UFW and the ACLU

Join In 1973 To Support Farmworkers

by Daniel C. Lavery

An opening occurred at the dynamic UFW in Los Angeles. Two civil rights attorneys, David Grable and Sandy Nathan, had filed seventeen class actions against opponents of Cesar Chavez’s movement. Consumer class actions against Safeway stores outnumbered all the rest. Ken Doyle acted as investigator. He worked in Father Chris Hartmire’s Migrant Ministry office on Olympic Boulevard, ten minutes from the Superior Court. Jerry Cohen asked me to meet with Sandy, learn about each case, and take them over to release them for other litigation.

I commuted one hundred and twenty miles to Los Angeles every Monday at the crack of dawn and returned to Bakersfield on Friday night. I lived at a farm worker strike house on Hobart Avenue with many UFW volunteers, took my sleeping bag, a suitcase, and two suits for court. Sandy and I appeared in court three times, with me as second. I devoured the files–they were fascinating, cutting edge lawsuits of consumer and civil rights. Slick attorneys from Pillsbury, Madison, and Sutro, and other major management firms in LA opposed us.

The caseload was enormous involving hundreds of pages of pleadings, discovery, motions, research, and investigation reports for complex litigation. I had never been the lead attorney responsible for any class actions. Sandy and Dave left to handle legal battles in Northern California where they both lived. Within two weeks my name appeared as the attorney of record on seventeen class actions! Boxes of litigation in four file cabinets represented attacks on Safeway for alleged meat mislabeling that made sirloin look like filet mignon; Australian beef represented as American; cookies with insects at a Safeway distribution center; overbroad injunctions at Safeway stores severely restricting picking, and many more. These class actions sought punitive and general damages, attorney’s fees, and costs in violation of the Consumer Legal Remedies Act, common law fraud, and the Civil Rights Acts.

Another voluminous class action sued many table grape growers (those that repudiated Cesar Chavez) who harvested them before they were mature in violation of the Agriculture Code and refused to bargain with the UFW Organizing Committee.  We called it the “Sour Grape Case.”

Thousands of pages of interrogatories flooded the growers and Safeway that required them to respond within thirty days. I managed a massive “paper chase” that kept current on consumer law and answered legal challenges as opponents poured them on the fire from demurrers, motions to strike, objections to discovery, and motions for protective orders against discovery abuse. Expected to press each suit until trial or settlement, I rummaged through packages of mail flooding the office with counterclaims, discovery, deposition requests, production of documents requests, requests for admissions of fact, and letters demanding meet and confer sessions at the corporate offices to attempt to resolve discovery disputes.

My calendar was full with appearances in Superior courts all over LA. I could only fit two of the files in my brief case at a time, so I sought continuances or stipulated to extensions to cover each challenge in court.

The ACLU of Southern California announced they were initiating a funded Farmworker project in late 1973. They became interested in assisting the strikers at a time when Teamsters, police, and growers threatened the workers’ civil liberties. Jerry introduced me to Ramona Ripston, the ACLU director, regarding this position. I interviewed with her and a professor of constitutional law at UCLA. The professor asked about my background, knowledge of constitutional issues, and First Amendment picketing and leafleting cases the ACLU had handled in the past. The next day Ramona said, “We have selected you for Director of the project.”

Steve Ross, a volunteer serving probation for a Selective Service Act conviction, took my photograph for the announcement in the ACLU Open Forum newsletter outlining my background and caseload. The UFW picket captains boycotting Gallo, Franzia, and Guild wines seven days a week had my phone numbers to report any conflicts with the police, markets, or liquor stores in Southern California.    Steve said, “You are going to have A.L. Wirin’s office and desk.”

Wirin, General Counsel, Emeritus of the ACLU of Southern California, spent over forty years in defense of the Bill of Rights. He represented Stokely Carmichael and the Ku Klux Klan; and he designed the tax-payer’s suit permitting citizens to sue government officials to block illegal expenditure of tax funds. He successfully challenged California loyalty oaths, the state abortion law, and attacked the evacuation of 115,000 Japanese Americans from the West Coast at the beginning of World War II. I felt I had arrived at one of the pinnacles of civil rights expertise.  I was so motivated, I worked sixteen hour days away from my new family. I had stepped into a dream job. The meetings at the ACLU with attorneys discussing their cases allowed me invaluable experience, since they litigated major challenges to violations of civil rights.

