Ruth E. Oscar Charles Spinosa v. University Students Co-Operative Association George Proper

with whom Circuit Judges HUG and BRUNETTI join, dissenting:

I respectfully dissent.

Congress and the President have promulgated a statute which enables people of moderate means to retain attorneys with the aid of a fee shifting provision, and recover treble damages, by suing narcotics dealers who reduce the quality of life in their neighborhood. This bounty, taken from the property of narcotics dealers, offers a benefit to induce citizens to act as private attorneys general, and offsets the burdens which might deter them from relying entirely upon the criminal justice system. Our narrow and novel construction of RICO damages vitiates the statutory scheme in an important application.

The panel’s decision, Oscar v. University Students Co-operative Association, 939 F.2d 808 (9th Cir.1991), is correct, and its correctness is strengthened by the subsequent Supreme Court decision in Holmes v. Securities Investor Protection Corp., — U.S. -, 112 S.Ct. 1311 , 117 L.Ed.2d 532 (1992). Elucidation of the traditional concepts of property, injury to property, and damages, and application of those concepts to the kind of harms claimed in this case, requires that the lawsuit be permitted to…

Plaintiffs Ruth Oscar and Charles Spinosa (collectively Oscar) rented apartments in Berkeley near Barrington Hall, a student co-operative run by defendant University Students Co-Operative Association (USCA). Angered by a wide range of un-neighborly behavior on the part of Barring-ton residents, including drug dealing, Oscar sued USCA and all the residents of Barrington Hall. Oscar claimed that the activities of Barrington residents collectively violated the Racketeer Influenced and Corrupt Organizations Act (RICO), and sought treble damages under 18 U.S.C. § 1964 (c). The district court dismissed the complaint for failure to state a claim. A three judge panel of this court reversed, Oscar v. University Students Co-operative Ass’n, 939 F.2d 808 (9th Cir.1991), and we agreed to rehear the case en banc. Oscar v. University Students Co-operative Ass’n, 952 F.2d 1566 (9th Cir.1992). We affirm the district court’s dismissal of the complaint.

I.

According to the factual allegations of plaintiffs’ complaint, Barrington Hall residents collectively agreed at a house meeting to allow drug dealing at Barrington. At least nineteen different individuals within the co-operative sold drugs…

965 F.2d 783 60 USLW 2789 , 75 Ed. Law Rep. 782 , RICO Bus.Disp.Guide 8020 Ruth E. OSCAR; Charles Spinosa, Plaintiffs-Appellants, v. UNIVERSITY STUDENTS CO-OPERATIVE ASSOCIATION; George Proper, et al., Defendants-Appellees. No. 90-15750. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc Feb. 20, 1992. Decided June 4, 1992. Donald P. Driscoll, San Francisco, Cal., for plaintiffs-appellants. Ephraim Margolin, Margolin, Arguimbau & Battson, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before: WALLACE, Chief Judge, and HUG, SCHROEDER, ALARCON, POOLE, D.W. NELSON, BRUNETTI, NOONAN, THOMPSON, RYMER, and KLEINFELD, Circuit Judges. D.W. NELSON, Circuit Judge: 1 Plaintiffs Ruth Oscar and Charles Spinosa (collectively Oscar) rented apartments in Berkeley near Barrington Hall, a student co-operative run by defendant University Students Co-Operative Association (USCA). Angered by a wide range of unneighborly behavior on the part of Barrington residents, including drug dealing, Oscar sued USCA and all the residents of Barrington Hall. Oscar claimed that the activities of…