Los Angeles Police Protective League v. Gates

• Decision Date: 17 January 1984
• Docket Number: No. CV 82-3392 RG (MCx).,CV 82-3392 RG (MCx).
• Citation: 579 F. Supp. 36
• Parties: LOS ANGELES POLICE PROTECTIVE LEAGUE, a California corporation, et al., Plaintiffs, v. Darryl F. GATES, individually and as Chief of Police of the City of Los Angeles, et al., Defendants.
• Court: U.S. District Court — Central District of California

579 F. Supp. 36

LOS ANGELES POLICE PROTECTIVE LEAGUE, a California corporation, et al., Plaintiffs, v. Darryl F. GATES, individually and as Chief of Police of the City of Los Angeles, et al., Defendants.

No. CV 82-3392 RG (MCx).

United States District Court, C.D. California.

January 17, 1984.

COPYRIGHT MATERIAL OMITTED

Gregory G. Petersen & Associates, Santa Ana, Cal., for plaintiffs.

Ira Reiner, City Atty., Frederick N. Merkin, Senior Asst. City Atty., Lewis N. Unger, Deputy City Atty., Los Angeles, Cal., for defendants.

OPINION

GADBOIS, District Judge.

This lawsuit arises out of a 1981-82 investigation by the Los Angeles Police Department, ("LAPD"), into widespread corruption among officers of the Hollywood Division. In late 1981, Internal Affairs Division ("IAD") investigators learned that Hollywood Division officers were committing on-duty burglaries. IAD set up a "sting" operation which resulted in the December 7, 1981 arrest of two LAPD officers — Ronald Venegas and Jack Meyers — as they left the sting site with stolen property.

Several other Hollywood Division officers, including Roger Gibson, reported to the sting site on December 7. IAD questioned and searched those officers immediately after they returned to the station in order to discover whether any of them had stolen chemically-dusted money from the burglarized store. The search produced no evidence of theft by Gibson. Nevertheless, he eventually became a suspect in IAD's investigation into widespread misconduct in the Division.

During that investigation, IAD interviewed Gibson several times. While interviewing him on January 20, 1982, IAD gave him his Miranda rights, and ordered him not to discuss the investigation with other suspects or witnesses in the Division until IAD had completed its investigation. After the interview, investigators searched Gibson's property for evidence of stolen tools and appliances. On April 15, investigators gave Gibson an administrative order to allow the search of his garage and private vehicles for stolen property. Gibson refused, and was charged with insubordination.

Three months after IAD finished its investigation, the Board of Rights held an administrative disciplinary hearing. The Board found Gibson guilty of thirteen charges, including insubordination and lying to investigators about on-duty drinking and sex with prostitutes. Gibson was found not guilty of committing on-duty burglaries. LAPD fired Gibson, but he was never criminally prosecuted.

On January 14, 1983, plaintiffs—Los Angeles Police Protective League ("LAPPL"), Roger Gibson, and Gibson's wife and children —filed an amended complaint seeking relief under 42 U.S.C. § 1983 for violations of plaintiffs' civil rights during the investigation. Defendants have moved for summary judgment on plaintiffs' First, Fourth, Fifth, and Sixth Amendment claims. Plaintiffs' due process and privacy claims, and their pendent state claims, will be addressed later in the litigation.

I. FIRST AMENDMENT CHALLENGE

Plaintiffs challenge the order forbidding Gibson from discussing the investigation with other suspects or witnesses in the Hollywood Division until IAD had completed its investigation. Plaintiffs claim that the order infringed Gibson's right of free speech and was vague and overbroad.

A. Infringement of Gibson's Free Speech

The Supreme Court, in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), established the test for determining whether governmental restrictions on its employees' speech violated the First Amendment.¹

The problem in any case is to arrive at a balance between the interests of the public employee, as a citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.

See also Fracaro v. Priddy, 514 F.Supp. 191, 196 (M.D.N.C.1981) (applying Pickering test to a state's confidentiality order binding its employees).

Gibson's interest in uninhibited speech consisted of discussing the investigation with other Hollywood Division suspects and witnesses during the IAD's investigation, rather than after it. LAPD's interest in temporarily restricting Gibson's contact with other suspects and witnesses consisted of preventing suspected officers from collaborating on their stories, fabricating alibis, and disposing of stolen property.

