Maricela Félix desperately wants to forget the afternoon, over a year and a half ago, when James Oliver Huberty turned a McDonald's restaurant in San Ysidro into a bullet-riddled cemetery. But she can't.
Her husband, Astolfo Félix Cejundo, has a bullet in his skull. Their daughter, Karlita, a newborn injured despite her parents' efforts to protect her from the July 18, 1984 shooting, has undetermined neurological damage. The pain in Maricela's paralyzed left side and the blindness in an injured eye keep her from forgetting.
Neither are the lawsuits in State and Federal Courts, filed by Félix and more than 60 other victims of the tragedy or survivors of the death in the belief that someone was responsible, that someone should compensate them for their tremendous loss.
Announcement
Lawyers announced the dismissal of the first lawsuits two weeks after the McDonald's massacre. Nineteen months later, the litigation is still in its early stages. And Maricela Félix is tired of that.
“I am no longer interested in pursuing the process,” she said last week. "It ended up being a lot of headache and a lot of problems."
She interrupted an interview quickly. "Talking about the process can only bring back the pain."
Felix's frustration is shared by other victims of Huberty. They promised quick deals, or perhaps they misunderstood a complex legal system that is conducted in a language, English, that many of them don't speak, complain about unresponsive lawyers and unrealized expectations.
What's more, unlike survivors of other disasters — plane crashes, fires or building collapses — these victims have little chance of winning the lawsuits they've pinned their hopes on, according to lawyers familiar with the litigation.
Lawyers say the lawsuits test credibility with their allegations that McDonald's Corp., the San Diego Police Department, emergency telephone operators, a television news helicopter, the editor of a newspaper related to weapons and drug dealers Uzi gunsmiths share responsibility for Huberty's dire results. uproar. Etna Huberty, the killer's widow, is also charged, though lawyers for the victims say they doubt she can pay damages.
“The best defendant is the deceased, Mr. Huberty, and there's no money in there, so the question is, 'What do they do?'” said Jon Miller, a lawyer for Shotgun News, a weapons expert. The trade publication has recently been found defendant in some of the cases. The answer? “Everybody got sued,” Miller said.
Meanwhile, social workers say the lawsuits are keeping alive the guilt, pain and search for explanations of the inexplicable for the massacre survivors that long hours of counseling tried to contain.
“One of the hardest things was getting these people to understand that there was no reason for this to happen, that he was a madman who did something crazy,” said Andrea Skorepa, director of Casa Familiar, a social services agency in San Ysidro that He had contact with most of the victims. Litigation, he said, “has made this point more difficult to understand. And that made them feel more vulnerable.”
Still, the processes are moving slowly. Both in State and Federal Courts, virtually all defendants are fighting to be removed from the proceedings, arguing that, by law, they are not to blame for the tragedy. The discovery process will follow, a thorough exchange of documents and records. Lawyers say the cases, if allowed, could still take two years to trial.
Without the lawsuits, the only relief for survivors is the $1.5 million distributed by a non-profit fund, mostly for out-of-pocket expenses.
With the lawsuits, the victims' lawyers say, they can orchestrate facts that will overcome the public doubt that anyone other than Huberty, who left no money, should pay for the victims' losses.
“These are very, very difficult cases,” said Federico Sayre, an attorney whose Santa Monica law firm represents 33 of the Huberty victims. "This will have to be fought until the end."
There are 13 lawsuits stemming from the McDonald's massacre ongoing in San Diego courts. Together, their allegations paint a picture of corporate negligence and municipal ineptitude that sets the stage for Huberty's reign of terror and exacerbates it once it begins.
According to the victims' lawyers, the main defendants, both in terms of their alleged share of responsibility and their ability to pay, are McDonald's Corp. and the city of San Diego.
The lawsuit against McDonald's and its San Ysidro franchisee is straightforward. The lawsuits say McDonald's knew of the potential risks to employees and customers at its restaurant at 522 W. San Ysidro Blvd., but did nothing to alleviate them. This negligence, the victims allege, makes McDonald's and its insurers liable for their losses arising from Huberty's act.
Against the city, the accusations take two directions. First, victims question the performance of the police Special Weapons and Tactics (SWAT) unit, which they say failed to stop Huberty's indiscriminate shooting until a gunman killed the 41-year-old unemployed gun collector more than an hour after the police arrived at the scene. . scene.
