Thursday, August 11, 2011

A Tale of Two Friends, Justice and Mercy

CityWatch, Aug 12, 2011
Vol 9 Issue 64

CITY ATTORNEY’S SELECTIVE PROSECUTION - My good friend Jenny is a cyclist, an intrepid citywide commuter who relies on her bike as her primary form of transportation, complementing it with mass transit for long journeys. In some communities, this behavior would be referred to as a traffic congestion solution.

Earlier this year Jenny was in the North Valley, riding downhill on a busy street in traffic when a tow truck loaded with two vehicles came from behind, began passing on the left and then turned into Jenny and another cyclist, Piero, forcing them off the road. Jenny felt that the tow truck driver’s behavior was aggressive, even road rage worthy. But mostly she felt thankful to be alive.

Jenny and Piero continued down the road, through fairly significant traffic congestion, the type that sometimes bottlenecks and slows down large tow trucks. This was bad for the tow truck operator and even worse for the cyclists.

Over the next half mile the tow truck operator came up on the cyclists again, again, and again. Four times he “buzzed” them, forcing them to give up their position on the road by pulling alongside and then turning toward them.

Jenny photographed the tow truck operator and his truck from the sidewalk. She then called the police, only to realize that they were standing outside the local LAPD station. Jenny and Piero filed a report and they went on their way.

Months went by and a detective from Foothill Division called. The interview went well and Jenny was encouraged. More months went by and Jenny was called in to identify the suspect in a line-up. Jenny was really encouraged.

Then the day of reckoning came and Jenny was called in for a meeting with the City Attorney’s Hearing Officer, Ben Lovato, who interviewed the suspect and the victims and decided that this was a “no harm, no foul” case that was not worth prosecuting.

In other words, when a tow truck operator engaged in the City of LA’s business uses a heavy truck laden with two more vehicles to repeatedly threaten the lives of two cyclists, the City Attorney doesn’t see any reason to prosecute for Assault with a Deadly Weapon. After all, the victims are still riding!

Justice denied.

I have another good friend, Maria, a homeowner who invested in a residential property in East Hollywood, a densely populated park-poor community that is low-income and high-crime. Her home is well-maintained, as are the other 19 homes on her street, 15 of which have front yard fences that are a few inches over the city’s 3 foot 6 inch limit.

Earlier this year, Maria was cited by the City of LA’s Building & Safety Department for her fence. She was singled out because a resident of LA complained. Building & Safety reports that they are bound by code to investigate every time there is a complaint.

On a street where 80% of the residents have over-in-height fences, the inspector only cited the homes that were subjects of complaints, in essence empowering the complaining party to decide where the City of LA’s code would be enforced.

Maria and her husband were given a choice: either remove the offending fence (masonry pilasters with wrought iron panels, approximately 4 feet 6 inches tall) at a cost of thousands or keep the fence and pay for a variance that costs $4800.

The citation came with a $336 penalty and a demand for compliance within 30 days and a notice that failure to pay the non-compliance fee within 30 days of the mailing could result in a late charge of 200% plus a 50% collection fee.

The ubiquitous nature of front yard fences throughout the City of LA made it hard for Maria to understand why her fence had attracted the interest of City officials, especially in light of the fact that her fence did not create a public safety issue. In fact, it’s Maria’s contention that her fence is consistent with the overall style of the homes on her street and that it enhances public safety.

Regardless, Maria didn’t find an audience for her position, nor did she navigate the City Hall bureaucratic maze successfully. She failed to find relief and she failed to demolish her fence resulting in a whole new level of city oversight.

Maria’s order to comply ended up in the City Attorney’s office which is the third largest government legal office in California, behind the Attorney General’s office and the LA County District Attorney’s office. 500 lawyers are supported by 500 staffers and in Maria’s case, it was a staffer from the finance department who ended up in control of her case.

The City Attorney’s office sent Maria a Final Notification that threatened punitive actions including “seizing property, attaching wages, and additional legal actions.”

Mercy denied!

So much for the “no harm, no foul” strategy that the City Attorney employs when somebody’s life is threatened. A tow truck operator who spends his days impounding cars (another revenue opportunity for the City of LA) can’t be taken off the road simply for using his vehicle as a weapon. After all, a man has to work!

But when a homeowner builds a front yard fence to protect their proerty, their home and their family, it's perceived as a challenge to the authority of the City of LA, and that is a crime that will get a City Attorney response.

There are two relevant twists in this “Tale of Two Friends” and they both speak to the City Attorney’s choices, failing to prosecute in assault case and aggressively pursuing in the fence case.

A couple of years ago, Dr. Christopher Thompson was sent to jail for his road rage violence against two cyclists in Mandeville Canyon. During the trial, it came out that this wasn’t the first complaint against him, it was simply the first incident prosecuted. Dr. Thompson, just like the tow truck operator, had been accused of running cyclists off the road in the past but the City Attorney declined to prosecute. It took the County’s Deputy Attorney to bring Dr. Thompson to justice.

24 years ago, the City Attorney’s office was in court with an over-in-height fence case that was subsequently dropped when the City Attorney explained that such walls have become common in the city. At that time, the City Attorney’s office indicated that it will only prosecute “emergency situations” involving privately owned fences that are public-safety hazards.

Deputy City Attorney Theodore Heyck, in the 1987 Rubicant case, noted the prevalence of over-in-height fences and stated "If we file against her, we file against everyone in the neighborhood. Does the city wish to proceed against an entire neighborhood? Against a large segment of the city?"

City Prosecutors went on to call for an overhaul of the enforcement of current fence-height regulations by the city's Department of Building and Safety, a sentiment that was echoed by Van Nuys Municipal Judge Kenneth Lee Chotiner who heard the Fabricant case and noted the need to review the standards that guide prosecution.

It’s 2011 and City Attorney Carmen Trutanich has argued long and loud that the City’s budget cuts have eviscerated his department, making it hard for him to prosecute criminals while fulfilling his City Charter mandate of advising the Mayor, the City Council, and all boards, departments, and officers in the City of Los Angeles.

And yet...the City Attorney can find the time to pursue over-in-height fence citations.

That was then and this is now.

All Jenny wanted was some justice but the City Attorney has failed her.

All Maria wants is some mercy but the City Attorney has failed her.

Apparently, when the focus is on revenue, there’s no room for either justice or mercy.

That’s no way to run a Great City!

(Stephen Box is a grassroots advocate and writes for CityWatch. He can be reached at:

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