Riot Victims’ Claims Try to Pierce Wall of Immunity : Law: Citizens say police failed to protect them. But government says it is shielded by state statutes.

Thousands of riot-related claims were filed against the city, county and state last week; every one told a story of loss. But amid graphic accounts of fire and looting, the allegations of betrayal stood out.

In several claims, citizens alleged that law enforcement officers violated what were in effect verbal contracts with the public. The police pledged to help them, the citizens said, and then failed to make good on their promises.

Like a catalogue of painful memories, these claims add detail to an already chilling chronicle of a Los Angeles spinning out of control. Moreover, according to lawyers who are studying the feasibility of filing riot-related lawsuits, these cases may be among those best able to penetrate the wall of immunity that protects state and local government from most legal challenges.

That wall serves an important purpose. Without it, the ability of police and other public safety officials to make split-second decisions might be compromised. And some officials argue that local governments could go bankrupt defending themselves from second-guessing.

But that rationale does little to appease such claimants as Soon Ja Kim, who was shot in the leg April 30, the second day of rioting.

In search of medical attention, Kim’s claim states, her husband took her to a strip mall parking lot at 9th Street and Western Avenue, where a group of police officers had assembled. The husband asked them to call paramedics and care for Kim until medical help arrived. When the police agreed, the claim states, he returned to the family store to protect it from looting.

When gunshots rang out in the distance 10 minutes later, the claim says, “all of the approximately 20 police at the scene then jumped into their police cars and sped off, leaving (Kim) alone and bleeding in the midst of hundreds of looters and rioters. (Kim) believed she was dying and had been abandoned. . . . (Kim) suffered severe emotional distress believing that she would die alone on the street.”

David Su Ahn’s claim, while less poignant, also alleges that his trust was abused.

Ahn said police prevented him from taking valuables out of a safe in his Compton jewelry store because fire had made the building too dangerous. But Ahn said the officers implied that they would protect it.

“Police officers told him to go home and not to worry--that the safe would be secure,” states Ahn’s claim. When he returned hours later, the claim says, a safe containing cash and jewelry was missing.

Similarly, Wha Soon Choi, a jeweler in South-Central Los Angeles, claimed that when he called the Police Department’s 77th Street Division to seek protection for his business, an officer told him: “Don’t worry. We’re taking care of it.” Instead, his claim asserts, “they never did anything.”

While lawyers hope stories such as these can poke holes in the armor of government immunity, they are by no means typical of the administrative claims filed last week, each of which seeks a minimum $10,000 compensation for injuries and losses. Such claims must be filed to reserve the right to sue the government in state court.

“The average claim is: ‘Police passed by, refused to help and I lost everything.’ That’s probably 90% of them,” said John Adsit, an attorney who was part of a coalition organized to help victims fill out the claims.

Senior Assistant City Atty. Thomas Hokinson said claims that allege police failed to respond will be “no problem” for the city--they are clearly covered by the state’s immunity statutes and will be denied. The California Government Code says that state or local governments and their employees are not liable for the failure “to provide sufficient police protection.” Municipal fire departments are protected under a similar code.

However, the city could be liable in those cases in which citizens allege that police officers agreed to help them and then did not, Hokinson said.

“If Officer X says to Joe Citizen: ‘I will do the following for you,’ and doesn’t do the following and negligently doesn’t do the following, there is potentially liability,” said Hokinson, who heads the unit that is reviewing about 1,800 claims filed against the city.

Hokinson refused to comment on specific cases. But as of late last week he said his review of the claims had not turned up any alleging that officers breached duties that they had agreed to fulfill. If such cases are discovered, he said, they will be investigated. “The city will take appropriate action based on what the investigation shows,” Hokinson said.

Legal scholars caution that many factors could affect the strength of such lawsuits.

First, riot victims would have to establish that they developed a “special relationship” with police in which an officer agreed, either directly or implicitly, to perform a service.

Then, said UCLA law professor Gary T. Schwartz, the plaintiffs would have to show not just that they relied on the word of an officer, but that they did so to their detriment.

“The general doctrine is you have to be worse off on account of the undertaking, worse off because you relied on it in the sense of not doing something that you otherwise would have done,” Schwartz said.

For that reason, Schwartz said he believes that Ahn, the business owner who claims police prevented him from protecting his valuables, would probably have a stronger case than Choi, the business owner who claims he called police and was told to stay at home.

“Given what (Ahn) was ready to do--protect himself--he even has a stronger claim of reliance because he had already embarked on a self-protective measure,” Schwartz said.

Others said that cases could be weakened by a riot victim’s failure to identify a particular officer in his or her claim. In the claims of Kim, Ahn and Choi, no officer is named.

“It’s a significant obstacle that they would have to overcome,” Hokinson said. “There is no requirement that they identify a specific officer. But it goes to the credibility of the claim.”

Another likely obstacle would be the unusual circumstances of the rioting.

Alan Calnan, a professor at Southwestern University School of Law in Los Angeles, said it will be difficult to prove that police were negligent in incidents that occurred during the civil unrest.

“You have to look at what they did and the circumstances under which they did it. You have to evaluate them under what was reasonable when the city was under siege,” he said. “The jurors are going to remember that these were not police officers standing around twiddling their thumbs. They were out there protecting the city.”

Even in the case of Kim, the woman who says she was abandoned by police, Calnan said, a jury would be asked to weigh her suffering against whatever suffering might have occurred if police had not gone to investigate the gunshots they heard in the distance.

“Perhaps a greater number of lives might have been lost if they had not answered the call that drew them away from this woman,” he said. “It sounds callous, but you have to determine what’s best for the social good.”

Prof. Erwin Chemerinsky of the USC Law Center agreed that such an argument would likely be used, though he said that if Kim’s claim can be shown to be factual, she may have grounds for legal action.

“I believe there is a possible claim there. (If) she really was being taken care of by police officers and was physically within their custody, to leave her lying in the parking lot is a breach of that duty,” he said. “But I would not want to predict what a jury would do.”

Lawyers cite several cases under which governments have been held liable for damages incurred after plaintiffs relied on the assurances of law enforcement officers. But such rulings, they say, are vastly outnumbered by those that preserve governmental immunity.

“There are holes in immunity. They’re not very big,” Adsit said. “I’ll be the first to admit that going up against that immunity statute is an uphill battle.”

A 1991 California appellate court decision, he notes, said that a plaintiff shot by an unknown assailant--allegedly in retaliation for having testified against a defendant in an earlier hearing--was owed a “duty of care” by the city of Los Angeles. LAPD officers had learned of a threat to the plaintiff, but had not warned him. The city was found liable.

In 1977, the appellate court found that the state was liable in the case of a California Highway Patrol officer who stopped to investigate two stalled cars on the freeway, but left--without posting flares or informing anyone of his departure. People standing by the cars were struck by a passing vehicle.

Although no special relationship exists between members of the CHP and the public, the court held that once an officer has chosen to investigate the plight of motorists on a freeway--and has become aware of the foreseeable danger to them from traffic--a special relationship exists that requires him to protect them.

In contrast, Hokinson cited a 1983 California Supreme Court case involving a woman injured when a piece of brake drum from a passing truck was propelled through her windshield. The woman sued the state, alleging that CHP officers who arrived at the scene destroyed her chances of obtaining compensation from the truck driver because, among other things, they failed to pursue the truck.

The Supreme Court found that CHP officers have the right, but not the duty, to come to the aid of stranded motorists; stopping to investigate, the justices said, does not in itself create a special relationship.