An embattled Santa Clara County prosecutor is suing his boss and the county, claiming his free-speech rights were violated when he was reassigned and later forced out of the district attorney’s office following a newspaper piece he wrote questioning criminal-justice reform amid rising violence against Asian Americans.
Daniel Chung alleges in a federal lawsuit filed Tuesday that District Attorney Jeff Rosen and his office started retaliating against Chung after his Feb. 14 opinion submission ran in The Mercury News.
The lawsuit asserts that within two days of the piece’s publication, he was reassigned to a lower-profile role, and was eventually put on administrative leave May 28 when he was escorted out by armed DA investigators, and that he was depicted in an office-wide bulletin warning staff not to allow him on county property.
On Sept. 10, Chung was recommended for termination by the office, pending a disciplinary hearing, according to the suit.
“The timing, they’re not going to be able to get around that,” said attorney Jim McManis, who is representing Chung. “Two days after he published, they put the hammer down on him.”
The district attorney’s office referred a request for comment to the county counsel’s office.
“We have not been served with the lawsuit and have no comment at this time,” County Counsel James Williams said in a statement to this news organization.
Chung’s lawsuit seeks unspecified damages and besides alleging his First Amendment rights were infringed, McManis says he plans to argue that practices that form the basis of the allegations are systemic in the office.
In the February opinion piece that apparently touched off the sequence of events chronicled in the lawsuit, Chung addressed the ongoing rise in anti-Asian violence, and criticized proposed legislation to downgrade classifications of robberies when mental-health issues factored into making a victim fearful, and if a gun used was unloaded or inoperable.
“As an Asian American and Korean American, Daniel felt strongly about how these people were getting victimized during the pandemic and getting blamed for it. He felt the focus was more on rehabilitating criminals than protecting victims,” McManis said. “There was nothing inflammatory about it.”
Before the piece was published, Chung was prosecuting a high-profile case involving a Seaside man who caused a scare at Westfield Valley Fair mall after he allegedly posted social-media messages about a shooting and brought guns to the site. Chung was quoted by this news organization in a story about the case saying he thought shortcomings in the penal code prevented his office from filing more charges.
Both the lawsuit and Chung’s past published comments contend that on his first day back to work after the newspaper submission ran, he was notified in a courtroom that he had been reassigned from the violent felonies unit to mental-health court. About a day later, he was moved to juvenile court. In the lawsuit, the reassignment was implied to be a demotion.
Since the publication of his initial opinion piece, Chung has become outspoken about his experiences, first raising the claim of retaliation in a San Jose Inside piece in April, then recounting in a San Jose Spotlight submission in July how he rejected a severance offer that he characterized as an attempt to “push me out of the office quietly.”
Chung has also previously recounted an internal disciplinary hearing over his official title — deputy district attorney — appearing at the end of the February opinion piece, though he has since clarified that he was writing in a personal capacity.
To McManis, that makes no difference. He argues that while Rosen had the right to discipline his management staff over any public statements they make, he has no such latitude over a line-level employee.
“Some guy like Chung, who is a deputy DA and speaks out on a matter of public concern, you can’t restrict that at all,” McManis said. “I’m very confident we’re on solid ground there.”
