San Francisco District Attorney Chesa Boudin’s decision last week to pursue felony looting charges for a recent wave of organized retail theft across the city is a legal gamble that may require his office to prove the crimes were the result of the coronavirus pandemic.
Looting — for which Boudin charged nine people who were arrested in connection with burglaries at the Louis Vuitton and other Union Square retailers, a cannabis dispensary and a Walgreens on Nov. 19 — is an offense under California law that encompasses grand theft, petty theft and burglary during a state of emergency or evacuation order resulting from a natural or man-made disaster, such as an earthquake, fire, flood or riot.
California has been under a state of emergency for the pandemic since March 2020, and Gov. Gavin Newsom recently extended the order through the end of next March. During that time, district attorneys across the state, from Stanislaus to Mendocino counties, used the looting statute in at least a handful of cases during the early days of the stay-at-home order last year, and again months later amid the civil unrest that followed the murder of George Floyd.
But as the COVID-19 emergency, which Boudin cited as the basis for the recent charges, stretches toward two years, his filing strategy is entering uncharted territory where it is likely to encounter a legal dispute over the very definition of looting.
“The rationale behind this criminal statute is to protect property during times when there is so much chaos going on, where individuals can take advantage of that and commit theft offenses they wouldn’t otherwise commit because they wouldn’t be given the opportunity,” said Nadia Banteka, an assistant professor of criminal law and criminal procedure at the University of the Pacific’s McGeorge School of Law.
The prolonged nature of the pandemic could make it more difficult to directly relate these burglaries to the state of emergency, Banteka said, though it will be up to the jury to decide whether prosecutors establish a compelling link — or whether they even need to make that connection.
“The key question here,” she said, “is whether … any burglary, grand theft or petty theft that takes place contemporaneously to that state of emergency will also count as looting, or whether you need something else.”
Rachel Marshall, a spokesperson for Boudin, did not respond to questions about whether the San Francisco District Attorney’s Office has established a particular tie between these crimes and the pandemic, or if it believes the looting statute has more general application. She said the office does not have a policy for filing charges under the law and does so at its discretion.
“Since the pandemic and the emergency orders issued, we have used that statute sparingly in cases involving large-scale group thefts,” she said in an email, including “at least a dozen this year.”
Across the bay, however, the Contra Costa County District Attorney’s Office developed guidelines last year to standardize when it pursues looting charges. The policy requires prosecutors to determine whether a theft was “substantially motivated by the state of emergency” and if there is a “reason why another statute wouldn’t adequately address the particular incident.”
District Attorney Diana Becton said the guidelines were the result of a ruling by a local superior court judge in summer 2020. After her office charged people with looting amid the Floyd protests, Becton said, the court determined that their alleged crimes did not relate to the coronavirus pandemic state of emergency that was used to justify the filings.
A representative for Becton said the judge did not issue a written opinion and could not provide further information on the ruling or the cases involved.
As a result, when a Walnut Creek Nordstrom store was ransacked the same weekend as the string of mass retail thefts in San Francisco and other Bay Area cities, the Contra Costa County District Attorney’s Office decided not to pursue looting charges.
“We don’t believe there is a significant nexus to a state of emergency that would allow us to establish looting charges,” Becton said. “Based on the facts that we have for this particular case, we did not believe that was a charge that we could successfully defend.”
Malls and major stores in Hayward, Oakland and San Jose were also targeted in group burglaries during the third weekend of November.
Alameda County District Attorney Nancy O’Malley is still reviewing charges for those incidents, spokesperson Angela Ruggiero said, but her office has charged 73 people with the same looting offense as Boudin is citing — committing a burglary during a state of emergency — during 2020 and 2021.
A handful of those cases date back to April and May 2020, when people allegedly broke into businesses closed by pandemic shutdown orders. But the vast majority appear to be related to looting during the Floyd protests, with prosecutors often citing a local emergency order because of the civil unrest. Only four were filed in 2021, none since June.
Santa Clara County District Attorney Jeff Rosen declined to comment.
Boudin, who faces a recall election in June, is under tremendous pressure to crack down on the surge in retail theft — even from Newsom, who at a recent news conference called on local officials to “step up” and get tough on these incidents.
“These people need to be held to account,” Newsom said. “We need to make an example of these folks.”
Newsom’s office declined to comment on whether he approved of Boudin’s strategy of pursuing prosecution of the crimes as looting.
A felony conviction carries a penalty of up to three years’ imprisonment, and unlike the underlying theft offenses that suspects were also charged with, such as second-degree burglary, there is a minimum sentence of 180 days in jail. Piling on additional charges can also be a strategy for prosecutors to pressure a suspect into accepting a plea deal.
Marshall, the spokesperson for Boudin, said politics did not factor into his charging decision.
“We have filed these charges before; doing so in this case was not related to any kind of pressure,” she said. “This was organized theft during a pandemic, and was alleged to have involved up to 40 people.”
Alexei Koseff is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @akoseff
https://www.sfchronicle.com/politics/article/Why-Boudin-s-decision-to-pursue-looting-charges-16663553.php