HAYWARD, Calif. (KTVU) - The city of Hayward has filed a motion to get the attorneys for the family of a 42-year-old father who died in police custody while telling them he couldn't breathe to stop talking publicly about the case because they believe it will taint a jury pool.
The request for a protective order filed June 6 in the Northern District U.S. Court in San Francisco comes three days after 2 Investigates aired and published a story about the death of Roy Nelson Jr.
In the motion, Hayward City Attorney Michael Lawson accused attorneys from the John Burris law firm, who represent Nelson's family, of "attempting to improperly try this case in the media." Lawson requested a judge grant a motion where Nelson Jr.'s attorneys must "immediately cease" making public comments regarding the case and releasing records that the city deemed as confidential to the media.
The city's motion cited a particular example from the 2 Investigates story, when the Nelson family attorney, Adante Pointer, said that Nelson Jr. is the "West Coast Eric Garner case." Garner made national headlines when he told New York police he couldn't breathe before he died after being put in a chokehold. Nelson Jr. told Hayward police he couldn't breathe on Dec. 19, 2015 when he died after being put in a restraint, called a WRAP.
Hayward's motion also cites statements made to the Bay Area News Group, which also published a story about Nelson Jr.'s death as reasons for their proposed gag order.
"Mr. Pointer should have known that this statement to the media would be made public and that will have a substantial likelihood of materially prejudicing the Federal Court proceedings," Lawson wrote. "Furthermore, it attempts to capture the anger and national movement associated with the Garner case and channel it to the instant case in an effort to gain a trial advantage."
The city of Hayward wrote that if these type of comments don't stop, they will be forced to ask for a change in venue and "sanctions will be necessary."
However, Melissa Nold, an attorney with Burris' firm, countered in her opposition filings that Hayward's "defamatory and frivolous" motion "appears calculated to further the city of Hayward's history of concealing the true details surrounding the heinous death of Mr. Roy Nelson for the purpose of quelling public outcry and interfering with the life-saving police reform movement in Hayward and across California."
Her counter-motion argues that the city of Hayward not only waived, in writing, the confidential status of the records in question, but that "continuing to maintain secrecy" regarding Nelson Jr.'s death poses a safety hazard. That's because, Nold argued, the city of Hayward has "failed to discipline or retrain any of the officers involved in his horrific and preventable asphyxiation death."
Nold argued that her team should be allowed to freely talk about the case to counter the police narrative that was issued five years ago when Nelson died. Police maintain that Nelson Jr. needed to be restrained that morning because he refused to stop kicking the back of a patrol car. The Alameda County Coroner found that Nelson Jr. died accidentally, a result of cardiac arrhythmia along with acute methamphetamine and amphetamine intoxication associated with physical exertion. His ex-wife had called 911 earlier asking for help as Nelson Jr. was suffering from a mental health emergency. Police were waiting for an ambulance to take Nelson Jr. to the hospital and were waiting for a transport in the parking lot of Chabot College. That's when Nelson Jr. began kicking in the back of the patrol car, hoping to get out.
Video provided to 2 Investigates does show Nelson kicking the back of the car, but his the Burris law firm attorneys argue that no damage was done. That video is part of the public record, Nold argued.
Meanwhile, Nelson Jr.'s family, including his son, Roy Nelson III, maintains that his father, who was suffering from a mental health emergency and had called 911, died because of the color of his skin.
"It's because he was black," Nelson III told 2 Investigates earlier this month. "He and my mother called for help. And they basically saw him as a criminal and they treated him as they treat any other African-American."
Finally, Nold wrote that the silencing of attorneys raises First Amendment issues, and the "limitations on attorney speech should be no more than is necessary to protect the integrity of the judicial system and the defendants' right to affair trial."
Nold wrote the counter-motion to Hayward as Pointer, the lead attorney for the Nelson family is currently in trial in San Jose, is also representing the family of Anthony Nunez, who filed a wrongful death and excessive use of force lawsuit against police there.
Legal analyst Steven Clark, who is not affiliated with the case, reviewed the request and told KTVU on Tuesday that he believes the judge will be reluctant to issue a gag order. But he did say that he thought a judge would allow extensive juror questioning on the media coverage and whether jurors can put that aside and only consider the evidence at trial.
Clark said that Nelson's attorneys are allowed to "correct the record in the court of public opinion."
He also added that bringing this motion, especially in a civil case, actually heightens media attention to the case and "may backfire on Hayward PD."
A hearing on the gag order has been scheduled for July 29. The trial is scheduled for October.