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It sounded as if a federal judge was treating the Los Angeles Police Department like the Mafia. But the hoopla surrounding the court’s approval of the use of a federal racketeering law against LAPD officers may produce bigger headlines than damage awards. That’s because the triple damages allowed by the Racketeer Influenced and Corrupt Organizations Act (RICO) must be based on a plaintiff’s lost wages and can’t include punitives or losses due to civil rights violations or personal injury. Moreover, the judge, by asking for a motion to reconsider, has hinted that he may change his ruling anyway. THE RULING On Aug. 28, Senior U.S. District Judge William J. Rea said that a plaintiff who has accused police officers of mistreating him may litigate under RICO. That does not mean, however, that either the city or the LAPD is on trial in Guerrero v. Gates,No. CV 00-7165 (C.D. Calif.). A 1991 decision by the 9th U.S. Circuit Court of Appeals holds that government agencies cannot be sued under RICO. Lancaster Community Hospital v. Antelope Valley Hospital District,940 F.2d 397. The 1970 RICO law provides for treble compensatory damages, but the actual loss on which a RICO claim must be based is for lost opportunities to work. Even attorney Stephen Yagman, the plaintiff’s co-counsel, concedes that the prospect of treble damages has been exaggerated. “The LAPD is on trial in a colloquial sense,” said Yagman of Venice Beach, Calif.’s Yagman & Yagman & Reichmann. “You can’t sue a forest, but you can sue the trees. The most important thing is exposing the LAPD for what it is, which is the mob.” The civil rights case brought by Yagman for Louie Guerrero names about 200 individual officers and city officials. In addition to his civil rights claims, Guerrero alleges RICO violations on the ground that officers used membership in the police force, a pre-existing “enterprise,” to engage in criminal activities. Judge Rea ruled that Guerrero has standing to pursue his RICO claim. His reasoning: Guerrero’s two years of incarceration cost him employment or business opportunities. G. Robert Blakey, a law professor at Notre Dame University and the architect of the RICO law, said that Rea simply deemed the LAPD the instrument allegedly used by some officers. He didn’t hold it liable for any crimes, Blakey said. “Calling the LAPD a criminal enterprise simply means the officers might have used it for their own purposes,” he said. “The false impression has been created that the police department is a defendant and [that the plaintiff] will score big time.” Chief Assistant City Attorney Thomas C. Hokinson said that public entities have sometimes been held liable for actions of employees whose conduct was criminal. “The reason they’re using RICO is they’ll be able to get all kinds of discovery,” he said. “They’ll ask us to go back 10 years and provide all kinds of reports to try to show a pattern of racketeering.” The Los Angeles City Attorney’s Office is trying to fend off that prospect by preparing a motion for Rea to reconsider his RICO ruling — a motion that the judge himself requested, Hokinson said. Jeffrey E. Grell, who teaches law at the University of Minnesota, said that most judges don’t think claims of lost employment opportunities justify using the RICO law. Whatever the legal outcome, applying a racketeering law adds an obvious public relations value to the suit. “This thing was front page. It consumed the media,” said Laurie Levenson, dean of Loyola Law School. “It sent out shock waves and the message that the police department has become a racketeering enterprise.”
Visit law.com/ca for a profile of U.S. District Judge William J. Rea

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