After the UFW grape contracts expired in April 1973, The International Brotherhood of Teamster (IBT) Union met with the growers and claimed to represent the workers. The UFW asserted they had procured fraudulent signatures by the purported workers. The AFL-CIO came out in support of the UFW strike and provided $1.6 million in strike benefits. A turbulent period of labor strife in the fields had just started. The IBT decided to get tough with the UFW and hired longshoreman and motorcycle gang members at fifty dollars a day, plus seventeen dollars in expenses to act as strike-breakers. They went to the Coachella Valley using clubs, chains, assaults, and batteries on the picket line to create an atmosphere of violence and intimidation. The IBT later admitted this stunt cost them three hundred thousand dollars.

On August 13, 1973, violence came to the San Joaquin Valley when a uniformed Bakersfield police officer named Gilbert Cooper killed an Arab farm worker from Yemen, Nagi Moshin Daifullah. Eyewitnesses said Gilbert crushed Nagi’s skull with a flashlight outside a small tavern in the farming community of Lamont. Cooper claimed Nagi’s skull was injured when he fell while running from the deputy and struck his head on a curb. The autopsy confirmed Nagi died from a blow to the head. Cesar held a peaceful march and asked all supporters to pledge themselves to non-violence. Cesar placed the cause of death in the context of the grape strikes in his speech at the funeral:

“The hand that struck Brother Nagi down, trembles in fear. It too, is the victim of the climate of violence, racism, and hatred created by those men who own everything and kill what they cannot own. We are faced with discrimination, exploitation, and even slaughter. The government represses our people, and millions of farm workers are trapped in poverty while the growers lavish in riches…In the struggle to change these evils, Nagi gave his life.”

On August 16, 1973, several miles away on Wheeler Ridge near the Giumarra ranch, sixty-year-old Juan de la Cruz and his wife were sitting with the picketers when a strike leader gunned down Juan. The authorities charged twenty-year-old Bayani Bautista Advicula with shooting a 22-calibre gun into the pickets hitting de la Cruz who died three hours later. De la Cruz was one of the original members of the farm workers union employed on the DiGorgio Ranch. 

The next day, 10,000 farm workers and union supporters, led by many Arabs, carried Nagi’s body in a four-mile funeral march in the summer heat. On August 21, 1973, 5,000 farm workers and union supporters in Arvin went on another funeral march for Juan de la Cruz. Three Bishops came from Fresno, Texas, and Los Angeles to celebrate the mass before the funeral, while Joan Baez sang Woody Guthrie songs and Taj Mahal played African harp.

Cesar Chavez gave the eulogy, “Juan is a martyr in a just cause. We will give purpose and memory to his life by what we do. The more we sacrifice, the harder we work, the more life we give to the spirit of our brother, Juan de la Cruz.”

The farm worker staff provided the details of these deaths to me at the ACLU where I prepared rough drafts of lawsuits based on the facts, and handed them to well-known, supporting personal injury firms to pursue. Meanwhile, their skilled attorneys sent investigators quickly to the scene. At the ACLU the farm worker supporters picketed Safeway stores and various other markets that carried teamster harvested produce. They refused to offer to the public produce from farms who signed contracts with the UFW. In Los Angeles, police and security guards, harassed pickets or supporters, and began arresting them without cause nearly every day.

The ACLU moved to a new, one-story building at 633 Shatto Place in April 1974 where the new building had 3000 more square feet, a large library in the center surrounded by separate offices with secretarial spaces, a conference room,  a print room set aside for copying and pushing paper, and a convenient parking lot. My secretary, brilliant Alice Fuchs, was a word master, dog lover, counselor, and psychologist. She modified a complicated sentence so that it left the punch line at the end but eliminated unneeded frosting. I dictated all my briefs into a recording machine, and she unscrambled the thicket of words. We became a dynamic team that pumped out one brief after another from 8 A.M. until we finished, whenever it happened to be.

In July of 1974, Jerry Cohen handed me a packet of photographs taken of Kern County Sheriffs beating farm workers and supporters picketing Kern County grape growers who signed with the Teamsters. He gave me a declaration under penalty of perjury showing the District Attorney of Kern County, Albert Leddy, passed out form injunctions for growers to file in court with their attorneys violating his required neutrality as a public official. “I want you to file a police misconduct lawsuit naming Albert Leddy as a defendant for his conduct unrelated to his function as a prosecutor, thereby making him liable for damages as a public official.”

“That’s a tough task! Prosecutors claim complete immunity from any liability whatsoever and usually win in court,” I conjectured.

“Not for what he did. Research it thoroughly. You’ll find exceptions so you can plead a valid claim against him he can’t have dismissed without trial. His conduct violates the civil rights statutes and shows a public prosecutor using his office to support the Teamsters in a labor dispute. Our declarations show the Kern County Sheriff selectively acted against the UFW and its supporters. You have the evidence. Prepare a lawsuit challenging all these civil rights violations.”

