Voting Practices Could Be Key to Council Liability : Courts: A judge refuses to drop lawmakers as defendants in a $20-million brutality suit against the LAPD. Scholars call the ruling groundbreaking.

Los Angeles City Council members could be held personally liable for the killing of a robber by a special police squad if it can be proved that council members routinely voted to have the city pay damages imposed on officers found guilty of brutality, a federal judge has ruled.

In a written ruling released Friday, U.S. District Judge J. Spencer Letts refused to dismiss the 15 council members as defendants in a $20-million police brutality lawsuit filed on behalf of Johanna Trevino, a 2-year-old girl whose father was killed by the Los Angeles Police Department’s Special Investigations Squad. The SIS killed three robbers and seriously wounded a fourth after a holdup at a McDonald’s restaurant in Sunland on Feb. 12, 1990.

“The implications of this are really grave for the City Council members,” said Stephen Yagman, Trevino’s lawyer. “Now, these hack politicos are going to have to pay for their awful conduct from their own pockets.”

Letts issued a verbal order on July 20 in which he refused to dismiss the council members from the case, which also names former Police Chief Daryl F. Gates, Mayor Tom Bradley and the nine officers.

But Yagman contended the 10-page written order has much broader ramifications than the verbal order, saying it sets a precedent under which city officials can be held personally accountable for their official actions.

An attorney for the city said the ruling was merely a technical necessity, and will have no such sweeping affect.

Two legal scholars, however, described the decision as groundbreaking because it could hold city officials personally liable for legislative actions for which they normally would receive absolute and total immunity.

Prof. Erwin Chemerinsky of the USC Law School said the case was significant because lawmakers traditionally have blanket immunity from personal liability for their legislative actions.

Agreement came from Prof. Candace McCoy, a constitutional law expert and legal sociologist at the Rutgers University School of Criminal Justice in New Jersey.

“Ordinarily, a judge wouldn’t even look beyond” the traditional shield of “absolute immunity,” she said.

“But now that this judge has, Pandora’s box has been opened. This is incredible. Once the judge starts looking into this, who knows what will happen?”

McCoy said the decision indicates to her that the judge is at least partially acknowledging that the council’s granting of indemnity to police officers found guilty of brutality “may be preventing the reform of the Police Department that these lawsuits otherwise would cause.”

The girl’s lawsuit is identical to an earlier suit filed by the lone survivor of the shooting and relatives of the dead men. They won $44,000 in damages from Gates and nine SIS officers in a three-month trial this year.

In the first court case, jury members said they set such a low damage amount to send a message to the LAPD about police brutality and to ensure that Gates and the officers could pay the money out of their own pockets.

Yagman, the lawyer in the first case, named the council members as defendants in the current lawsuit because, after the verdict in the first case, they voted in closed session to shield the officers and Gates from financial harm by having the city treasury pay the damages.

By that action, the council members were in effect endorsing the conduct of officers found guilty of brutality by a jury, Yagman said.

“This ruling says that we have to prove there is a pattern on the council to routinely indemnify cops on police brutality cases, in order to hold them liable,” Yagman said.

“I know that can be proved. They have voted for indemnification in 100% of the cases.”

Letts, in his ruling, said city officials sometimes should be held responsible for the effects of their administrative actions.

“If it were true that the City Council has granted unthinking indemnity to all police officers who have used excessive force on victim citizens, no matter how willfully force was applied, it would seem quite likely that this practice has contributed significantly to the problems,” Letts wrote.

“As long as those responsible for the use of excessive force are able to pass the economic consequences of their acts to taxpayers, change is likely to remain difficult.”

As such, the facts of the case “do not give rise to absolute legislative immunity” for the council members, Letts wrote.

Annette Keller, an assistant city attorney, disagreed with Yagman’s interpretation of the ruling. She said the written order is very narrowly focused and does not set a precedent. Rather, she said, it means the judge thinks only that council members don’t have complete and absolute immunity, and that therefore they must remain defendants in the lawsuit simply on technical legal grounds.

“He’s merely saying he will not dismiss the council,” she said. “He clearly leaves open the issues of qualified immunity,” which means council members themselves are covered by well-established immunities for elected officials when voting on how to settle police brutality suits.

Keller, who represents the city in police brutality cases, said she had no statistics on how many times the city has voted to indemnify police officers. But she said the council clearly gives such decisions a great deal of thought, and that Yagman would not be able to prove the council ever granted “unthinking indemnity.”

Furthermore, she said the city attorney’s office probably will appeal the judge’s decision.

Keller pointed to parts of Letts’ decision to support her view that the judge merely wanted to rule that council members lack absolute immunity.

In his decision, Letts said that among the reasons he included the council members in the suit was because releasing them without hearing any facts in the case might give the impression that “that there are no circumstances, no matter how egregious, under which” council members “could be brought to personal account for the consequences of their behavior.”

Although the judge has not heard any arguments in the case, he wrote that he has no reason to doubt that the council acts “in good faith with respect to indemnification decisions, and indeed the court would be shocked . . . to discover any serious improprieties.”

Nevertheless, he wrote, there is always the possibility that the case will show one of several unlikely, but possible, “worst behavior” scenarios by council members in considering police brutality cases. Those include: voting to indemnify in every case, making indemnification decisions based on the race of the victims, “or even that they routinely accepted bribes in return for indemnification,” the judge wrote. Letts refused to allow Yagman to subpoena council members and get depositions from them revealing their actions in the private debate and vote. Yagman said he wants to know which members did not vote to indemnify the officers so he can drop them from the suit, and that he wants to know on what basis the others voted to indemnify.