In Re Recalcitrant Witness Richard Boeh, Julia Gomez v. Daryl Gates, and United States of America

Opinion by Judge CANBY; Dissent by Judge NORRIS

The United States and Richard Boeh, 1 an agent of the Federal Bureau of Investigation, appealed from the district court’s denial of a motion to quash a subpoena ad testificandum and two civil contempt orders issued in response to Boeh’s refusal to testify in a civil trial. The appeal was expedited pursuant to 28 U.S.C. § 1826 (b). On February 18, 1992, we entered a brief order reversing all three orders of the district court, with Judge Norris indicating his dissent. Our order stated that opinions would follow; we now deliver them.

*763 BACKGROUND

The underlying litigation arises out of an incident in which members of the Los Ange-les Police Department shot four suspects, killing three of them and critically wounding the fourth, immediately after a robbery of a fast food restaurant in Sunland, California. The surviving suspect and relatives of the deceased suspects brought a civil rights action in federal court against the police officers, Chief Daryl Gates, the City of Los Angeles, and various other officials, alleging the use of excessive force.

Shortly after the trial commenced, plaintiffs caused a subpoena to be served on…

dissenting:

This case presents the question whether an employee of a federal agency may lawfully refuse to obey a subpoena ad testificandum in reliance upon an agency regulation promulgated pursuant to the federal housekeeping statute, 5 U.S.C. § 301 .

I

The plaintiffs in this civil rights action allege that officers of the Los Angeles Police Department used excessive force in fatally shooting three suspects and wounding a fourth following a robbery of a fast food restaurant. On the first day of trial, plaintiffs subpoenaed FBI agent Richard Boeh as a witness. The government moved to quash the subpoena primarily on the ground that Agent Boeh had not been authorized to testify as required by the Department of Justice’s housekeeping regulation. Before ruling on the motion to quash, the district court ordered Boeh to appear in camera and answer questions that would enable the court to decide whether Agent Boeh should be required to testify, and if so, to what extent. When Boeh refused to answer any questions, the court denied the motion to quash and ordered Boeh to testify in open court. When Boeh again refused, the district court held him in contempt both for refusing to answer…

25 F.3d 761 62 USLW 2752 In re Recalcitrant Witness Richard BOEH, Julia GOMEZ, et al., Plaintiffs-Appellees, v. Daryl GATES, et al., Defendants, and United States of America, Respondent-Appellant. No. 92-55096. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1992. * Decided May 27, 1994. Steven E. Zipperstein, Sean R. Berry and Mark D. Larsen, Asst. U.S. Attys., Los Angeles, CA, for respondent-appellant. Stephen Yagman, Marion R. Yagman, Yagman & Yagman, P.C., Venice, CA, for plaintiffs-appellees. Appeal from the United States District Court for the Central District of California. Before: CANBY, NORRIS and LEAVY, Circuit Judges. Opinion by Judge CANBY; Dissent by Judge NORRIS CANBY, Circuit Judge: 1 The United States and Richard Boeh, 1 an agent of the Federal Bureau of Investigation, appealed from the district court's denial of a motion to quash a subpoena ad testificandum and two civil contempt orders issued in response to Boeh's refusal to testify in a civil trial. The appeal was expedited pursuant to 28 U.S.C. Sec. 1826 (b). On February 18, 1992, we entered a brief order reversing all three orders of the district court, with Judge Norris…