There is sufficient evidence to charge Los Angeles Police Deputy Chief David Kalish with molesting two teenage police Explorer Scouts more than 20 years ago, but legal deadlines for prosecution have passed, according to Dist. Atty. Steve Cooley's office.
Prosecutors have rejected a request by internal affairs investigators to file criminal charges against Kalish, the highest-ranking openly gay LAPD officer and a candidate for chief last year.
Kalish, who was placed on paid leave in March as the investigation opened, could not be reached for comment. His lawyer did not return calls.
Prosecution is "precluded," by a U.S. Supreme Court decision last summer that struck down California's attempt to bring to justice older cases of sexual molestation, according to a memo by William Hodgman, head of Cooley's sex crimes unit.
That court decision forced Cooley to drop 11 ongoing prosecutions of priests charged with molesting youths, as well as abort inquiries into dozens more.
"It's a travesty that Kalish was able to evade the law on a technicality," said Oakland attorney Todd A. Walburg, who represents two of the men who have filed claims alleging they were molested by Kalish.
"Now, while Kalish lives his life as a free man, he has left several victims behind who are in constant pain from molestations that occurred when they were teenagers," Walburg said.
The three-page memo gave brief descriptions of incidents without providing detailed accounts of witness statements, corroborating evidence or potential problems with the case beyond the Supreme Court case.
In one incident, there was sufficient evidence that Kalish engaged in oral copulation and masturbation with an Explorer Scout in the LAPD Devonshire Division Explorer program when the victim was ages 15 to 17, prosecutors wrote.
Kalish also was accused of committing sexual acts on a second Explorer from 1977 to 1979. A third person accused Kalish of molestation in 1976 and 1977.
Sex crimes prosecutors said they reached their decision based on reports and witness statements submitted by the Internal Affairs Group of the Los Angeles Police Department, and testimony before a Los Angeles County Grand Jury between April and June.
Walburg expressed disappointment that the criminal case was upended by the Supreme Court decision, but said at least the public could see there was enough evidence to warrant felony prosecution.
The first lawsuit -- filed April 7 against the city, the Police Department and Kalish -- alleged sexual abuse, negligence, sexual battery and intentional infliction of emotional distress. The man accused Kalish of "sexually fondling him, molesting him and forcing, coercing" him from 1974 through 1979, according to the lawsuit.
The victim, now 42, alleged that Kalish began "exploiting" him when he was 14. The suit alleges that the incidents took place while Kalish "was in his police uniform, carrying a gun, in his police vehicle and on duty."
A second victim sued the city and Kalish in July. The man who filed the complaint, identified only as John Doe, alleged that the deputy chief "sexually molested, harassed, assaulted, fondled and coerced" him between 1974 and 1979.
The man said he suffered "severe emotional distress" after the city failed to supervise Kalish adequately. He claimed that the city should have taken reasonable steps to protect him while he was an Explorer Scout.
Criminal charges based on 2-decade-old conduct normally had been barred. But in the mid-1990s, the state Legislature extended the statute of limitations in cases of serious sexual misconduct in which there was corroborating evidence.
The extension of the deadline on sex crimes allowed prosecutors to pursue cases against hundreds of alleged molesters from Roman Catholic priests to teachers and parents.
But the U.S. Supreme Court in June struck down the California law that allowed prosecutors to file new charges based on old incidents of suspected abuse.
All the allegations made against Kalish involve incidents prior to 1988, the year prosecutors say was the cutoff date for prosecutions under the Supreme Court ruling, prosecutors said.
Mary Grady, Police Department spokeswoman, said there is an ongoing investigation of Kalish, and declined to comment further.
A five-month LAPD investigation clearly indicated "that the department believes there is substance to those charges," Chief William J. Bratton said in March.
Sources familiar with the internal affairs probe say the department sought to call Kalish for questioning earlier this year, but his attorney submitted a physician's note saying he was too stressed to be subjected to such a process.
According to LAPD records reviewed by The Times, Kalish was suspended for four days in the 1970s for having an open container of alcohol in his hand while with Explorer Scouts. At the time, he was assigned to the Devonshire Division as the Explorer supervisor.
It was not the first time prosecutors have reviewed allegations against Kalish. In 1996, an LAPD police sergeant made a series of allegations against Kalish after he was accused of falsifying overtime. The sergeant accused Kalish of falsely reporting police badges as missing, taking gifts from an informant, and drinking and driving, according to court documents.
The district attorney rejected the allegations after an LAPD internal affairs probe in 1997, citing insufficient evidence.