Seeing Demonstrators as Extortionists : Law: When a prosecutor wouldn’t use the RICO statute to file criminal charges, citizens shouldn’t be able to use it to sue for damages.

Congress is currently considering a number of bills to amend the civil provisions of the RICO statute. Regrettably, none of the proposed changes addresses the core problem associated with private civil suits brought under the Racketeer Influenced and Corrupt Organizations law.

Coincidentally, the Supreme Court on Oct. 10 let stand an appellate decision upholding the right of injured parties to file a treble-damage RICO civil suit against anti-abortion demonstrators.

RICO is basically a criminal statute that also contains a private treble-damage civil remedy. The most persuasive explanation for its civil-suit provision is that it encourages injured parties, through the incentive of treble damages, to become private “attorneys general” and enforce the statute’s prohibitions against persons who have committed criminal RICO violations. (Simply stated, a criminal RICO violation is committed when a person associated with an organized group, whose activities affect commerce, conducts its affairs through the commission of two or more related federal or state crimes listed in the RICO statute.)

In practice, most RICO civil suits involve assertions that the plaintiff was injured by criminal fraud perpetrated by an organized group. In many such cases, a prosecutor would never have filed criminal charges even if adequate prosecutorial resources were available. Despite this, private plaintiffs are able to find a basis in the loose definition of criminal fraud to allege the elements of criminal conduct.

Permitting civil RICO suits in cases in which prosecutors, even apart from resource limitations, would not be willing to prosecute is inconsistent with the rationale underlying this treble-damage remedy. A sensible way to correct the problem would be to amend the RICO statute to require that such civil suits be screened by the central office of federal prosecution, applying the standard, “Even if sufficient resources to prosecute were available, would we decline to file criminal charges in this case?”

What would be the result if such an approach were applied to the abortion- demonstration case?

The lower-court decision is an example of how private civil RICO suits can depart from the rationale underlying the RICO treble-damage remedy. Whatever one’s views on abortion demonstrations, basing a civil RICO claim on the theory that the protesters committed extortion illustrates the kind of inappropriate use to which the statute can be put.

Extortion is a strange charge to bring against demonstrators engaging in conduct that would ordinarily be treated as criminal trespass, disorderly conduct or, if violent, some kind of criminal assault. It was alleged because extortion is the only offense on the RICO statutory list that could, even remotely, be deemed applicable to the conduct of the demonstrators.

Extortion is generally defined as obtaining property from another consensually where the consent is induced by threats or use of violence. Loosely applied, one could say that the abortion demonstrators engaged in extortive behavior. But this is not a case in which prosecutors, exercising their discretion, would ordinarily file extortion charges.

The abortion-protest case clearly involved criminal behavior. It is also true that, on occasion, prosecutors do prosecute for a crime that they would not initially think of as applying to the conduct in question. Might a federal prosecutor, faced with the criminal behavior of the abortion demonstrators and not having available, under federal law, any of the usual provisions applicable to such conduct, be prepared to charge extortion? If yes, and applying the above standard, injured parties should also be permitted to pursue their private RICO remedies in abortion protests.

It seems unlikely, even apart from ideological considerations, that federal prosecutors would reach out and use the crime of extortion in order to prosecute protesters. The reasons are simple: Using RICO and extortion in this manner would stretch the long arm of the federal criminal justice system into a local matter. It would involve transforming crimes that are usually misdemeanors into felonies. And it would seem to run counter to the modern tradition of not using extortion in another demonstration context, namely, not prosecuting labor-union protesters for extortion, even when they use illegal force to achieve union objectives.

If federal prosecutors would not have been willing to prosecute on that basis, potential civil RICO plaintiffs should also be barred from filing treble-damage suits. (Protesters may still be sued in ordinary civil or civil-rights suits or prosecuted under local criminal laws.) The statute should be amended to prevent private plaintiffs from bringing such suits unless a prosecutor would have been willing, if the necessary resources were available, to file criminal charges. None of the proposed amendments of the civil RICO provision before Congress would accomplish that result. For this reason they are fatally flawed.