Friday, March 9, 2018
Page 1
Court of Appeal:
Restraining Order Against Lawyer Nearing City Council President Wesson Is Valid
By a MetNews Staff Writer
The Court of Appeal for this district has upheld a workplace-violence restraining order limiting contact by an attorney with Los Angeles City Council President Herb Wesson based on presenting a speaker card at a committee session with racist scribblings on the front, implying a threat of violence to the city legislator, and a profane slur on the reverse side.
The three-year stay-away order imposed on Encino lawyer Wayne Spindler was also based on his later disrupting the meeting, after he addressed the committee, by shouting in protest when Wesson, an African American, recited what appeared on the speaker card and labeled him an “idiot.”
|
|
|
Above is speaker card submitted by attorney Wayne Spindler at a hearing of the Los Angeles City Council Inter-Governmental Relations and Neighborhoods Committee on May 11, 2016. |
Div. Three, in an unpublished opinion by Presiding Justice Lee Edmon, filed Wednesday, rejected the contentions by Spindler that the order is unsupported by substantial evidence, unlawfully abridges his right to free speech, and is invalid because it was sought in the name of the City Attorney’s Office rather than the city.
The decision affirms the order by Los Angeles Superior Court Judge Carol Boas Goodson, except to the extent that it directs the trial court to change the name of the plaintiff to “City of Los Angeles.”
Under that order, Spindler must not come within 10 yards of Wesson during City Council meetings, and must stay 100 yards away from his field office or his home, and may not be more than two yards from his office at City Hall. However, it provides that Spindler may “engage in public comment and attend City public meetings.”
Wesson said in a declaration that Spindler had placed him in fear for the safety of himself and his family.
Reasonable Fear
Spindler asserted in the appellate court that his drawings on the speaker card would not put a reasonable person in fear of violence. Wednesday’s opinion rejects the contention.
Edmon recited that the card “contained three images: (1) a hooded figure holding a noose and a sign reading ‘Herb = Nigger’; (2) a burning cross; and (3) a human figure hanging from a tree,” as well as vulgar message to Wesson on the back. She wrote:
“All three images could reasonably be understood as evoking the Ku Klux Klan, which the United States Supreme Court has described as employing violent tactics, including lynchings, to discourage African-Americans from participating in the political process….The image of the burning cross is particularly threatening.”
Supreme Court Opinion
The presiding justice quoted the United States Supreme Court’s 2003 decision in Virginia v. Black as saying:
“[W]hen a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical. The person who burns a cross directed at a particular person often is making a serious threat.”
Edmon commented:
“Thus, Spindler’s Klan imagery, particularly when directed at an African-American political leader, could reasonably be understood as a threat of violence against that individual.”
‘Legitimate Purpose’ Claimed
Spindler argued that the submission of the speaker card served a legitimate purpose. Edmon responded:
“…Spindler confounds the purposes of the speaker card and the racist imagery on it. While submission of the speaker card undoubtedly served a legitimate purpose, the trial court was well within its discretion in concluding that the inclusion of Klan imagery on the card did not.”
Edmon saw no merit in the lawyer’s First Amendment argument, citing authority that freedom of speech does not extend to the utterance of credible threats of violence. Having found that substantial evidence supports Goodson’s finding that such a threat was made, she said, “Spindler’s free speech claim is without merit.”
Incorrect Plaintiff
Edmon agreed with Spindler that the City Attorney’s Office erred in bringing the action in its own name in an action under Code of Civil Procedure §527.8, which authorizes an employer to protection of its employees. Wesson works not for the office of City Attorney Mike Feuer, but for the city, she said.
But that has no legal effect, the jurist declared.
She pointed to a case decided by the division in 2013, People ex rel. Harris v. Rizzo, involving the scandal over corruption in the City of Bell. Los Angeles Superior Court Judge Ralph Dau (since deceased) sustained demurrers without leave to amend because the action challenging excessive salaries to city officials was brought in the name of the Office of Attorney General rather than by the “People of the State of California.”
Justice H. Walter Croskey (also now deceased) reasoned:
“It is apparent...that despite the caption of the action, the Attorney General brought the action on behalf of the City. When an action is brought in the name of the wrong party, leave to amend should be granted to substitute the real party in interest….As the Attorney General clearly brought this action on behalf of the City, an amendment to change the name of the plaintiff should be permitted.”
Edmon said the present situation is analogous; the City Attorney’s Office, though erroneously named as plaintiff, was bringing the action on behalf of a city, and a mere correction of the caption was the only remedy needed.
The case is Office of the City Attorney v. Spindler, B276413.
Federal Action
Spindler on Jan. 11, 2017, brought an action against the city, Wesson, and others in the United States District Court for the Central District of California in January, 2017, for alleged civil rights violations in connection with the 2016 City Hall incident and his arrest two days later for disturbing the peace. (The District Attorney’s Office opted not to prosecute.)
While dismissing most of Spindler’s claims, District Judge Josephine L. Staton last Nov. 20 declared that “the Complaint suffices to allege facts that could support a conclusion that the speaker card Plaintiff submitted was protected by the First Amendment.”
Viewing the matter differently from the way Edmon and her colleagues did in Wednesday’s opinion, she said:
“Construed liberally, the Complaint alleges that: (1) Defendant Wesson previously had been called ‘Nigger’ many times by both black and white people; (2) Plaintiff submitted the speaker card in the relatively formal setting of a City Council meeting; (3) Plaintiff was known to be a frequent attendee and commenter at City Council meetings (see Exhibit H to Complaint); (4) Defendant Wesson became angry at Plaintiff, called Plaintiff an ‘idiot’ and threatened to beat Plaintiff up; (5) Plaintiff was not arrested until two days later; and (6) the District Attorney declined to prosecute Plaintiff for allegedly making criminal threats. These factual allegations, accepted as true for purposes of the Motion to Dismiss, could lead a reasonable person to conclude that the speaker card did not communicate a ‘serious expression of intent to harm or assault.’ ”
Spindler was given 30 days “within which to file a First Amended Complaint.” It was filed Dec. 12 and a motion to dismiss is pending.
Spindler’s Plea
On July 7 of last year, Spindler pled no contest to disturbing the peace, in connection with an incident unrelated to the one that led to the restraining order. He did so pursuant to a plea bargain that included the City Attorney’s Office dropping a charge involving unlawful possession of firearms, including an assault rifle.
He was sentenced to one day in jail, but credited with a day of incarceration based on the eight hours he was in custody when he was arrested May 13, 2016. A $200 fine was imposed and waived.
After the accord was announced, a City Attorney’s Office spokesperson confessed that it had determined that the possession of firearms charges would probably have failed.
Copyright 2018, Metropolitan News Company