A verdict or settlement against a public safety agency can be decided on the smallest of incident details—often, something we don’t see or we regard as insignificant in our initial investigation. A seemingly insignificant detail gets elevated in the public eye, or an aspect of the case stirs up emotions that are already heated in the community. And it’s not just use of excessive force cases, although those tend to get the most publicity. There are plenty of cases that demonstrate the need for officers, agency counsel and administrators to 1) watch for “red flags” that may bring scrutiny on the agency and 2) remember that we cannot expect a plaintiff’s attorney or a jury to analyze every issue the same way the experienced police professionals do.
Let’s look at a few cases to better demonstrate these two points.
Number of Shots Fired
Over the years, I was involved with a many excessive force cases in which independent investigators found the force to be justified. On several cases the number of shots fired by the officers turned out to be what raised the exposure beyond what agency leaders had originally anticipated.
One case involved multiple officers trying to arrest an armed woman who had locked herself into her bedroom. She would only open the door with her gun pointed at her head. A negotiator was brought in and it took several hours to get her to open the door and start moving out. As she walked out of the room, her gun was in her hand and pointed at her head. As she walked, the gun moved just a slight bit forward and it appeared she was going to fire at the officers. The officers fired at her and she was fatally shot. The officers in this agency had no body cams, so there were no videos involved.
The city where this occurred had experienced several highly publicized officer-involved shootings, so an immediate investigation was conducted by the state and another group. The investigation determined all the officers were justified in firing. Because of the investigation result, the city became unconcerned with this case and were unwilling to even consider keeping it out of a courtroom. The deceased was not married and had no children, and her financially struggling father was the only named plaintiff in the suit filed. It appeared they did not have a very strong relationship, so I suggested the city consider making a relatively small offer, just to see how the father responded. The city would not agree to put any money on the table, so the case eventually went to trial.
Plaintiff’s attorneys often study cases from around the country to identify aspects that may anger a jury. As the defense, you must do the same.
Despite the investigation finding the shooting justified, I’d warned the city there was one aspect of this case that could backfire with a jury: The woman had been hit by seven bullets. The city continued to believe the independent investigation would exonerate the officers. Unfortunately, the jury generated a $7 million verdict, ruling too many shots were fired and two of the shooting officers were unjustified. This case could have probably been resolved for a much lower amount if an effort had been made to settle it.
The number of shots fired continues to be a highly scrutinized factor in police shootings, elevating some cases to the national level. Two notable recent incidents involved the fatal police shootings of Laquan McDonald in Chicago and Stephon Clark in Sacramento, both black men. McDonald was armed with a knife and Clark was found to be unarmed, although officers initially believed he had a gun.
A Chicago police officer shot McDonald 16 times, which quickly became a refrain in the mass protests that followed. The city erupted and although the long-term repercussions of the case are far from over, it has already led to the police superintendent losing his job, the local state’s attorney being voted out, and an officer being found guilty of second-degree murder. Not to mention, the city, which is self-insured, paid the deceased family over $6 million to resolve the case.
In the Clark case, Sacramento police fired 20 rounds, hitting Clark seven times. These numbers were repeated in media reports, along with a quote from his grandmother: “They didn’t have to shoot him that many times.” Protests again ensued, and the case has fueled a push in the California legislature to place significant restrictions on police use of force.
Both these cases are complex and certainly the number of shots fired is not the only aspect that drew public and media scrutiny. But it was a rallying cry and agencies and insurers should be sensitive to how the public views incidents where many shots are fired and consider this factor when settling the case.
Careless Texts and Messages from Involved Officers
The number of shots fired is not the only aspect that can disrupt an otherwise solid case. One case I dealt with involved the shooting of an intoxicated man who engaged in a fight with a person who lived near him. Police were called to the scene and could not get the man to respond to their orders for him to stop. He ended up being fatally shot. This incident occurred before the Ferguson, Mo., case, so the incident did not originally generate much negative publicity. Following the Ferguson case, however, the local media re-examined this case, asking why the officer didn’t use a TASER device on the suspect.
The plaintiff attorney learned the officer tended to send email messages to other officers using the city’s email system. In one such email—unrelated to the case at hand—the officer said he had pulled over a person known in the area and ended his message by saying, “I should have shot him.” It appears the officer was only trying to be “funny,” but the attorney was able to get the message entered into evidence, which raised the value of the case to several million dollars.
