvenient laws that interfere in operation of this pension factory.

Posted by Michael G. Stogner, a resident of another community
on Oct 19, 2010 at 4:35 pm

Dear Proud,

Time to turn in the badge, taser & gun.

Posted by Jon Buckheit, a resident of Atherton: West Atherton
on Oct 19, 2010 at 5:00 pm

There is obviously some confusion about these issues.

Stephen Wagstaffe asked my attorney for permission to release the police report so he could investigate the police report falsification fact (not allegation; again, this was admitted to, under oath, by APD Officer Dennis). The Almanac accurately reported my refusal, and the reasons why I refused (the obvious conflict of interest).

In the Palo Alto paper last week, Chief Mike Guerra stated in fact the district attorney has been investigating this matter since February.

These two facts seem at odds and perhaps the Almanac can clear this up
through some tough questions.

I do know that my calendar now reads October, and almost the end of it. That means this so-called "investigation" has been going on for almost nine months with no result. I also know, as the victim of the falsification, I have been contacted by no investigator working for Mr. Wagstaffe as one would normally expect.

I tend to agree with Menlo Voter's intuition about why this has unfolded in this manner.

I do understand about the "blue wall of silence".

I do not understand how that "blue wall of silence" has been extended to Jim Dobbie, Jerry Carlson, Elizabeth Lewis, and Charles Marsala.

Another opportunity for investigative journalism on the part of the Almanac, perhaps...

Posted by forcefield, a resident of Atherton: West of Alameda
on Oct 19, 2010 at 10:21 pm

Marsala is on his way out, humiliated and disgraced.

Carlson can't make up his mind to save his life

Lewis hates anything Kathy is for.

That leaves Dobbie who is too busy micromanaging Town employees to pay attention to things that matter.

Posted by Old legends never die, a resident of Atherton: West of Alameda
on Oct 19, 2010 at 10:54 pm

When I was a kid, my father told me that a bully, someday, will pick on the wrong person and will get his just desserts.

I've read over the years about the Atherton police picking on John Johns, Bothan, and others. It looks like they got so full of themselves that they figured they could even pick on a very wealthy resident who was a tough business CEO, and get away with it.

It looks like the bullies have met their match.

I for one will be enjoying every minute of it.

Posted by peter carpenter, a resident of Atherton: Lindenwood
on Oct 19, 2010 at 11:45 pm

peter carpenter is a registered user.

Betting against Jon on this case would be unwise after two separate third party rulings n his favor.

The Town should settle NOW.

Posted by True Blue, a resident of Atherton: other
on Oct 19, 2010 at 11:51 pm

I just watched the 11:00 news--looks like Atherton is not the only city that has police unions using leverage to effect city council election outcomes. Read the Walnut Creek story in tomorrow's paper with a careful eye. Or the Santa Cruz city councilman story already "slam dunked". Who wants to guess how that guy voted on pension reform.
No wonder more and more residents have that odd feeling, that we are simply occupying turf that has been stealthily claimed away, and all tied up with a big blue bow.

Posted by court watcher, a resident of Atherton: other
on Oct 20, 2010 at 7:16 am

The Buckheit case and the Johns case have two things in common.

Both Buckheit and Johns were subject to intimidation by the Police Department. The Town tried to get both cases thrown out on a technicality.

It looks like both cases are destined for the same result, a huge cash payout preceeded by excessive fees paid to attorneys.

The City Council should learn from its mistakes.

Posted by Don't Settle, a resident of Atherton: Lindenwood
on Oct 20, 2010 at 7:21 am

I hope the Town doesn't settle with Buckheit.

The only way the APD is going to be cleaned up is if its corrupt officers are exposed.

The Town has shown a complete inability to ferret out misconduct by itself. This means that the only way the residents will know what is really going on is if Jon Buckheit's case goes to trial.

Go Jon Go! Do us all a favor and go the distance on this one. Don't settle.

Posted by missmollywog, a resident of Menlo Park: Fair Oaks
on Oct 20, 2010 at 9:02 am

Good for the Atherton citizen standing up for his rights and pursuing the Atherton Cops after they pursued him. Atherton would be wise to settle and settle now.

Posted by Michael G. Stogner, a resident of another community
on Oct 20, 2010 at 9:28 am

There is another element here that is not being discussed, We want the Atherton Police Officer(s) arrested, charged and if found guilty, sent to prison for committing a Felony against Jon Buckheit.

This isn't just about money.

Posted by Sean M., a resident of Atherton: West Atherton
on Nov 5, 2010 at 6:42 am

The Attorney General's office needs to investigate this. NOT Steve Wagstaffe, who will protect any San Mateo cop or prosecutor who knowingly lies to the public on their job.

Good for Buckheit for challenging the County.

Mr. Buckheit: are you aware that there's currently a lawsuit against the San Mateo DA's office for wrongfully dropping a case and the prosecutor lying to have it dropped? This has been in the press. The family who has sued intends to keep suing all the way to the California Supreme Court.

Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 5, 2010 at 6:45 am

Every Atherton resident owes John Buckheit a big THANK YOU for his unyielding pursuit of justice and the truth. What happened to John could happen to anyone else if the underlying problems are not solved.

Posted by Truth be told, a resident of Atherton: other
on Nov 5, 2010 at 7:51 am

Peter is right about one thing if it can happen to Buckheit it can happen to anybody.

All of us living in Atherton are vulnerable to a small minority of cops working for Atherton who wear a very dark shade of blue. They think and act like thugs, drunk with power and ignorant of their arrogance.

Each and every one of us is vulnerable to the same smear tactics, we abused a child or we glanced at naughty photos and then we used our money to buy our way out of being held accountable.

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