Vernon Granted Trial on Claim He Is Victim of Religious Bias : Courts: But judge narrows scope of suit prompted by inquiry of assistant police chief’s conduct. Yaroslavsky and Brewer are dismissed as defendants.

A federal judge ruled Monday that Assistant Police Chief Robert Vernon is entitled to a trial on his claim that he was the victim of religious discrimination when the city launched an investigation into whether he improperly injected his fundamentalist Christian beliefs into Los Angeles Police Department business.

However, U.S. District Judge Stephen V. Wilson dismissed much of Vernon’s case and two of the defendants in the suit--Councilman Zev Yaroslavsky, who asked for the inquiry launched June 5, and former Assistant Chief Jesse A. Brewer, who testified about Vernon’s conduct before the special blue-ribbon panel investigating the Police Department.

Wilson said Yaroslavsky had immunity because he acted in his role as a legislator and that he could see no reason why Brewer was named as a defendant.

Vernon, a longtime elder in Grace Community Church in Sun Valley, alleged in a suit filed in November that the investigation had a “chilling effect” on his right to practice his religion. He asserted that he was the victim of a “witch hunt.”

Police Commission members and Yaroslavsky retorted that they were not attempting to infringe on Vernon’s religious views. They said the investigation was in response to complaints that Vernon, a 37-year veteran of the department, had improperly brought religion into the workplace.

Wilson surprised lawyers for both sides with some of his rulings, which focused on the fine points of the Bill of Rights’ provisions on religious freedom.

Vernon’s lawyers had contended that Los Angeles officials violated his 1st Amendment right to freely exercise his religion with the investigation. Lawyers for the city responded in legal briefs that there was no such violation because the investigation dealt only with Vernon’s on-duty conduct and not with his beliefs.

Wilson granted the city’s motion on that point, but ruled that it was possible that the city’s investigation had trampled on a constitutional protection mandating the separation of church and state.

The judge cited a 1971 U.S. Supreme Court case, Lemon vs. Kurtzman, which held that the “establishment clause” of the 1st Amendment can be violated if either the purpose or the effect of the government action serves to encourage or inhibit religious practice.

For Vernon to prevail at trial, he would have to show either that the city’s investigation excessively entangled the government with religion, was launched to infringe on fundamentalist beliefs, or that even if the probe was launched for a proper, secular purpose, its “primary effect” inhibited fundamentalist religious practices.

“It could be argued that (the investigation of) someone as prominent as the plaintiff, given his status in his church and given the nature of the action here, could have a chilling effect on other congregants,” Wilson said.

Nonetheless, the judge said, “it seems to me that (Vernon) has a very difficult burden” of proof. Wilson cited a lack of evidence presented.

The judge chided the lawyers for not dealing with the establishment clause in papers filed and asked for further information.

The judge gave short shrift to the free-exercise issue. “It isn’t adequate for a plaintiff to merely allege that government action effectively chills religious behavior,” Wilson said. The judge did not allow William B. Ball, one of Vernon’s lawyers, to argue on the free-exercise question.

Ball, who has argued eight religious-freedom cases in the Supreme Court, said Wilson’s ruling was, in effect, “the flip side” of the arguments he has raised in the case. “I regard it as a pure free-exercise case . . ., the first of its kind in the country,” he said after the hearing. Vernon’s other lawyer, David Casterline, said he thought Wilson was wrong about the free-exercise issue.

Vernon said he was “disappointed that our case has been chipped away at,” but pleased that “the case is still intact.”

Casterline said he was pleased that Vernon would get a trial and that it is possible for his client to win punitive damages from a jury.

Depositions provided earlier in the case by Police Commissioner Stanley Sheinbaum and former Commissioner Melanie Lomax, describing their reasons for launching the investigation, provided “a road map” of Vernon’s claims, he said.

Skip Miller, a special counsel for the city, disagreed in an interview. He said the depositions showed that the two commissioners had acted properly.

“We’re very confident that we’ll be able to show that there was no violation of the establishment clause,” Miller said.

Andrew White, his co-counsel, said Vernon would have to prove that the city’s investigation “disparaged or chilled a group, a religious thought, a religious practice.” He agreed that the case, as Wilson has framed it, is unique.

White said the suit is the opposite of a traditional establishment-clause case where a government entity is accused of unlawfully promoting religion, such as by erecting a religious symbol in a government building.

“Nothing in the memos requesting the investigation talks about Grace Church or fundamentalism,” Miller said. “The memos talk about Vernon’s on-duty activity.”

Wilson scheduled another hearing for next Monday and said he will attempt to refine the case before a scheduled March 10 trial.

In a brief filed this month, current and former police officials said that Vernon elevated the scores of fundamentalists in promotional exams, attempted to prevent the arrests of anti-abortion protesters and encouraged the wearing of crosses on uniforms. He has denied those charges.