Attorneys often issue demands to review email messages and other internal communication. This is yet another example of why agencies need strong policies on use of the agency’s internal communication systems and need to train officers on such policies repeatedly.
Questions of Officer Negligence
Several years ago, on Halloween night, an officer saw two men fighting on a sidewalk; one was wearing a shirt with local gang colors. Although the officer could not determine if this was a real fight, he pulled over to break them up. This was one of the town’s busiest streets, but it had parking space near the curb, so stopping his vehicle didn’t disrupt traffic. Because many children were trick-or-treating in the area, the officer could not let both men stand on the sidewalk, so he had one man stand over by his car.
As the man stood there, an intoxicated driver drag-racing another driver down the main street lost control of his vehicle and ended up striking the rear of the police car, pinning the original subject. His legs were both amputated and he died shortly thereafter. The officer was also struck by the car and thrown over 25 feet; he spent close to 6 months in the hospital.
The number of shots fired continues to be a highly scrutinized factor in police shootings, elevating some cases to the national level.
A suit was eventually filed—against the city and the officer, not the intoxicated driver. You can probably guess why. The intoxicated driver had no insurance and no money available to pay for having caused the accident. It looked very possible this case could get resolved because the state’s immunity rules would apply: The officer did not block traffic, he was also injured and he had pulled over for a good reason. The deceased was an illegal immigrant with history of street fighting. His family, alleged to be living in Mexico, were led by an attorney who kept making multimillion-dollar demands, which drove the case to trial.
In cases involving police officers, the plaintiff’s history with law enforcement (e.g., been arrested several times, history of street fighting and public intoxication) is rarely allowed into the case—judges will normally rule this information has no impact on what happened. The same cannot be said for officers, however. Courts routinely allow the consideration of similar previous complaints filed against the officer. At this trial, the plaintiff’s attorney played the character hand hard, portraying the deceased as a great father who took care of his “young” children. This was a stretch at best. On one of the later days of the trial, the man’s wife and children (the youngest was 15) were present in the courtroom. They were all living illegally in the United States and the wife had left her husband several months before he was killed.
The state’s laws in this case allowed for the overruling of immunities if a jury finds a defendant’s behavior to be extremely negligent. Defense counsel and the city could see no extreme negligence caused by the officer, but the plaintiff’s attorney spent a whole court day trying to show otherwise. After more than a week of testimony, the jury took about 45 minutes to reach their verdict: They awarded the plaintiff $7.5 million. The jury overrode the immunities after the plaintiff’s attorney told them the officer was wrong not to turn on his patrol vehicle emergency lights when he pulled over and for making the man stand by the patrol vehicle. Neither defense counsel nor the city ever thought the lack of lights would change a jury’s opinion.
The lesson here: Be ready for a character assault on your officers and for attorneys to try to manipulate the jury’s impression of the plaintiff’s character. Perhaps more importantly, don’t rely on immunities to protect you from a negligence claim. Play devil’s advocate to anticipate the arguments a plaintiff’s lawyer may bring up to try to prove negligence, and have research, policy and best practices lined up to demonstrate why your officers took the actions they did.
There are many other areas that can affect a case, ranging from the venue where the case is filed to a similar event that may have occurred recently in your entity or in a nearby area. The media’s response can have a large impact. I dealt with several cases where witnesses changed their reports to the investigators after the media started posting negative reports regarding the case. Your agency’s reputation can also affect the value of the case.
Successfully defending your officers and your agency in these situations requires being aware of the entire sphere of influence on the case—don’t just focus on the known facts surrounding the incident. Plaintiff’s attorneys often study cases from around the country to identify aspects that may anger a jury. As the defense, you must do the same. Closely review all investigation reports to determine if there is any part of the investigation that could grab a jury’s attention should the case go to trial. In addition, do not hesitate to discuss the case with your insurance carrier. They may have learned some lessons the hard way that they can share with you.
The bottom line: Don’t rely on a jury, the media or the public to see a case through your eyes. We’re promised trial by a “jury of our peers,” not by a group of like-minded individuals who understand the complexities of law enforcement.