Some of the lawsuits also allege that mistakes made by emergency 911 operators delayed the police response.
McDonald's and its lawyers declined to discuss the claims, but in court documents the company has denied any responsibility for the massacre, saying McDonald's could not have prevented or prevented Huberty's actions.
A San Diego County Superior Court judge has already dismissed charges against San Diego police in several of the cases, ruling that the city is immune from lawsuits challenging the high-pressure judgments of its officers. A hearing has been set for Feb. 18, at which the decision could be extended to more cases.
"We certainly feel that we bear no responsibility in this case," said the assistant city attorney. Les Girard. “We are doing everything to defend the city in the lawsuits.”
However, the victims' lawyers insist that the motives for the lawsuit against McDonald's and the city are stronger than it might seem at first sight.
They allege that McDonald's ignored the relatively high crime rate in San Ysidro, including serious crimes in or near their restaurant in the months prior to July 1984. They note that police records show that there were 13 serious crimes on the block where it was located. . restaurant in the first three months of that year, including a battery and theft.
Lawyers also rely on an affidavit from Wilbert W. Holley of San Diego, who tried to sell a private security program to McDonald's San Ysidro about two months before the massacre.
Holley, a convicted felon who has worked as an undercover investigator for state and federal agencies, testified that restaurant employees told him that management had denied previous security requests.
But Holley said a McDonald's manager in Los Angeles also turned down his offer of uniformed guards, saying they were unnecessary, although Holley told them that other fast-food restaurants in San Ysidro had taken safety precautions.
"It is my opinion that the use of security at that location would have acted as a deterrent and possibly could have prevented the incident," Holley testified in her statement.
According to the victims' lawyers, Holley's previous crimes and offering security services put McDonald's on high alert about a hazard at the restaurant, making it what Sayre calls "one of the most serious cases of poor security." . ". visa."
Lawyers say the lawsuit against McDonald's is simply a more dramatic version of lawsuits seeking to hold a mall accountable for burglaries in its unguarded parking lot or a responsible owner when a criminal sneaks through an open door to commit a crime in a apartment building. runner.
California courts over the past decade have consistently ruled that companies are liable in such circumstances, according to Marc Franklin, a professor at Stanford Law School with a background in accident law. In the San Ysidro cases, he said, the issue will be whether a jury can be convinced that McDonald's ignored clear warnings and then failed to take reasonable precautions to protect its customers and employees from harm.
“There are so many leaps of faith that seem to be involved in the processes,” Franklin said. "It's a matter of what they should have done before what, and then the chance that they did something."
Lawyers for the victims claim that McDonald's, by the nature of its business, has created an above-average expectation of safety among its customers.
“It's very likely that we would start a franchise operation with the idea that it would be safe, rather than an unfamiliar location,” said San Diego attorney David Korrey, whose firm represents 23 victims. "It's part of the whole franchise concept that McDonald's is known for, and McDonald's does a really good job."
As for the city, lawyers for the victims say their initial investigation found that the police response was hampered by poor planning. Among the allegations: SWAT team members did not have keys to their trucks; that a commander stuck in a traffic jam on the way to San Ysidro rescinded an order from an officer on the spot; that delays in shooting Huberty needlessly added to the carnage.
“They let this go on and the damage once this started was magnified, probably tenfold,” Korrey said, echoing criticism voiced by survivors in the immediate aftermath of the massacre.
An internal review by the Police Department concluded that officers handled the tragedy correctly. Investigators said it's possible Huberty killed all of his victims within minutes of arriving at the restaurant.
However, in October 1985, the department established a "special response team" within the SWAT unit to increase its ability to handle hostage situations.
"Obviously the McDonald's incident was a contributing factor," said SWAT commander Lieutenant Dan Berglund.
Some of the other defendants have less obvious links to the San Ysidro tragedy:
- Victims sued San Diego County, the State of California, Pacific Bell and AT&T; Communications for its role in operating the 911 system. Korrey has removed the phone company from its cases, and Sayre said he is inclined to dismiss it as well, acknowledging that the case against Bell is weak. Meanwhile, a judge excluded the state from several of the lawsuits, ruling that it had no responsibility for 911 operations.