The balance in this case clearly weighs in favor of the State. The State has a compelling interest in protecting the integrity and efficiency of its police departments. Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1445, 47 L.Ed.2d 708 (1976); Kannisto v. City and County of San Francisco, 541 F.2d 841, 845 (9th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977); Waters v. Chaffin, 684 F.2d 833, 836 (11th Cir.1982). Especially in the face of suspected widespread corruption, the state had an overriding concern with conducting a spotless investigation and quickly restoring the public's faith in its police department.

The order did not prevent Gibson from discussing the case with his representative, present during all interrogations, or his attorney, and the order applied only until IAD completed its investigation. Moreover, the order did not prohibit Gibson from talking with other officers about matters outside the investigation. Gibson had about three months after IAD finished its investigation to discuss the case with other Hollywood Division officers, and prepare his defense.

Plaintiffs complain that two witnesses died before IAD lifted the order, so that Gibson never had the opportunity to interview them. First, even had there been no order, they might have died before Gibson had a chance to interview them. Second, on balance, the State's interest in effectively investigating police corruption outweighed the speculative chance that a witness would die during IAD's eight-month investigation. Third, plaintiffs have not shown how any testimony from the dead witnesses would have materially helped Gibson's defense.

The cases cited by plaintiffs holding that the government may not impose an obligation of secrecy on grand jury witnesses may easily be distinguished. In Re Russo, 53 F.R.D. 564, 569-71 (C.D.Cal.1971), determined whether the government had to provide a witness with a transcript of his grand jury testimony. The court decided the case under F.R.Crim.P. Rule 6(e), not the First Amendment; the issue of freedom of expression did not arise. Moreover, under First Amendment analysis, a grand jury witness does not stand in the same position as a government employee. Pickering left no doubt that the First Amendment allows significantly greater restrictions by the government on its employees' employment-related speech than on the speech of regular citizens. Pickering v. Bd. of Education, 391 U.S. at 568, 88 S.Ct. at 1734. In Re Vescovo Special Grand Jury, 473 F.Supp. 1335, 1336 (C.D.Cal. 1979), may be distinguished on essentially the same grounds as Russo.

Beacon Journal Pub. Co. v. Unger, 532 F.Supp. 55, 59 (N.D.Ohio 1982), determined whether the state could require grand jury witnesses to swear that they would not reveal the substance of their grand jury testimony. The court specifically refrained from considering the First Amendment issue and decided the case on the state's analogue to F.R.Crim.P. Rule 6(e). Moreover, the oath there did not limit the secrecy obligation in terms of time or persons with whom the witness could speak. Id. at 57, 59. Finally, the court specifically recognized that the state could impose a veil of secrecy on grand jury witnesses under proper circumstances on a case-by-case basis. Id. at 59.

B. Vagueness

Plaintiffs' vagueness challenge may be disposed of summarily. First, Gibson said he understood the order at the time he received it. Declaration of Elayne Yochem, July 7, 1982, Exhibit A, pp. 37-38. Second, the order clearly set out the parameters of prohibited discussion. It did not force "men of common intelligence to guess at its meaning." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). It was not unconstitutionally vague.

C. Overbreadth

Plaintiffs' overbreadth challenge is also without merit. The order terminated upon the completion of IAD's investigation. The order only prohibited Gibson from discussing the investigation with those Hollywood Division officers involved in the investigation. It did not prevent him from discussing the case with his representative or his attorney. It did not prevent him from successfully preparing a defense to the battery theft charge against him. Gibson has not shown how a narrower order could have accomplished the State's compelling objective, and he has not shown how the order's alleged overbreadth prejudiced him in defending the charges against him.

Summary judgment is granted against the plaintiffs' First Amendment claims. All requests for declaratory and injunctive relief are denied. The IAD issues the type of order challenged here on a limited, case-by-case basis. See Defendants' Exh. 88, p. 6. Any challenge to future IAD orders must be analyzed under the particular circumstances found there. See Bickel v. Burkhart, 632 F.2d 1251, 1257 (5th Cir. 1980).

II. RIGHT TO COUNSEL

A. Sixth Amendment

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defence." Plaintiffs apparently claim that defendants violated Gibson's Sixth Amendment right to have counsel present during IAD interrogations involving possible criminal activity by the officer.²

First, the Sixth Amendment does not apply because Gibson never faced a "criminal prosecution" or any proceeding threatening his liberty. See Middendorf v. Henry, 425 U.S. 25, 34, 96 S.Ct. 1281, 1287, 47 L.Ed.2d 556 (1976). The right to counsel does not arise...