Convict Can Sue LAPD, Court Rules

A federal appeals court ruled Tuesday that the Los Angeles Police Department can be sued under the federal racketeering law by a man who claims he was framed by officers as part of the Rampart scandal.

By a vote of 7 to 4, the U.S. 9th Circuit Court of Appeals ruled that David Diaz is entitled to pursue claims against a host of former Los Angeles officials, including former Police Chief Bernard C. Parks, now a city councilman.

Diaz alleges that Los Angeles police officers fabricated evidence, tampered with witnesses and conspired to obtain a false conviction against him for assault with a deadly weapon and other charges. As a result, Diaz says, he lost his job, chances of other jobs and money he would have earned.

Diaz’s attorney, Stephen Yagman of Venice, hailed the decision as “fantastic.”

“I’ve been pushing this theory. Now I truly can say, and make it stick, that the LAPD is the mob,” Yagman said.

But even some of the judges who ruled in his favor noted that Diaz is a long way from winning his case.

To win, Diaz will have to convince a jury that it is more likely than not that he was framed. The biggest hurdle he is likely to face, the judges noted, is that a jury found him guilty in November 1999 of attempted murder, aggravated mayhem, assault by means likely to produce great bodily injury and assault with a semiautomatic weapon. He was sentenced to 37 years to life in prison.

Diaz, who is challenging his conviction in separate legal proceedings, has lost in a California appeals court and the California Supreme Court. The U.S. Supreme Court declined to review the case. And earlier this year, a federal district judge in Los Angeles rejected Diaz’s motion to examine the case anew.

“Because of his attempted murder and assault convictions, Diaz will likely face an uphill battle” in his case against the city, wrote one of the members of the 9th Circuit majority, Judge Andrew J. Kleinfeld.

One of the four dissenters, Judge Ronald M. Gould, wrote that Diaz’s assertion that he is wrongfully imprisoned is “highly questionable.” When Diaz asked the federal courts to review his conviction, Gould noted, “he argued only that his right to a fair trial and due process were violated by the removal of a juror; he did not contest the sufficiency of evidence to support his conviction.”

The issue before the 9th Circuit was not whether Diaz was guilty, but whether he had the right to pursue his case against the LAPD under the federal Racketeering Influenced and Corrupt Organizations Act.

Diaz initially lost that fight under a ruling by U.S. District Judge Gary A. Feess, who has been assigned to preside over the Rampart civil cases.

The RICO statute was enacted in 1970, with the goal of giving federal prosecutors another tool against organized crime. Under the law, racketeering is defined as a criminal enterprise that affects interstate commerce and uses illegal means to further its ends.

Over the last 30 years, the law has been used against a variety of wrongdoers, including drug traffickers, slumlords and perpetrators of healthcare fraud.

A plaintiff who prevails in a RICO case can get triple damages.

Legal experts said they were unaware of any instance to date where a police department had been found liable under RICO.

Feess ruled that the law allows suits alleging economic harm or damage to property, but not the sort of personal injuries claimed in the Rampart cases.

A 9th Circuit panel initially voted 2-1 to agree with Feess’ interpretation of the law. Then the full 9th Circuit agreed that a larger, 11-judge panel should reconsider the case.

The larger panel ruled that causing a person to lose a job and “interference with prospective business relations” were the sort of harms that could be alleged in a RICO case.

The majority consisted of Kleinfeld, who was appointed by President George H.W. Bush; Sidney R. Thomas, Kim M. Wardlaw, William A. Fletcher and Martha S. Berzon, appointed by President Clinton; Stephen Reinhardt, appointed by President Carter; and Alex Kozinski, appointed by President Reagan.

Reinhardt wrote separately that the majority’s interpretation of the law was required by Supreme Court precedents that had “stretched” the RICO law “far beyond that which Congress originally intended.”

RICO “has become through judicial construction a wide ranging act that provides treble damages for all kinds of conduct unrelated to

The four dissenters said the majority decision would allow almost any case to become a RICO matter. The ruling “opens the door to any plaintiff’s lawyer savvy enough to include an allegation that other wrongs led to any degree of lost employment,” wrote Gould, a Clinton appointee.

His dissent was joined by Mary M. Schroder, the 9th Circuit’s Chief Judge and a Carter appointee; and Jay S. Bybee and Consuelo M. Callahan, both appointees of President George W. Bush.

Gould also noted that the ruling put the 9th Circuit at odds with decisions from federal appeals courts in Chicago and Atlanta.

That sort of conflict among the appellate courts could lead the Supreme Court to decide to examine the case.

Jonathan Diamond, a spokesman for the Los Angeles city attorney’s office, said lawyers there were disappointed in the ruling and were thinking of asking the Supreme Court to review it.

“We believe that if this case ends up going to trial, we will prevail on the merits of the underlying case,” Diamond added.