“I’ll start right away. I never expected to sue a prosecutor and a sheriff!”

“You can do it.”

I prepared a gigantic complaint seeking punitive damages, individual damages, and injunctive relief from continuing harm, attorney’s fees, and costs for specific violations of civil rights.

In August 1974, I filed one of the largest police misconduct lawsuits ever filed in the Eastern District Federal Court in Fresno against the Kern County District Attorney, Al Leddy; the Sheriff, Charles Dodge; the Chief of the Criminal Division; a Lieutenant; four Sergeants; four Investigators, twenty-one Deputies, the Captain in charge of, and the Deputy assigned to the Jail; and a California Highway Patrolman. The complaint alleged that these law enforcement officials had taken sides in a labor–management controversy and engaged in a systematic pattern of violence, intimidation, and harassment resulting in two deaths and numerous serious injuries to members and supporters of the UFW. Sixteen detailed incidents of misconduct describe the time, place, conduct, and names of the defendants.

The attitudes of these officials, which led to such atrocious acts was poignantly revealed in a statement by a Kern County Sheriff, “We protect our farmers here in Kern County. They are our best people. They are always with us. They keep the County going. They put us here and they can put us out again so we serve them. But the Mexicans are trash. They have no standard of living. We herd them like pigs.”

Suing a County Sheriff and District Attorney seemed a daunting task, but the facts were so egregious I found abundant case authority supporting my complaint.  I alleged Kern County Sheriff Charles Dodge directed and personally participated in subjecting plaintiffs to deprivations of their constitutional rights making him personally liable and unable to claim immunity. The complaint alleged Kern County DA, Al Leddy of: A) Prosecuting plaintiffs on fabricated charges. B) Routinely allowing other defendants who were Kern County Sheriff’s employees to obtain criminal charges in bad faith to conceal violent beatings of plaintiffs. C) Using the power of his office to prevent the UFW from pursuing constitutionally protected strike activity in an effort to disrupt their rights. D) Requesting and obtaining hundreds of dismissals of charges against plaintiffs stemming from arrests for violations of private growers’ civil injunctions and refilling civil contempt charge to prevent plaintiffs from obtaining jury trials. E) Taking sides in a labor-management dispute. F) Refusing to investigate and/or file criminal charges against defendants, growers, Teamsters, or their agents who committed crimes. G) Encouraging judges and district attorneys to use standardized “form” injunctions to be signed by law enforcement officers after checking off the appropriate box corresponding to a section of the injunction violated and affidavits in support of an order to show cause re contempt, which his office prepared and which presumed plaintiff’s guilt. H) Encouraging judges, sheriffs, and district attorneys from other counties to place the resources of their offices on the side of agriculture in the labor disputes involving plaintiffs. I) Wedding his office with the Kern County Sheriff’s Department in an effort to crush plaintiff’s strike-related activity. J) Discriminatorily applying numerous sections of the California Penal Code against plaintiffs. K) Conspiring with Kern County Sheriff Charles Dodge and others acting under color of law to deprive plaintiffs of their constitutional rights and to destroy plaintiffs’ collective economic and political strength, and to spend public monies in furtherance thereof. In the Fresno Federal District Court I argued successfully against motions to dismiss the complaint from each defendant based on my seventy-three-page brief.

Despite these actions, the New York Times published the “obituary” of the UFW by their expert journalistic opinion rather than what we, inside Cesar’s dynamic Movement, knew was a steady advance through the Central Valley, the coastal ranches of Monterey County, and down to the dry, fertile Coachella and Imperial farmlands.

Jerry came down to LA a few weeks later with photos of Teamster goons who violently attacked pickets at Coachella and other places to try to disrupt effective boycotts. “Look at these goons attacking the peaceful picket lines. Start a file on a conspiracy by the Teamsters, growers, and their paid thugs to use violence to prevent the UFW from organizing. Research the best remedies available.”

 The UFW provided declarations to prove of a conspiracy between the Teamsters and Coachella Valley grape growers, to use motorcycle gangs, thugs, and Teamster dockworkers that supported a multi-million dollar civil rights lawsuit I filed in the United States District Court in Los Angeles. As a result of my research, I prepared an article published by the University of San Fernando Valley Law Review, “Conspiratorial Violence at Picket Lines: Actionable under Sect. 1985(3) and Sect. 1981.”  It discusses the basis for federal court to restrain conspiratorial violence at picket lines where thugs had assaulted and battered picketing farm workers protesting working conditions.

