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Commentary

RICO Is Worst Possible Way to Handle Rampart

September 03, 2000|THEODORE B. OLSON | Theodore B. Olson, a constitutional lawyer practicing in Washington, D.C., was a top official in the U.S. Department of Justice during the Reagan administration

Los Angeles taxpayers and their police department are about to experience the civil justice system equivalent of "the perfect storm." A federal judge has authorized a suit against the LAPD as a "criminal enterprise" under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO.

Described by one federal appeals judge as "the monster that ate jurisprudence," RICO in this context combines the far-reaching scope of a massive class action, the disruptive turbulence of intrusive discovery into a decade of day-to-day decisions by 9,000 police officers, involvement by private trial lawyers in virtually every past and future action by the LAPD and its leadership, and the extraordinarily destructive force of treble damages assessed against a municipality and its citizens. The confluence of these unnatural disasters is unprecedented. The resulting chaos, expense and dislocation will roil and scar Los Angeles long into the future.

It is tempting to say that Los Angeles deserves the hell that it is facing. The Rampart Division abuses are dreadful, inexcusable and plainly intolerable. The officers involved have caused irreparable injury not just to the many individuals damaged by their misconduct, but to the rule of law on which a civilized, orderly and successful society depends. Corruption in law enforcement corrodes the heart and soul of a community. But there are traditional and entirely adequate remedies for police corruption: swift and thorough removal and punishment of rotten police officers and those whose laziness or complicity allowed the abuses to occur and to flourish. And full compensation to persons whose rights have been violated.

However, it is essential to everyone who lives in or visits Los Angeles that its police department be restored as promptly as possible to its role of protecting citizens, enforcing the law and reinforcing the public's confidence in the stability of government. RICO will not serve those ends. It is harshly punitive and it will simply prolong and exacerbate the problems the Rampart scandal has created.

The Congress that enacted RICO and the president who signed it never contemplated its use against local governments. RICO was enacted to deal with the corruption and manipulation of commercial enterprises spawned or controlled by organized crime. It does so by deploying the jurisprudential equivalent of thermonuclear weapons, including severe financial penalties, judicial intervention in the form of injunctions governing the ongoing conduct of the alleged "criminal enterprise," a 10-year statute of limitations for the redress of injuries allegedly caused by the corrupt organization and intrusive and burdensome discovery by the lawyers for members of the plaintiff class.

RICO is bad enough when employed, as it often has been, against legitimate corporations, banks or groups of citizens such as abortion protesters. As Supreme Court Justice Antonin Scalia has explained, RICO is a kaleidoscope of hopelessly vague, amorphous and infinitely elastic terms such that it is impossible to know what conduct it covers. And, as the late Justice Thurgood Marshall wrote in another case, RICO raises significant civil liberties concerns because it is extraordinarily intrusive, enabling "private litigants . . . lured by the prospect of treble damages and attorneys fees," unrestrained by the limits imposed on public prosecutors, to use RICO for destructive and extortive purposes, "giving rise to the very evils" RICO was designed to combat.

The private attorneys who have brought this case say that they now will conduct "massive discovery of all [alleged] LAPD misconduct over the past 10 years." They will seek treble damages on behalf of every person injured by such conduct during that period, opening cases long since closed. They will seek an injunction that will empower them potentially to scrutinize every alleged abuse in every arrest during the existence of the case, thus ensuring that essentially every arrest will yield an allegation of police misconduct and a resulting federal court review.

Taxpayers will be exposed to punitive damage awards ranging perhaps into the billions of dollars. No police department could function effectively with private lawyers participating in every decision its officers make.

In short, RICO is the worst possible response to the Rampart scandal. It will make reform exceedingly difficult and long in coming; drain municipal energy, talent and financial resources from other needs; and bring paralysis to the city's police department. The lawyers who brought this case and the federal judge who has authorized it may have good intentions. But the solution they are about to inflict on the LAPD will cause vastly more damage than the problem they wish to solve.

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