July 13, 2001

Use of RICO Law in Rampart Cases Weakened;
Courts: Recent rulings say plaintiffs have no basis to sue the LAPD under the federal racketeering statute.

BYLINE: HENRY WEINSTEIN, TIMES LEGAL AFFAIRS WRITER

BODY:
A Los Angeles federal judge has issued more than a dozen rulings in recent days casting serious doubt on whether plaintiffs in Rampart scandal-related civil cases will be able to recover any damages against the Los Angeles Police Department under federal racketeering laws.

U.S. District Judge Gary A. Feess said that the plaintiffs do not have standing to sue the LAPD under the Racketeer Influenced and Corrupt Organizations Act (RICO) because they are alleging personal injuries rather than economic or property damage.

Last year, another federal judge in Los Angeles, ruling in one Rampart case, said that the plaintiffs could pursue RICO claims against the LAPD, an unprecedented finding. The idea that a police organization could be characterized as a racketeering enterprise shook up City Hall and further damaged the already tarnished image of the LAPD.

However, that decision by Judge William J. Rea was not binding on other judges and since then, Feess was put in charge of more than 100 Rampart civil cases for the purpose of making pretrial rulings.

"RICO does not afford a civil remedy for all injuries caused by unlawful racketeering activity; only injuries to 'business or property,' " Feess wrote in several virtually identical decisions. "False arrest and false imprisonment constitute injury to the person, not to business or property."

Failing to Meet Standard for Claim

Moreover, Feess emphasized that the loss of a job or potential earnings as the result of being imprisoned illegally does not meet the standard for a RICO damage claim, unlike a "tangible financial loss to a business recoverable under RICO."

Feess' detailed ruling said that decisions by higher courts--including a 1992 decision by the U.S. 9th Circuit Court of Appeals--have implicitly rejected last year's holding by Judge Rea that personal injuries provide a basis for a RICO claim. Rea's ruling in that one case is still pending. In light of Feess' recent decisions, the city attorney's office may ask Feess to reconsider Rea's ruling or wait until later and seek to have the RICO claim thrown out on a summary judgment motion.

Feess acknowledged that placing recovery for monetary losses associated with personal injuries outside the scope of civil RICO claims "creates the possibility that victims of predicate acts of racketeering, such as murder and kidnapping, will be unable to use RICO as a vehicle for redress."

Nonetheless, Feess said other remedies may be available to plaintiffs in Rampart cases who allege that LAPD officers illegally arrested people, manufactured evidence, testified falsely at trial and in some instances beat and shot people. The judge did not spell out in his rulings what those remedies are.

Loyola Law School professor Laurie Levenson explained that the plaintiffs still can recover monetary damages under more traditional theories of civil rights violations, the other principal allegation in the Rampart cases. And in such cases, a plaintiff can recover large sums, including punitive damages.

To date, more than 100 criminal convictions have been overturned as a result of the Rampart scandal and eight LAPD officers have been charged with crimes. At one point, 70 officers were under investigation and many still are as federal authorities continue their probe of the scandal.

So far, the city has incurred $31.5 million in damages in Rampart litigation, according to Thomas C. Hokinson, the chief assistant city attorney. Hokinson said that 156 civil cases stemming from the Rampart scandal have been filed thus far, with 47 having been settled and eight dismissed.

Feess' orders give plaintiffs 40 days to amend their complaints. Venice attorney Stephen Yagman, who lodged a number of the cases, said he is confident that he can meet the requirement to properly plead a RICO claim.

However, Judge Feess' rulings and the RICO statute present the plaintiffs with major hurdles, according to Levenson.

"RICO is designed for business victims," she said. "The person who is lowest on the totem pole is least likely to get damages through RICO," Levenson added, referring to the fact that most of the plaintiffs in the Rampart cases are poor and a number have criminal records.

Enacted as Weapon in War on Crime

On the other hand, she stressed that Feess' rulings, though legally significant, do not vindicate the officers who have been accused of misconduct.

Under the RICO statute, racketeering is defined as a criminal enterprise that affects interstate commerce and uses illegal means to further its ends. Originally enacted three decades ago as a tool in the government's war against organized crime, the law has been used against a variety of other wrongdoers since then--but not against a police department.

Feess ruled that the plaintiffs, in their suits, had not charged the LAPD with the proper violations needed to sue under RICO. For example, he said the plaintiffs had not alleged that they had sustained injuries as the result of the defendants' acquiring an interest in a business or other enterprise--a necessary element for a RICO claim.

On another issue, Feess wrote, "planting evidence, witness tampering and testifying falsely at a state criminal proceeding do not qualify" as underlying acts necessary to file a RICO claim.

In addition, Fees said the plaintiffs had failed to meet the requirements of another section of the law because they had not pleaded any facts showing LAPD officers had engaged in at least two acts of racketeering activity. Moreover, Feess said the plaintiffs had not shown they can prove the racketeering acts "constitute a pattern of criminal activity."

Assistant City Atty. Paul Paquette called the rulings an excellent development and said it would be difficult for the complaints to be amended successfully.

In a related ruling, Feess held that former Dist. Atty. Gil Garcetti is immune as a prosecutor from any RICO allegations because they "were based on activities intimately associated with the prosecutor's traditional role in the criminal process."

However, Feess ruled that for now, the plaintiffs can continue to pursue damages for Rampart-related civil rights violations against the city's new mayor, James K. Hahn, and former Mayor Richard Riordan, several current and former members of the City Council and certain officials of the city attorney's office. Yagman's suits contend that the officeholders sanctioned illegal police behavior when they agreed in prior cases to pay punitive damages that had been assessed against individual officers by juries.

When city officials agree to pay those damages, Yagman said, "it has the effect of letting cops know that whatever they do has no consequences. Therefore, they feel free to violate the Constitution because they have a 'get out of jail free' card." Fees cited a recent 9th Circuit decision in a case involving the Sheriff's Department as the authority for this ruling. Lawyers for the city are expected to revisit the issue later in the case.