Imminent legal actions against San Francisco, its Police Department, and the California Department of Alcohol Beverage Control could reveal whether a pair of undercover agents went rogue in harassing nightclubs and aggressively busting parties or whether they were acting at the direction of top officials.
Attorney Mark Webb – whose work on a racketeering lawsuit against the policing agencies was the subject of cover stories in the Guardian and the SF Weekly – told us that on Monday, he plans to file that racketeering claim against the city (which will then become a lawsuit if the city rejects it, as it routinely does) and a related lawsuit in Superior Court involving the rough, unnecessary arrest of bartender Javier Magallon and harassment of Mike Quan, owner of The Room, Playbar, and Mist. Narrated surveillance video associated with the case was posted on YouTube yesterday.
Central figures in the lawsuit are SFPD Officer Larry Bertrand and ABC agent Michelle Ott, plain-clothes partners in an aggressive crackdown on nightlife over the last year. Webb said he plans to immediately seek police records and communications and to depose Bertrand and Ott to try to determine who ordered the crackdown, why, and when higher-ups became aware of their aggressive tactics.
“I would like to know if Bertrand is being sent places or if he’s just a lone wolf, and the CADs will show that,” Webb said, referring to computer-assisted dispatch reports that track activities and communications involving individual officers. Those and other records that Webb can access through the court-ordered discovery process could finally shed light on what’s behind the crackdown.
Webb had sought to have Mayor Gavin Newsom mediate this dispute before the cases were filed, saying the racketeering lawsuit will be expensive and divisive, and all the nightlife community really wants is an end to the harassment and assurance that it wouldn’t restart once the media attention passes. And Webb did have conversations with top Newsom aide Mike Farrah and with Nicolas King, Newsom’s liaison to the SFPD, but neither indicated that Newsom was willing to get personally involved. Newsom spokesperson Tony Winnicker also told us Newsom preferred to let Police Chief George Gascon handle the matter.
So Webb said he now plans to move forward with litigation. “If they’re not answering the call at City Hall, let’s get into the arena,” Webb told us.
Webb is an experienced litigator who has won multi-million judgments and who started his career in New York City helping prosecute Racketeer Influenced and Corrupt Organizations (RICO) Act cases against the mob, and now he plans to use RICO laws against what he says is a city-state enterprise to interfere with lawful nightlife activities in San Francisco.
“Webb gets it. It’s a weird mentality, the really good trial attorneys, and Webb is that,” said attorney Mark Rennie, who has spent decades working with the city’s entertainment industry and has helped advise Webb on the case.
Among the parties involved in the RICO claim are those involved in Webb’s other lawsuit against the city, as well as Club Caliente, its owner Maurice Salinas, Azul, its owner John Bauer, New York nightclub owners Phillipe Rieser and David Brinkley, Vessel, and Siobhan Hefferman, who was arrested by Bertrand and Ott at a private party. Others may be added soon.
Great American Music Hall, Slims, and DNA Lounge also claim to have been harassed by the ABC and have been involved in several meetings that led up to Webb’s lawsuit, but they’re not taking part in the lawsuit yet, partially because they fear retribution from the ABC.
“I probably would have jumped in, but I don’t want to walk into a hearing suing the ABC,” Slims and GAMH general manager Dawn Holliday told us, referring to Slims’ April 1 appeals hearing stemming from noise complaint citations triggered by one particularly cranky neighbor.
DNA Lounge, which has regularly documented the harassment campaign on its blog, decided to wait with the other two clubs before joining the suit. “We thought it was important to stand as a community and there were too many venues that were worried about retribution from the police or ABC if they joined the suit,” DNA general manager Barry Synoground told us.
But Synoground said he’s anxious to see what Webb’s suit unearths, noting that Bertrand and Ott haven’t been visible in recent weeks as complaints against them went public, and saying he thinks Commander James Dudley and other top SFPD brass are really driving this crackdown: “We may have taken one of his tools off the street, but he’ll find another.”
Synoground said most SFPD officers are very professional and they have no problem working with them, but Bertrand and Ott have unnecessarily and aggressively interfered with their business. Holliday goes even further in praising the SFPD, saying she has a good relationship with Bertrand and everyone in Southern Station, blaming her clubs’ troubles on the ABC and the unwillingness of top city officials to stand up for them.
So the internal SFPD communications, and those between the city and the ABC, could prove revealing. “On April 17, I can send out subpoenas to the cops and I can take Bertrand’s deposition 30 days from Monday,” Webb said, citing statutory response periods.
Webb expressed confidence in his case and said the police shakedowns and harassment fit well with the RICO statute, which has been used against a wide variety of enterprises over the years, including government agencies.
In fact, an American Bar Association book, “Civil RICO: A definitive guide,” by Gregory P. Joseph, seems to support Webb’s confidence. “Any person injured in his business or property by reason of a violation of Section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the costs of the suit, including reasonable attorney fees.’ This simple sentence has generated an avalanche of litigation,” the book begins.
It makes clear the intent of Congress that RICO laws “shall be liberally construed to effectuate the remedial purposes” of targeted individual seeking protection from harassment. A 1981 U.S. Supreme Court ruling (U.S. vs. Turkette) made clear even legitimate enterprises such as government agencies could be sued, and a 1994 ruling (NOW vs. Scheidler) settled a long dispute over whether the racketeering needed to be economically motivated, finding that it doesn’t.
Racketeering was defined by Congress as simply committing any of a long list of “predicate acts,” which include violence or the threat of violence, kidnapping (including false arrest), extortion, physical interference with business, malicious prosecution, and abuse of authority, all of which Webb says apply in his case. He is also reviewing the Guardian’s Death of Fun coverage from the last four years to find more examples of predicate acts involving the SFPD.
The hardest part of proving his case could be to show that it interfered with interstate commerce, although Webb said that’s met by efforts by Bertrand and Ott to prevent Rieser and Brinkley from transferring a liquor license from New York. But “Civil RICO” also said caselaw has established that “RICO requires no more than a slight effect upon interstate commerce,” citing the 1989 case U.S. vs. Doherty.
Like many who have had run-ins with Bertrand and Ott, Webb said he’s anxious to see what he finds in discovery: “What’s fascinating about this is you can uncover the whole system.”
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