- KGTV Channel 10 and the company that operated their “Sky-10” helicopter were also dropped from some of the cases. Victims claimed that the helicopter flew too close to the McDonald's during the SWAT action, interfering with police communications. Channel 10 produced documents denying any responsibility for the massacre and saying that its reporters' actions were in any case drawn from constitutionally protected news.
- Korrey's case against Action Arms Inc., an American distributor of Israeli-made Uzi semi-automatics, one of the weapons used by Huberty in his rampage, is pending in US District Court.
In what he considers the newest charge in any of the massacre cases, Korrey is trying to convince US District Judge Rudi Brewster that the Uzi, which serves no purpose other than killing and maiming people, is inherently a defective product and that the parties that made it available to Huberty are responsible for the foreseeable effects of its use.
Korrey wants Brewster to follow the precedent of a recent court ruling by the state of Maryland, which found that so-called "Saturday night specials" were inherently defective products. Lawyers for Action Arms say California law specifically prohibits holding gun manufacturers and dealers liable for the misuse of their products.
At a hearing last month, Brewster was not swayed by the victims' arguments.
“As incendiary as this case is, this court will interpret the law as it exists, not as you and I think it should be. I will not legislate national gun control and exercise ex post facto law on this company,” he said.
“You seek compensation for a shocking massacre. And I don't think I can do that with these claims of product defects," Brewster said, urging Korrey's company to overhaul its process. "The problem is, nothing was wrong. Everything worked."
Even many lawyers for the plaintiffs, lawyers whose bread and butter represent victims of accidents and negligence, say San Ysidro's lawsuits may go too far. Major San Diego law firms dismissed the victims' cases. The chances of winning were slim, they concluded, and McDonald's didn't deserve to see its image tarnished by far-reaching litigation.
“They didn't have any kind of warning that this could happen. There were no threats,” said San Diego attorney Brian Monaghan, who declined invitations to represent some of the survivors. “There are certain common things that an entity like McDonald's must do to protect its customers. One of them is not armed guards, barriers or German shepherds.
McDonald's positive image in San Diego, where the company's founder, Ray Kroc, and his widow, Joan, were both prominent citizens, weighed against their involvement, Monaghan said.
“Joan Kroc and her organization have done a lot for this city, and I have the overall feeling that they very appropriately and ethically handle any situation that arises,” he said. “If it was an entity that had a track record or history of unfair treatment, I would have looked again and looked further.”
Another prominent local personal injury attorney said: “We are a conservative community. . . . It's a very unpopular topic." He said the case has attracted lawyers who seem drawn to disasters, noting that Sayre traveled to Bhopal, India, in the days after a fatal gas leak at a Union Carbide chemical plant in December 1984.
Sayre, the personal lawyer for United Farm Workers leader Cesar Chavez, said the victims of the massacre were initially referred to his firm by a local UFW office. He came to Bhopal, he added, at the invitation of Indian lawyers to represent some of the city's leading citizens and has just 50 clients, compared with hundreds hired by other lawyers through face-to-face recruitment.
"I make no apologies for my behavior in Bhopal," Sayre said.
Victims' lawyers say criticism of the lawsuits is based on a lack of information about the evidence they developed against the defendants.
Korrey, who sits behind a scratched and dented desk in an office he shares with another lawyer, said: "The general public saw this as, 'This is a terrible tragedy and here are some motherfucking lawyers trying to cash in on it. that.'"
But critics become more receptive as they learn more about the case, he said. "When I can talk to people a little bit about the facts and put them in perspective, I get a less rigid point of view."
James Frantz, a San Diego attorney who filed the first massacre lawsuit and continues to work with Korrey on the lawsuit, adds that people who are suspicious of lawsuits may be biased against Huberty's victims.
“If this had happened in La Jolla and if we had some La Jolla doctors or lawyers who were killed, if they weren't mostly poor people, if they weren't Mexican Americans, that would be a different story, and it would be more acceptable to file lawsuits.” , said Frantz.
However, some of the victims and those who have worked closely with them wonder if their own lawyers have sometimes belittled survivors.
Carlos Reyes Sr., whose 8-month-old son Carlos Jr. was killed by Huberty, is represented by Sayre's office. He said last week that he was recruited by investigator César Barragán to join the demands at a meeting of survivors and promised reparations a few months after the massacre. Since then, Reyes said, he has had trouble getting information from Barragán.
