Boy Who Was Fetus When Father Died Is Allowed to Sue : Law: Court says child has right to claim he was deprived of civil rights by 1982 killing at hands of LAPD unit.

An appeals court in San Francisco ruled Monday that a child may bring a federal civil rights suit over the allegedly unconstitutional killing of his father, even though the child had not been born when his father died.

The U.S. 9th Circuit Court of Appeals held that John Crumpton IV, now 9, is entitled to a trial on his contention that the September, 1982, slaying of his father by the Los Angeles Police Department’s Special Investigations Section violated his civil rights by depriving him of a father.

Attorneys for Crumpton filed a $10-million damage suit in 1989, asserting that the officers, referred to as an LAPD “death squad,” used excessive force when they killed his unarmed father, John Crumpton III, after the father had robbed a bank in Burbank.

The appeals court unanimously reversed a December, 1989, decision by U.S. District Judge Stephen V. Wilson that Crumpton had no standing to sue because he was a fetus when his father was killed.

The appellate panel, in essence, skirted existing case law that held that a fetus is not “a person” and is not entitled to protection under federal civil rights laws. Roe vs. Wade, the landmark decision legalizing abortion, is the best known of the cases that excluded the unborn from constitutional protection.

The panel said the Roe decision did not apply because it involved the rights of a fetus as a fetus--an issue that differs from those raised in the Crumpton case.

Whether Crumpton, as a child, may assert a federal civil rights claim “based upon the killing of his father by state actors is an entirely different proposition, one for which we have found no precedents,” said the appeals court.

Appellate Judge Robert Boochever also cast aside as irrelevant several other cases in which children were not allowed to sue after they were born, including instances in which their mothers were beaten while pregnant. Judges Alex Kozinski and Diarmuid O’Scannlain joined in Boochever’s opinion.

The appeals court said this case was different because Crumpton’s injury--being deprived of a father--did not begin until he was born.

“He was a ‘person’ when the injury occurred, at his birth,” the judges wrote.

Two legal scholars said the novel decision avoided some difficult problems by the manner in which it defined the issues.

“They have tried to avoid the difficult question--is a fetus a person at the time it’s a fetus--by looking at the temporal question--when did the injury occur?” said Julian Eule, a constitutional law professor at UCLA Law School.

“Then the judges said the injured party is not a fetus but a baby. Clearly, a birthed baby is a person under the Constitution,” Eule said.

Susan Estrich, a constitutional law professor at USC, praised the decision. “The loss the child is claiming is a very substantial one,” she said.

“The fact that his mother was two months’ pregnant rather than having delivered the day before the shooting has very little impact on this kid’s claim that he is going to go through life fatherless,” she said.

Eule said that while it was possible that the decision would be appealed, he expressed doubts that it would have any significant impact on the longstanding legal and political controversy over abortion rights. He said that if the Supreme Court decides to overturn Roe vs. Wade it could do so directly in one of several cases involving state abortion laws, rather than in a case such as this, where the issue is more oblique.

Assistant City Atty. Linda Lefkowitz said the city was disappointed with the decision, but added that she could not say whether it would be appealed until she had time to review it.

She expressed confidence, however, that if the case goes to trial the city will prevail. Lefkowitz noted that last year a federal court jury cleared six undercover officers of alleged civil rights violations stemming from the same incident.

All the officers were members of a secretive 19-member squad that gathers evidence against repeat criminals by watching them commit crimes. The unit has killed more than 25 suspects and wounded at least 24 others since its inception in 1967 and operated so clandestinely that few knew of its operations until The Times published a series of stories about it in 1988.

Crumpton and Jane E. Berry were watched for 18 days, according to court records. The couple, both paroled bank robbers, had been linked by witnesses to five bank robberies in the San Fernando Valley and were wanted on federal felony warrants for parole violations.

The officers watched Crumpton steal a car and drive to a Security Pacific branch bank in Burbank. The detectives watched the couple put on rubber masks and gloves but did not stop them from robbing the bank.

Crumpton and Berry were confronted by officers as they returned to the car. The officers said they opened fire when the pair turned toward them. Crumpton was killed and Berry was wounded. Official reports showed their wounds were inflicted from the rear. Berry was armed but had not pulled her pistol.

In June, a federal court jury ruled that the four detectives who shot Berry and killed Crumpton had not used excessive force. That verdict meant an automatic dismissal of the case against the two remaining detectives, both since retired, who supervised but did not participate in the shooting.

Berry is the mother of John Crumpton IV, the plaintiff in the case decided Monday. She is serving a state prison term for the bank robbery. The boy is living with a guardian who filed this suit on his behalf.

In addition to damages, Crumpton’s suit asks that the SIS unit be disbanded. Crumpton’s attorney, Stephen Yagman, was traveling Monday and unavailable for comment. But one of his assistants said he was “delighted with the decision and looked forward to having another crack at (Police Chief) Daryl Gates and his death squad.”