OAKLAND, Calif. — Despite nearly seven years in prison for an attempted murder he did not commit, Ronald Ross cannot take an Oakland police sergeant to trial for malicious prosecution, a federal judge ruled Tuesday.

U.S. Magistrate Judge Maria-Elena James granted summary judgment to the City of Oakland and Sgt. Steven Lovell. Ross claimed Lovell coerced a witness to identify him as the shooter, maliciously prosecuted him, and failed to turn over exculpatory evidence.

Oakland City Attorney Barbara Parker praised the ruling.

“Mr. Ross’s experience is tragic, as evidenced by the Alameda County Superior Court’s overturning of his conviction for attempted murder and release. However, Federal Magistrate James affirmed that the City of Oakland is not responsible for the violations he asserts,” Parker said.

She said the judge “specifically found that Officer Lovell’s investigation and other actions did not prejudice Mr. Ross at his criminal trial, nor did the city’s policies and procedures or city officials’ actions cause his injuries.”

Ross was exonerated in February 2013 for the 2006 shooting of Renardo Williams. He was serving 32 years to life.

Ross said he was convicted because of a faulty photo lineup and police coercion. He claimed that Williams, the victim, told Lovell that none of the suspects in the photo lineup had shot him, but Lovell silently indicated that Williams should identify Ross.

Williams later signed a declaration under penalty of perjury that he told Lovell he picked Ross because he felt he owed Lovell a favor.

After this declaration was submitted to court, with other exculpatory evidence, Ross’s conviction was overturned and he was released from prison.

The city said that Williams subsequently renounced his statements about being coerced and in a more recent interview with the Alameda County’s District Attorney’s Office stated that he still believed Ross to be the shooter.

Ross acknowledged he was unable to find Williams to testify at trial or to provide additional evidence for the summary judgment stage, Judge James said.

She found that Williams’ declaration would not be admissible in a civil trial against Lovell and the city, as many portions of the document lack foundation.

“There is no description about how Williams knew Lovell allegedly wanted him to identify Ross’s photo other than the statement that Lovell ‘silently indicated’ this to Williams. From the description in Williams’s declaration, there is no evidence that Lovell made any actual verbal communications or gesture or other motion, and for all the court can deduce from this declaration, Williams might be saying that Lovell telepathically sent him this message,” James wrote.

Without knowing why Williams believed that Lovell wanted him to pick Ross, the court cannot appropriately put this evidence before a jury, the judge said.

“The same is true for Williams’s statement that he identified Ross because he owed Lovell a favor – there is no foundation for Williams’s and Lovell’s pre-existing relationship or why Williams believed he owed Lovell a favor,” James ruled.

Williams’s declaration is hearsay, not covered by an exception to the hearsay rule based on the reasoning that his statements were so contrary to his own interests that he would not have made them unless they were true, James found.

By making the statements indicating that Lovell induced him to lie about Ross being the shooter, Williams “might well have thought he was saving himself from blame rather than putting himself at any risk of criminal liability. In a sense, accusing Lovell of misconduct appears to excuse Williams’s false testimony,” James wrote.

Because the statements lack foundation and the city has never had the opportunity to cross-examine Williams, the declaration is not admissible at trial and cannot be considered at summary judgment, the judge said.

Without the Williams declaration, Ross has no evidence to show there was a genuine dispute to put forth to a jury on his malicious prosecution claim against Lovell.

Ross does not dispute that Alameda County prosecutors independently reviewed the evidence and investigated the case themselves before determining that it could move forward, nor does he dispute prosecutors’ assertion that Lovell never pressured them to prosecute Ross.

“Furthermore, the evidence presented indicates that Lovell disclosed potentially contradictory evidence to prosecutors, including writing in his police report that Williams had told him the shooter was bald, despite Ross’s picture from the lineup showing him with hair,” James ruled.

“This indicates that Lovell did not manipulate the evidence before the prosecutors but actually exposed a basis for which the prosecutors might have questioned Williams’s identification of Ross as the shooter,” the judge added.

Because Ross cannot show that Lovell’s actions caused him injury, he cannot allege that any constitutional deprivation was the product of any city policy, so the city is also entitled to summary judgment, James said.

City Attorney Parker credited Supervising Deputy City Attorney David Pereda with “skillful and sensitive crafting of the city’s motion and oral argument.”

Ross’s attorney did not immediately respond to a request for comment.

This story written by Elizabeth Warmerdam for Courthouse News

A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant.

The ruling by U.S. District Judge Lee Rosenthal, which was made public late Monday,  heads off a potentially embarrassing civil trial that was supposed to start early next month at the federal courthouse.

Andy Vickery, a lawyer representing trucking company,  said he was floored by the ruling.

“She is basically saying you can’t sue the feds,” he said by phone.

And he emailed this reaction:

A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys.   He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out.   The bad guys outwit the cops.   Your company’s driver is killed.   Your truck is riddled with bullet holes.

 Query:   is our federal government liable to pay for the damages to you and your property?

 Answer:   Nope. 

He said an appeal is already in the works.

Trucking company owner Craig Patty has said that the truck was used and damaged in a drug sting against one of Mexico’s most violent cartels without his permission and that his family lived in extreme fear they would face retaliation from the cartel, even though they had no idea what the government was doing.

They sought up to $6.4 million. Patty had said from the start his main goal was to shed light on the case and have the facts be known publicly.

Officials have declined to discuss what, if any, compensation has privately been paid to the family of the deceased truck driving informant, Lawrence Chapa, who was working for a DEA task force that included federal agents as well as local law-enforcement officers.

With Rosenthal’s ruling, the government isn’t liable to damage to the truck, which was left sprayed with bullet holes and its cab that was splattered with blood.

Back in November 2011,  A DEA task force was supposed to be watching truck driver Chapa from the ground and the air as he delivered a load of marijuana fresh from the Rio Grande Valley to Houston. The plan was for Chapa to take them to where the load was to be delivered and arrest cartel members there.

But as the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck.

In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster.

The truck’s driver was killed and four attackers were arrested and charged with capital murder.

Patty’s truck was impounded and later released to him, but was out of service for months. The DEA refused to pay for the damages, as did Patty’s insurance company, which ruled that the truck had been used in a criminal act, and therefore the damages weren’t covered.

Patty had argued that he and his family lived through extreme emotional distress after fears that the cartel would come after them for some perception they had been complicit with police.

He also said that losing the truck for nearly 90 days after it had been damaged nearly crippled his business, which only had two trucks at the time.

Fred Shepherd, who worked with Vickery on the case said his client is astonished that he has no recourse.

“It is not just that you can’t sue the federal government., but that fed law enforcement agencies under this ruling can use anybody’s property to do anything they want to further their law enforcement mission and  not have to go get the permission from the owner of the property to do it.”

Patty vs DEA Lawsuit