Turning the Tables

Police have made a number of arrests and seizures of DJ equipment at underground parties and clubs. Is it enforcement or harassment?

There's a long list of crimes that fall under racketeering, Webb says, and he believes that what the police and the ABC have done fits the bill. Arresting Magallon unfairly, Webb suggests, counts as kidnapping. Interfering with the sale of a liquor license from one nightclub owner to another who's from New York? That could be interference with interstate commerce.

Using RICO is a dramatic move, but that's part of the goal: Webb wants to catch the city's attention.

Suing San Francisco with a statute designed for the Mob isn't quite as strange as it might seem. RICO has been used against big tobacco companies, antiabortion protesters, and the alleged collusion between Microsoft and Best Buy. In 2006, the Supreme Court let stand a U.S. Ninth Circuit Court of Appeals ruling that allowed a plaintiff to use RICO to sue the Los Angeles Police Department as a racketeering organization.

That lawsuit, part of the aftermath of the LAPD Rampart scandal, in which police officers allegedly took kickbacks from drug dealers, planted false evidence and used it to obtain convictions, and conducted beatings and shootings, was eventually settled by the city out of court.

"Unusual uses of the RICO statute are, in a certain way, maybe the norm," said David Slansky, chairman of the Berkeley Center for Criminal Justice. "This is a statute that has been used throughout its history in lots of way that the original backers may not have had in mind."

Rory Little, a professor at UC Hastings who has taught federal criminal law for 21 years, was more skeptical about the merits of a theoretical RICO case against government enforcement agencies. "The reality is that RICO has been abused by plaintiffs for many years," he says. Lawyers often file RICO cases to get leverage in making a settlement or to attract attention, he said, "but nine times out of 10, civil RICO suits end up being dismissed."

A serious RICO suit against a government agency, Little said, might include patterns of bribery or criminal assault — but not, for instance, police arrests that may or may not be lawful. "It's a sexy claim," he continues, but "usually it just ends up being a dispute about business practices or enforcement practices."

Webb conceded that the fact that there was no evidence that the alleged harsh police tactics were linked to bribery or kickbacks made the RICO angle trickier, but he said he believed it was still an appropriate use of the law. He said it was also possible that a federal prosecutor might even be interested in picking up the case, depending on the reception of the media publicity around the planned lawsuit.

Meanwhile, the complaints against Bertrand and Ott may be having an effect. Over the past couple of weeks, club sources say the pair has gone on the down-low. Their weekly visits to DNA and Mist have stopped. Their last bust was clearing out Butter for being over capacity on Feb. 19. Since then, club staff say the two haven't checked in on any of their usual suspects on 11th Street.

Vladimir Cood, owner of Butter, speculated that the media attention has driven Bertrand and Ott underground. The last time Cood spotted Ott and Bertrand driving down 11th Street was in late February. They were driving in their unmarked car. They didn't even slow down, he said; he saw their faces briefly, and then they rolled on by.

In an earlier version of this story, the writer mistakenly attributed a statement to Robbie Kowal of Mojito about a rumored meeting between Police Chief George Gascón and Entertainment Commissioner Terrance Alan. Mr. Kowal's last name was also misspelled. We regret the errors.
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