Post Legal Editor
“Like any other Oaklander, I am appalled at watching nonviolent protest corrupted by people using tragedy to act out.” This statement from Oakland City Attorney John Russo forms the basis of his decision to assemble a team within his office to initiate civil lawsuits against those arrested as a result of the violence and destruction of property that occurred last Thursday, July 8, 2010, after the verdict in the case of The State of California v. Johannes Mehserle.
Chief of Police Anthony Batts has reported that of the 78 people arrested Thursday night, 75 percent were not residents of Oakland. The Chief, in a news conference, repeatedly described these people as anarchists. Mr. Russo noted that while neither the victim of the 2009 shooting, nor the convicted former BART police officer were from Oakland, Oakland has to pay for the damages wrought in the name of the crime.
The lawsuit, Mr. Russo says, seeks damages yet to be determined. The suit, based on nuisance law, aims, however, to recover costs for the additional police presence required last Thursday, costs incurred to the Public Works Administration for the cleanup of the streets the following morning, and costs to business owners for damages sustained in the melee. “Our office,” Mr. Russo stated, “is supportive of the peoples’ right to protest peacefully. I understand their anger.”
“Our focus,” he continued “is to prosecute that small group of people responsible for the damage they caused to the Oakland merchants.” The City Attorney emphasized that the civil action will proceed with cooperation with Alameda County District Attorney Nancy O’Malley’s criminal prosecution of the 78 people placed under arrest during the Thursday evening violence. “We are looking to complement, not to substitute for the District Attorney,” he said.
In fact, it is quite likely, due to the difference in nature of the proceedings, that the District Attorney’s criminal prosecutions will progress more rapidly than the city’s civil action. The criminal prosecutions will focus, Mr. Russo speculated, on the basic crimes: attempted arson, burglary, and looting, for example. The civil suit will focus on restitution and nuisance abatement – preventing such activity from occurring again. His team, therefore, will be reviewing photographs and videotapes of the scene, in an effort to identify even more perpetrators than those arrested. They will be looking into the possibility of filing “stay-away” orders.
Plea bargains are also a possibility in the criminal prosecutions. Mr. Russo acknowledged, however, that every guilty plea, and every conviction, would bolster his case as a civil plaintiff. In addition, while the standard of proof for a criminal conviction, is proof beyond a reasonable doubt that the defendant is guilty of the crime charged, the standard of proof in the sort of civil suit to be pursued by Russo is preponderance of the evidence – evidence that a reasonable person would conclude that the act charged is more likely than not to have occurred.
District Attorney O’Malley told the Post that she agrees with the pursuit of civil damages from the perpetrators of the Thursday night damage. Although she is seeking restitution from suspects where it is appropriate, there is a statutory cap of $12,000 on restitution associated with criminal prosecution. “There is,” she said, “the possibility of pursuing restitution in larger amounts due to the necessity of emergency services.”
District Attorney O’Malley concluded, “If [the City Attorney’s Office] has the tools to pursue in the civil arena what we cannot, we support that. We will work in tandem with them.”