The Police Department is back in court again, being sued along with the city and others for $75 million by a black former officer who contends that he was racially discriminated against when he was fired in 1982.
But the case has been complicated by federal District Court Judge William D. Keller, who issued a gag order last week that legal experts are calling "rare" and "unheard of."
Not only are gag orders rarely used in California, the experts said, but they are almost never issued in civil cases. When they are, it is at the request of an attorney who is involved in the case.
Keller's gag order, which bars the lawyers from speaking with the press, was issued "on his own initiative," said Paul Hoffman, legal director of the American Civil Liberties Union, which is challenging the order in the 9th Circuit Court of Appeals on behalf of former officer Lucky K. Lucky.
"I think this is highly unusual," Hoffman said. "From what I understand, he (Keller) just believes that lawyers should not speak with the press during jury trials. He did this of his own volition and was not asked to do it by either of the parties (in the case)."
Keller refused to comment on the gag order, which he originally issued as a spoken admonishment in his chambers when the case began on Feb. 5. He warned the attorneys involved that if they talked about the case they would be cited for contempt, said Stephen Yagman, Lucky's lawyer.
Last Thursday, the ACLU asked the 9th Circuit Court of Appeals to have the spoken gag order overturned. But later that day, Keller repealed the spoken order and filed a lengthy, written order, elaborating on his reasons for the restriction.
The ACLU was expected to file an appeal of the written order late Wednesday.
In the order, Keller wrote that "public statements by attorneys in this case could pose a serious and imminent threat of interfering with a fair trial."
According to court records, on Nov. 23, 1982, Lucky and Charles Abney, a white Signal Hill police officer, got into a fight when they were off duty. Abney allegedly made disparaging racial remarks about Lucky and other blacks, the suit charges.
As a result of the fight, Lucky was placed on administrative leave. After an internal affairs investigation, Lucky was fired. Abney was not fired, but he later left the department to work for the San Bernardino County Sheriff's Department.
The suit charges that Lucky's firing was "racially motivated" and has caused him to suffer emotional and economic injuries. In addition to court costs and attorney's fees, Lucky is asking for $15 million in actual and punitive damages from each of five defendants: the city, Police Chief Michael McCrary, Sgt. James Butzbach, then-City Manager David Caretto and Abney.
The gag order lists the following reasons for restricting contact with the press by the lawyers: that Signal Hill has a history of notorious police problems, which culminated in the 1981 jailhouse death of black football star Ron Settles; that Lucky's case alleges he was fired because he was black, and that racial slurs allegedly were uttered during a racially motivated fight.
The final reason for the gag is that "this case is . . . a potential subject of substantial local interest," the order says.
"One of the things we're complaining about is that this is a pretty extreme measure," Hoffman said. "It is a normal practice for attorneys to comment on pending cases. This is valuable in giving the public a better understanding about what goes on in the courtroom."
Hoffman said gag orders should be a last resort and should be issued only when there are "very, very strong reasons" and a hearing to decide if the action is necessary.
"He (Keller) based it all on his own volition," Hoffman said. "It (a gag order) should not be issued on the whim of a judge."
Keller, 50, was appointed district judge by President Reagan four months ago. He was appointed U.S. Atty. for the Central District of California by President Richard M. Nixon and served from 1972 to 1977. From 1981 until becoming district judge, Keller practiced law with the firm of Hahn & Cazier.
Charles Firestone, director of the UCLA communications law program, said that "it is rare" for a gag order to be issued in a civil case, although he has no statistics to back up his contention.
"It is generally a rare thing," Firestone said. "Obviously you don't want to have too much of this, because the public generally has a very strong interest in learning whatever it can. The press is the public's ears and eyes."
Few Orders Filed
Retired San Mateo Superior Court Judge Melvin Cohn said that in the past 10 years or so "almost no gag orders" have been filed in California because local bench-bar-media committees have worked to mediate between the courts and the press.
Cohn was head of the California State Bar's fair trial-free press committee until it stopped operating last fall, and he has chaired the San Mateo County bench-bar-media committee for the past 13 years.
"We've come to the conclusion that you don't issue these things unless it's an absolute necessity in protecting someone's Sixth Amendment (fair trial) rights," Cohn said. "It just doesn't happen. What we've found is that we (the judicial system) lean over backward to satisfy the press, and they lean over backward not to screw up our cases."
Terry Francke, legal counsel for the California Newspaper Publishers Assn., said that gag orders are usually only filed in criminal cases when a person's life or freedom is in jeopardy.
"Even in the criminal context, where a person's right to freedom and sometimes life is at stake, courts are not readily prone to issue a gag order until they see some evidence of a situation running out of control," Francke said.
Appeal Declared Moot
"I don't believe I've ever heard of it (a gag order) happening in a civil case," he said. "They are quite rare anymore in California and, as far as I can think, unheard of in a civil context."
The ACLU asked to have the spoken order repealed and did not file a new petition to challenge Keller's written order. As a result, a panel of three U.S. circuit judges decided that the ACLU appeal was moot, because Keller had already repealed the spoken order himself.