City Not Liable for Deaths in Massacre, Judge Rules

Survivors of the massacre at a McDonald’s restaurant in San Ysidro cannot seek compensation from the City of San Diego for alleged police errors, a San Diego County Superior Court judge has ruled.

The decision by Judge Mack P. Lovett, which attorneys in the massacre cases learned of last week, represents another major blow to the victims’ hopes for collecting substantial cash damages as a result of the 1984 tragedy.

Lovett ruled that the city could not be held liable for the deaths and injuries at the restaurant, because the victims failed to prove that police actions during an hourlong standoff with gunman James Oliver Huberty heightened the danger to passers-by and restaurant patrons.

The ruling comes only weeks after a decision by Lovett dismissing the same group of survivors’ lawsuits against McDonald’s Corp. Earlier, a federal judge in San Diego threw out the victims’ lawsuits against the company that imported the Uzi semi-automatic gun Huberty used in his shooting spree July 18, 1984.

Huberty killed 21 people and injured 15 more in a hail of gunfire at the San Ysidro restaurant that ended when a police sniper shot him to death.

Each of the court decisions has addressed suits filed by 26 survivors of the massacre or relatives of the dead. Suits filed by an additional 37 victims are not directly affected by the rulings, although attorneys say the initial decisions may indicate how the other suits will fare.

David Korrey, the attorney for 25 of the group of 26 survivors, had argued that a series of cases in California courts have stripped cities of their immunity from lawsuits challenging the performance of police.

In the San Ysidro massacre, he said, police assumed a special legal responsibility for the situation by arriving on the scene. But Korrey contended that bad planning and poor decision-making by officials of the police Special Weapons and Tactics (SWAT) unit exacerbated the carnage, instead of lessening it.

However, Lovett sided with the city, ruling that “the peril” to the victims “was not created by the officers. . . . Their conduct did not change the risk, which would have existed in their absence.”

An internal Police Department review following the massacre concluded that officers had handled the incident correctly. Yet last fall, police reorganized the SWAT unit, acknowledging that the San Ysidro experience had prompted some of the changes.

Korrey said Monday that he plans to appeal the latest ruling, as he has those that preceded it.

“When we started this case, we felt we’d have a lot of these matters tested in appellate courts,” he said. “Maybe it’s better to test it now than later on, after we’ve spent several months at trial.”

Deputy City Atty. Les Girard described Lovett’s decision as “a big ruling” in the city’s favor.

“We firmly believe we have no liability in this matter,” he said. “Hopefully, in the end, in the long run, that will be borne out by the courts.”