Oakland fire: Legal experts say criminal charges are a givenBy Angela Ruggiero | aruggiero@bayareanewsgroup.com and Malaika Fraley | mfraley@bayareanewsgroup.com
PUBLISHED: December 6, 2016 at 6:25 pm | UPDATED: December 7, 2016 at 6:51 am
OAKLAND — As investigators in hazmat suits sort “bucket by bucket” through the charred debris of the Ghost Ship warehouse fire in search of clues as to how and why 36 people’s lives were lost, legal experts say it’s almost certain someone will be criminally charged no matter what the cause.
But
holding the city liable for civil claims stemming from the tragedy may be nearly impossible, even if evidence grows that it failed to act on warnings about the Fruitvale district warehouse, experts say.
Most victims in Friday night’s inferno were trapped on the second floor of an over-cluttered warehouse that was being illegally used as a residential and event space — and featured a staircase essentially made of firewood.
“I would be surprised if some kind of charges weren’t filed, at least manslaughter, potentially second-degree murder. Obviously this was gross negligence to allow this to occur in light of everything, all the circumstances that were going on,” said Brian Panish, a well-known civil attorney based out of Los Angeles.
Alameda County District Attorney Nancy O’Malley has not commented on the targets of her agency’s investigation, but they clearly
include the building owner, Chor Ng, and warehouse master lessee and operator Derick Ion Almena.
Ng’s family has said she didn’t know that anyone was living at the warehouse, though that’s no legal excuse, attorneys said. Almena was operating it as a residential artist collective dubbed Ghost Ship and collecting rent from other tenants. He rented it out for a party on Friday night while he stayed with his wife and children in a nearby hotel.
Clearly distraught on NBC’s Today show on Tuesday morning, Almena, 46, refused to answer whether he should be held liable. Almena, Ng, anyone associated with throwing Friday night’s event and anyone associated with dangerous structures in the building are potential defendants, attorneys said.
San Francisco attorney Michael Kelly said investigators would want to know the origins of the second floor and who built the staircase.
“Here we have the grossest and most reckless forms of carelessness and negligence,” said Kelly, who represents the victim families and survivors of the 2015 Berkeley balcony collapse in an ongoing civil lawsuit.
“From the pictures I saw, this looked like a huge garage sale about to take place with all the furniture, debris, artist supplies and other things that were in there,” Kelly said. “You probably couldn’t have built or arranged an equally flammable place. It kind of was a disaster waiting to happen.”
Robert Weisberg, co-Director of the Criminal Justice Center at Stanford Law, added that “it’s hard to believe there isn’t criminal negligence here at the very least.”
“It is theoretically possible to prove murder. I don’t think anyone thinks it’s an intentional crime,” he said, “ … but it’s possible it could constitute second-degree murder.”
Second-degree murder is an unpremeditated killing, and can be the result of dangerous conduct and lack of concern for human life. Authorities could recreate what the building looked like inside before the fire, and “the case might make itself,” Weisberg said.
David Levine, a law professor at UC Hastings, said the level of charges and the difference between a manslaughter charge and murder charge depend on what people knew and when they knew it.
Other potential charges that defendants could face include more regulatory offenses, such as the warehouse not having permits to operate as housing or to hold large events, Levine said. Misdemeanors such as reckless burning or public nuisance could also be charged, Weisberg said.
The city of Oakland, which has been criticized for a failure to act on safety and code enforcement complaints at the warehouse, won’t be held liable because of protections written into state law, said Kelly.
“You cannot sue a public entity for failing to enforce the law, for failing to provide police or fire protections, for failing to do timing inspections, for failing to enforce the zoning laws, not properly acting on complaints,” Kelly said.
Panish said holding the city liable in civil court would be an uphill battle but is not insurmountable.
“It’s going to be a decision that a judge will make, whether that immunity applies, but clearly had they done their inspections and shut the building down, none of this would have happened,” Panish said.
Kelly disagrees, calling the immunity laws “ironclad.” He pointed to the 1991 Oakland firestorm that killed 25 people. There was no water in some of the fire hydrants and some of the roads weren’t accessible to fire trucks, but the city was not held liable.
“As harsh as it is, the courts have no problem whatsoever throwing these cases out,” Kelly said.
http://www.eastbaytimes.com/2016/12/06/oakland-fire-legal-experts-say-criminal-charges-are-a-given/
