Lavine v. Superior Court

KATZ, J. pro tem.

*

Petitioners seek writs of prohibition to restrain respondent court from taking further proceedings in the prosecution of petitioners on a murder charge on the ground that the indictment was found without reasonable or probable cause.

The transcript of the proceedings before the grand jury discloses that Donald E. Ludlow, a deputy sheriff, died on August 13, 1965, as a result of a shotgun wound. The fatal shot was fired accidentally by another deputy sheriff, William Buford Lauer, Jr., under circumstances hereafter recounted.

On August 12, the day preceding the shooting, Lauer had been on duty in the area referred to as the riot area which was bounded roughly on the north by Slauson Avenue, on the south by Roseerans, on the east by Alameda, and on the west by Broadway. There were numerous acts of looting and fires of apparent incendiary origin in that area. Shots had been fired at police cars and bricks, bottles and other objects had been thrown at such cars, including the one in which Lauer was riding. Because of the extent of the violence, officers had been ordered to stay away from the housing project located near Imperial and Success.

On August 13, Lauer was again advised to stay away from the housing project and was instructed that civilians were to be kept out of that vicinity and that vehicular traffic was to be kept out or moving. Between 6 :15 p.m. and 9 p.m., he pa

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trolled the riot area in a radio ear. He observed a crowd of 200 to 300 people in the vicinity of Imperial and Success and saw some of them throw rocks and “molotov cocktails” at passing cars. There were six overturned vehicles on Imperial and some of them were burning. Several liquor stores in the vicinity had windows broken out and had been stripped of merchandise. One liquor store and a food store were on fire. Lauer saw firemen attempting to put out fires but being forced to retreat when bricks and bottles were thrown and occasional shots fired at them. Numerous shots were fired by snipers in the area. Lauer also heard reports over the radio of burglaries, arsons, felonious assaults, including such assaults on law enforcement officers, and resistance to officers.

At about 9 p.m., Lauer was ordered to go to the southeast corner of Imperial and Wilmington to assist other officers with regard to a fire in a liquor store. On arrival at that location, he saw a small crowd on the west side of Wilmington north of Imperial. The street lights were all broken but the area was illuminated by the fire in the liquor store. Lauer attempted to clear the intersection of all vehicular traffic by advising motorists to leave the area. He observed a vehicle which had been westbound on Imperial stopped in the left lane about 50 feet from the intersection. There were three occupants in the vehicle who were talking amongst themselves. The three occupants were Negroes, later identified as Philip Brooks, who occupied the driver’s seat, petitioner Joseph Lavine, who was seated on the passenger side in front, and petitioner Harold Potts, who occupied the right rear seat. Prom a distance of 20 to 30 feet, Lauer ordered the vehicle to leave the area. Although he didn’t hear the occupants say anything, he saw that they were speaking and the vehicle did not move. Lauer repeated his order to get the car out of the area by shouting, “Get the hell out of there.’’ He received no reply and the vehicle did not move. Lauer, who was dressed in full uniform, approached the driver’s side of the vehicle at a slow walk. He held a shotgun in his hands with his finger on the trigger. He first stated that the gun was pointed “approximately parallel with the ground westbound on Imperial,” but later indicated he held it at port arms, that is, approximately diagonally from shoulder down to the hip with muzzle pointed up. When he arrived at the vehicle, Lauer heard the occupants talking but couldn’t make out what they were saying except for the opprobrious phrase “white -.” He first testified that he could not describe