Panel’s Criticism of LAPD Ruled Admissible : Courts: At issue is Christopher Commission finding of deliberate indifference to brutality complaints. Appeals judges say report may be used in lawsuit that alleges excessive force by officers.

A federal appeals court in San Francisco ruled Monday that a finding by the Christopher Commission that the Los Angeles Police Department responded with deliberate indifference to brutality complaints can be used as evidence in trials.

The ruling, which legal experts say will strengthen the cases of plaintiffs in excessive force trials against the LAPD, stems from a lawsuit in which U.S. District Judge A. Andrew Hauk called the report issued in 1991 by the Christopher Commission “untrustworthy” and therefore inadmissible as evidence.

At least five other federal trial judges in Los Angeles have admitted sections of the report in police brutality cases in the past year.

This was the first appellate ruling on the issue. Although a three-judge panel said there are still questions on the appropriate courtroom use of the report, it commented that the starting point should be that the report is trustworthy and that it is up to lawyers for the Police Department to prove otherwise.

“This ruling on the Christopher Commission report is of far-flung import because there are so many cases in which it can be used,” said Pasadena attorney John C. Burton, who represented Michael A. Montiel, the plaintiff in the case.

The decision also was praised by Venice civil rights lawyer Stephen Yagman, who has used parts of the Christopher Commission report in several cases. “I always have thought it was absurd for the city attorney to argue that a report commissioned by the city government was untrustworthy.”

Thomas Hokinson, who heads the city attorney’s liability section, was disturbed by the decision but agreed that it is significant. “It will make it make more difficult to challenge the admissibility of the report since it is presumed to be trustworthy,” Hokinson said, adding that he may ask the U.S. Supreme Court to review the issue.

The case in question involved a 1988 altercation at a gas station in Eagle Rock. Police apparently mistook Montiel, then 19, as involved in an alleged robbery, despite his telling officers that he was the one who called in a crime report. While Montiel was prone on the ground, Officer Charles L. Scott slammed Montiel’s face to the pavement, shattering an incisor and resulting in painful dental treatments that left him with a false tooth, according to court documents.

The police charged Montiel with resisting arrest, but that charge was dropped. On Monday, the appeals court ruled that Montiel, a Latino, be given a second trial in his brutality case against Scott, four other officers, the LAPD and the city of Los Angeles because Hauk did not require attorneys for the city to explain why they had used a peremptory challenge--which requires no explanation--to keep a black man off the jury.

With this action, the appeals court ruled, Hauk showed “clear disregard for even the most basic . . . safeguards” required by a 1986 Supreme Court decision designed to eliminate the injection of racial bias in jury selection.

The appeals court also said that the reasons offered by the city attorney’s office for keeping three Latinos off the jury appeared to be “suspect . . . particularly because all jurors with Spanish surnames were peremptorily struck from the panel.”

And in a highly unusual move, the appellate judges ruled that the case must be retried before another judge because of comments made by Hauk during the trial.

“An entire reading of the record does leave us with the distinct belief that Judge Hauk’s remarks exhibit a pro-police bias with regard to claims of police brutality against the LAPD,” the 9th Circuit decision states.

The decision was written by 8th Circuit Judge Myron H. Bright of St. Louis, temporarily sitting as a 9th Circuit judge. His ruling was joined by 9th Circuit Judges James R. Browning and Thomas Tang.

During the trial, Hauk said that 97% of excessive force complaints against the LAPD “are either false, ridiculous . . . (or) found out to be totally spurious.”

At another point, Hauk said: “Any kook can go and complain to the police about anything.”

Hauk, 80, also suggested that lawyer Warren Christopher, who chaired the commission, was not responsible for its finding that the low percentage of citizen complaints acted upon by the Police Department was a sign of deliberate indifference to brutality complaints.

“You know who wrote that, some of the ACLU boys and--who are the others--NAACP that were on staff,” Hauk said. “Staff wrote it. Christopher didn’t write it. Come on. You can’t fool me.”

In fact, no one from either the American Civil Liberties Union or the National Assn. for the Advancement of Colored People served on the Christopher Commission.

After the June, 1988, incident, Montiel filed a complaint with the city, but the Police Department exonerated all the officers. Burton said he tried to get the Christopher Commission report admitted as part of his effort to prove “the city’s deliberate indifference toward the use of excessive force and the causal connection of this policy to his injury.”

The city attorney’s office objected to introduction of the report as hearsay and contended that certain of its conclusions were unreliable because some members of the Christopher Commission were not experts on police tactics. Burton countered that there is a specific exception to federal court hearsay rules, and it mandates the admission of “public records and reports” such as the Christopher Commission report.

But Hauk said the report was untrustworthy and would not admit it unless Christopher testified. Christopher moved to quash the subpoena, contending that the report spoke for itself, and Hauk granted that motion. “That left us in Catch 22 position, with nowhere to go,” Burton said.

At the conclusion of the trial, the judge dismissed charges against one officer. Monday’s decision left that ruling intact. But Monday’s decision means that Montiel will get a new trial against the other four officers, including the one who kicked him, the Police Department and the city.