Cross Burning Is Ruled Odious but Not Illegal

A judge Friday reluctantly dismissed felony charges against five white supremacists who burned crosses in a predominantly black and Latino area of the San Fernando Valley in 1983, calling the ceremony “a despicable display of bigotry” but legal.

Los Angeles Superior Court Judge Judith C. Chirlin ruled that there was insufficient evidence to sustain a felony charge that the defendants conspired to violate a law against burning waste materials without a permit.

She also found that there was insufficient evidence to sustain a misdemeanor charge accusing the five of actually burning waste materials without a permit.

The judge let stand a misdemeanor charge of unlawful assembly against the five, and a felony charge of unlawful possession of a billy club against Stanley C. Witek. The group includes Thomas Metzger, a former California grand dragon of the Ku Klux Klan, who ran as a Democratic candidate for a San Diego County congressional seat in 1980 and lost. Witek is the founder of the National Socialist Aryan Workers Party, a neo-Nazi group.

The other three are Irving Alcorn, Winston Burbage and Erich Schmidt.

At Home of Supporter

They were charged with illegally burning three 20-foot-high crosses outside the home of a supporter, in Kagel Canyon above Lake View Terrace, in December, 1983.

“The conduct underlying the charges is despicable,” the judge said.

“All fair-minded and right-thinking people are offended and horrified by this type of behavior,” she said, but “a judge is not entitled to rule based upon moral outrage or displeasure. . . . Judges must set aside their personal feelings of outrage, horror and chagrin and rule according to the law.”

Chirlin said her ruling reflects a “complete failure of our laws to make this outrageous behavior criminal.”

The judge ruled that the city fire code under which they were charged, prohibiting the burning of waste, did not apply to the burlap-wrapped, gasoline-soaked crosses used in the nighttime ceremony.

“On the contrary, the material burned was constructed in a specific shape and for the specific purpose of igniting it,” she said. “Further, the burning was not for the purpose of disposal, but for the purpose of display.

“The defendants are not charged with bigotry. . . . They are charged with conspiracy to burn waste material without a permit. The obvious intent of the statute is to regulate refuse, not racism.”

Defense attorneys have argued that the burning of the crosses was part of a private gathering in honor of a white Los Angeles police officer slain by a black man.

The prosecutor, Deputy Dist. Atty. Dale A. Davidson, called the decision “ridiculous” and said he may appeal.

“It simply amounts to another delay in a case we’ve been trying to get to trial for four years,” he said.

Thirteen men were originally arrested, including the resident of the house and Richard Butler of Hayden Lake, Ida., the national leader of the Aryan Nations. Butler faces separate misdemeanor charges.

Charges Dismissed

Charges against them were dismissed in 1984 by a municipal judge who ruled that the district attorney’s office had not properly drafted the complaint. A state appellate court reinstated the charges in 1986.

Charges were later dismissed against four men who had already been sentenced for more serious crimes related to white supremacist activities.

These included two members of The Order, a violent racist group, who were convicted of conspiracy in the murder of Denver talk show host Alan Berg, and David Tate, serving a life sentence for killing a Missouri state trooper.

Prosecutors said that, since they were already serving terms ranging from seven years to life, there was no point in pursuing the cross-burning charges.

The defendants argued that they are being persecuted because of their political beliefs.

Witek’s attorney, Richard Burda, said that, if the case ever goes to trial, he will fight it on constitutional grounds of free speech.

Another hearing on the misdemeanor charges was scheduled for Tuesday in Municipal Court. Witek faces a Superior Court hearing March 7 on the billy-club charge.