“If he was doing his job well, with our interests in mind, I think he would call us more often,” Reyes said. “It is very strange that he chooses not to keep us informed.”
Barragán said he frequently travels to Mexico to get to Sayre's office and sometimes takes several weeks to return calls. But he said he kept in touch with Reyes and his family. Barragán also said that while he avoids making promises about quick litigation outcomes, the firm's clients often ignore warnings from him.
“Unfortunately, when you try to explain it, and many Latinos do, they think they're going to get rich right away,” said Barragan, who is also Latino. “They think they are going to have a lot of money in a few weeks.”
Challenges to Korrey's company's performance surfaced in December, when the company filed a lawsuit against the San Ysidro Family Survivors Fund seeking to delay a distribution of about $500,000 to victims until questions about benefits could be answered.
The fund's lawyers, who work with Andrea Skorepa and Casa Familiar, the fund's representative in San Ysidro, filed court documents alleging that seven of the firm Korrey's clients had not authorized the suit and that another victim Korrey named as a plaintiff she never hired. the firm to represent it in any litigation.
One survivor, Guadalupe del Río de Tijuana, signed an affidavit specifically telling Frantz that she wanted no part of the lawsuit against the fund. However, he was listed as the author.
“These people are essentially being manipulated by lawyers and used as plaintiffs in lawsuits they don't understand and really don't want to participate in,” said Guillermo Marrero, a lawyer for the fund.
Korrey acknowledged that his company, which rushed to seek a court order, failed to obtain signed statements from all of its customers before going to court. But he denied acting without authority and said the documents criticizing his company arose out of his clients' fear of angering Casa Familiar staff and somehow jeopardizing their payments from the fund.
“They felt they would lose out on some benefits for supporting our process, which we obviously have their support for, or we wouldn't have filed it,” Korrey said. His company was not paid to file a lawsuit against the fund, he said; he and other victims' representatives will receive a percentage of any verdict or settlement reached in the lawsuits against McDonald's and the other San Ysidro defendants.
Like other victims' attorneys, Korrey acknowledged that it has been difficult to communicate with some of his clients. Many live in Mexico, few speak English, and few have a solid understanding of the US court system.
"Some have a good understanding, and for some it's such a foreign system to them that it's blind faith and blind trust that we're going to do what's right for them," Korrey said. "It's probably not that different from what most attorneys will encounter with their clients."
Andrea Skorepa, who met most of the survivors in the crumbling bungalow of the Family Home, a few blocks from the parking lot where McDonald's San Ysidro once stood, fears that the victims' blind faith is leading them down a painful and unsuccessful path.
According to Skorepa, the very nature of the lawsuits undermines much of the efforts of social workers and counselors to bolster victims' self-esteem and strengthen their resolve to begin rebuilding shattered lives.
For example, by alleging that McDonald's and the police ignored a criminal record in San Ysidro, he said, the lawsuits stoked survivors' guilt for raising their families in a neighborhood where many would end up dying violently.
“I was asking people who have lived in a community and raised their children here to say this is a horrible, dangerous place where they should have armed guards at fast food restaurants,” Skorepa said. "All the guilt that a lot of people felt was exacerbated by people saying, 'Look at this, I shouldn't have lived in this town.'
Survivors, he adds, are just beginning to understand how long the litigation is likely to drag on and how long it will stop them from putting the carnage behind them.
"A lot of them think lawyers go there and fight it, and then they get a letter saying 'we won' or 'we lost,'" he said. "I don't think these customers are really aware of what this is going to do to them. It takes a psychological toll."
Frantz agrees that many victims have unrealistic expectations about how quickly their cases will be resolved. As for the lingering anguish, she says the pain can be the price of seeking justice in court.
“Anytime there's litigation, from a layman's point of view, it's very confusing and emotionally upsetting,” Frantz said. It's not an insensitive comment: His brother-in-law died in the Beverly Hills Supper Club fire that killed 165 people nine years ago in Southgate, Ky., and he's watched his sister suffer through the ensuing litigation.
“It's hard for anyone. They want things to be the way they were before the accident,” said Frantz. "But it's not like that in real life."
Times editor H.G. Pray, contributed to this report.