Judge dismisses lawsuit against ousted DA Boudin

A federal judge on Thursday dismissed a lawsuit against former District Attorney Chesa Boudin that helped spur his recall from office, saying there was insufficient evidence.

Thomas Ostly, a former assistant district attorney fired by Boudin in his first week in office in 2020, filed a lawsuit in 2021 against Boudin and the city, alleging Boudin retaliated and discriminated against him. He said that he was wrongfully fired and that the experience caused him emotional distress. 

US District Judge Edward Chen ruled on Thursday that Ostly had presented “no evidence beyond the most conclusory and tenuous allegations.” The plaintiff, he ruled, had failed to prove that any retaliation or discrimination had occurred. 

Boudin fired Ostly along with multiple other employees when he took office in January, 2020. The firings became one of the factors that enabled the June 2022 recall, fueled primarily by spurious allegations that Boudin was soft on crime. 

Ostly’s lawsuit said the alleged retaliation stemmed in part from his attempts to expose malpractice by the Public Defender’s Office, and claimed that Boudin — a former public defender — wanted to quash any investigation into the matter. He also claimed that a state bar complaint made against him by a public defender was retaliatory. 

Chen, however, decided that Ostly, in contacting the press about alleged public defender misconduct, did not appear inclined to expose systemic malpractice, but instead was only concerned with his personal cases. 

This did not count as “protected speech,” Chen ruled, nor did any of the other statements Ostly claimed he suffered retaliation for. In fact, Chen continued, there was no proof that Boudin ever “knew about … [Ostly’s] allegedly protected speech, let alone retaliated against it.” 

Lawsuits and criticism from former employees were among the allegations that culminated in Boudin’s removal from office a year ago, Among those outspoken former employees, was Brooke Jenkins, who later became the district attorney. Other lawsuits remain pending. 

“Justice at last!” said Boudin in a text on Thursday in response to the decision. “We all knew the allegations were frivolous from the beginning. Now that the court finally did a thorough review it shot down every single one of [Ostly’s] claims for lack of evidence.”

Boudin, nearly a year since his recall, recently announced a new job as head of a new Criminal Law & Justice Center at UC Berkeley. 

Chen’s 27-page order on Thursday bordered on cheeky, noting in a footnote on page 16 that Ostly’s “lack of relevant supporting evidence has become this order’s leitmotif.” On another page discussing Ostly’s claim that he was discriminated against for his age, Chen said there was not “a scintilla of evidence” to support the claim. 

Ostly said that a 2022 tweet from another employee calling him a “50 year old man acting like a clown” pointed to age discrimination being a factor in his 2020 firing. But Chen disagreed: The tweet, he said, criticized Ostly for not acting his age — and was not posted by Boudin. 

Ostly often took to Twitter in 2022 to amplify the recall effort, as did a group of fellow attorneys opposed to Boudin’s policies. He has not yet responded to a request for comment. 

Another former district attorney also sued Boudin in November, 2021, claiming he was fired after attempting to expose alleged misconduct at the office in prosecuting police shootings. 

On the eve of the first-ever police beating trial in San Francisco, investigator Magen Hayashi testifed under oath in January, 2022 that she was pressured by the DA’s office to withhold information during an investigation of SFPD Officer Terrance Stangel.

In September, 2022, after Boudin was recalled, Hayashi sued Boudin and other attorneys for defamation and violating labor code, and the case remains pending.