The complaint alleged one hundred and seventy-five Teamster and grower agents used lead pipes, chains, crowbars, clubs, knives, guns, bottles, and rocks as weapons against UFW pickets, threatened to kill members, burn homes and vehicles, desecrated a Mexican flag, broke a priest’s nose, and picket captain’s shoulder.

The Teamster and grower attorneys filed an attempt to dismiss these pleadings. In opposition I filed a thousand pages of declarations, a legal brief, and exhibits with photographs. The Court denied the motions and set the case for trial.

On August 3, 1975, the police arrested five Unitarians from Pacific Unitarian Church of Palos Verdes for violating a Superior Court temporary restraining order. The Boys Market TRO did not prohibit conversations between pickets and customers. Kris Okershauser, Fiona Knox, Doriane Moyer, Carol Likins, and Peter Savino provided statements that revealed the police strip-searched four women after the false arrest and failed to follow the terms of the TRO. They thought it prevented the UFW boycott. To Boy’s complaint, I filed a cross-complaint for a TRO prohibiting them from infringing UFW First Amendment Rights. Judge Dowds ordered Boys Market to show cause why the TRO I filed should not be granted, but did not issue the TRO despite the declarations showing violations had occurred. The case sought damages for violating First Amendment rights and personal injuries to Peter Savino, dragged by police across the parking lot by the throat at a vigil. Rev. Al Henriksen, Pacific Unitarian Church minister, spoke against the violation of civil rights at a press conference.

Many California grape growers and Safeway Stores challenged one of the class actions I handled known as the “sour grape case.” They asked the judge in 400 pages of motions to dismiss the case. The defendants may have thought they could paper me to death since I did not belong to a law firm. I spent many twelve-hour days in the library preparing the opposition. The ACLU provided additional typists to assist in my one-hundred-page response that asked the Court to permit the case to proceed to trial.

Jerry Cohen arrived from Tehachapi to visit before the hearing to read my arguments. He was reassured after he read my opposing memorandum.

Judge Norman Dowds presided in Los Angeles Superior Court class action courtroom. Over twenty management lawyers argued that the court should dismiss the case. After the hour it took for arguments, I addressed each of their contentions and demonstrated how the UFW claims derived from valid legal precedents and that the defendants had violated the Agriculture Code and the Consumer Legal Remedies Act distinguishing each case they cited. After my thirty minute argument the defense replied using their star management attorney who argued for dismissal, the case would waste valuable judicial time, and the UFW should not benefit from litigation designed to increase legal expenses for their enemies in a labor dispute. Slick, experienced, and silver-tongued, the icon of the establishment attempted to refute my arguments, but used authorities I had already distinguished.

He asked the judge, “The defendants request dismissal of this frivolous complaint and sanctions against Mr. Lavery for requiring these corporations to defend against it. He forced these growers and stores who provide grapes for our nation to spend thousands of hours responding to an inane case. We request Mr. Lavery be ordered to pay defense attorneys fees as a sanction for an abuse of process. He filed politically motivated pleadings that are not for legitimate consumer protection and diverted the Court’s and the defendants’ precious time and resources. His malicious purpose was an obvious ploy to support the boycott.”

Judge Dowds looked at the crowd of attorneys before him and the three-foot stack of legal briefs that covered his desk. He paused, and looked around at the courtroom full of UFW supporters with their Aztec insignias, and calmly said, “I overrule the demurrers and the motions to strike as to each cause of action and deny the requests for sanctions. Clerk, set the case for trial and notify counsel.”

The crowd shouted respectfully, “Si se puede!” They gathered outside the courtroom to celebrate another victory. As I left the presence of the judge and the UFW I met Jerry who had listened and said, “You were hitting on all eight cylinders.”

I remembered five years ago watching Jerry argue a case in court and had thought I could never argue civil rights issues against lawyers before a judge as I had no confidence in my speaking ability. After leaving the Navy, I had radically changed my life’s course. Feelings of gratitude and humility emerged for the cause I served. The conflicts I had encountered along my chosen path were negligible compared to the experience they forged into me. I had challenged some of the most powerful forces in society. With less than a year of litigation experience, I had participated in accomplished victories. Battling for civil rights at the ACLU for the UFW had transformed me from a shy person, afraid to assert himself because of lack of confidence, training, and experience, into a capable attorney. I had tapped into a source of power in this movement and within myself that had made a difference rather than the pawn I had been in the military going nowhere fast.

(This essay is composed of excerpts from three chapters of Dan Lavery’s memoir: All the Difference, looking for a publisher. Read more from Dan at his website: www.danielclavery.com or contact him at djasb@aol.com)