It’s a fact of life: Sometimes lawsuits settle. Although most street cops and use-of-force experts would rather see outrageous and/or frivolous lawsuits go to trial, the fact is that many settle out of court.
Settlements bother cops because they never get their “day in court.” You never get a chance to explain why you had to do what you had to do. Further, the “bad guy” and his lawyer often walk away with a lot of money. So let’s discuss first why lawsuits sometimes settle, what you can do about it, if anything, and how to cope with it if you can’t.
A Recent Case
You and your partner respond to a report of “possible street corner drug dealers in a parked car.” When you arrive, the suspect’s engine is running and prospective buyers are scurrying like rats. This is a high-crime, known dope distribution area.
You call out with the plate number and ask the dispatcher to run it before you and your partner exit. The “no hit” on the wanted check comes back right away, but upon seeing a lot of furtive movement by the two occupants, you ask that the owner’s data be held until you and your partner check out the car.
You approach the driver; your partner takes the passenger. You smell weed. A request to exit the car is met with the usual slow movements of a pot-head, and the cuffs are put on without any resistance. You start your pat-down and figure these two birds are going to delay dinner on either simple “possession” or “possession with intent,” depending on the amount of weed you find and how it’s packaged.
Your partner isn’t as successful as you are, though. All 6'3", 220 lbs. of passenger exits the car with his attitude leading the way. A tactical lapse in judgment causes your partner to start his pat-down without first cuffing the suspect, and sure enough, the passenger rabbits. Your partner gives chase and quickly runs down the suspect within the first 15 feet of the chase. You stuff your guy in the back seat of your squad car and run over to where your partner’s involved in a ground fight with the bad guy, who by now is sitting on your partner’s chest with his fist raised high in the air.
You jump on the bad guy’s back only to be met with a sharp elbow to your forehead. The bad guy again targets your partner’s nose with his ham-sized fist. This time, the fist lands; blood splatters everywhere. The bad guy then grabs your partner’s gun and manages to yank it out of the holster. With your partner gagging on his own blood and struggling to keep the barrel of his semiauto away from his face, you get up to resume your life-and-death assistance—just as the shot goes off and the bad guy slowly rolls off your partner’s chest.
Fortunately, the only injury to your partner is his broken nose. The bad guy isn’t so lucky. He dies an hour later at the local ER from one fatal contact shot to his upper chest.
After-Incident Review
The shooting runs the usual gamut of deadly force incident review. You’re both cleared by the grand jury and the two parallel inquires by IAB and CID find no fault with your conduct. An after-action critique by the training unit addresses the importance of handcuffing “suspects” in certain situations, a perfectly legal and proper tactic that a lot of trainers and experts don’t emphasize enough. So far, so good. And then, the lawsuit hits.
The deceased suspect’s mother has been contacted by a civil rights attorney and now feels that your partner violated the deceased’s constitutional rights. She files a lawsuit in U.S. District Court alleging your use of force (jumping on her son’s back) was wholly unreasonable and your partner’s shooting of her totally innocent son, well, that was just outrageous. All your squad room buds offer their encouragement that this “bogus lawsuit” will never withstand the legal smell test and will quickly find its way to the court house dumpster—“where it belongs,” they say.
However, it seems that a 90-year-old eyewitness, who just happens to find enjoyment sitting at her living room window each afternoon watching the street corner dope deals go down, saw things a little differently than you, your partner or even the other suspect. She claims the deceased was dispatched execution style.
Because of this independent witness, all the city’s motions for a summary judgment are denied. Despite overwhelming physical evidence—the ballistic tests that prove it was your partner’s gun that fired the one shot, the ample gunpowder residue on the front of the attacker’s shirt, along with the ME’s description of the wound path being clearly front to back with stippling present that indicates a “close contact” shot—nothing can sway the witness. Adding insult to injury, a police use-of-force expert opines that if one were to find the witness’s testimony credible, both your use of force and your partner’s was excessive, unreasonable and clearly improper.
This case languishes through the painfully slow civil justice system for years. Three different assistant city attorneys come and go before it’s finally set for trial. The witness with the bionic eye is now nearing 95, but still clearly “remembers” what she saw, despite the physical evidence to the contrary.
The Costs of Settling
Before the trial is scheduled to begin, your expert witness gets a call: “The case settled.” According to the assistant city attorney du jour, the city agreed to a pay-off to the deceased’s mother. “Strictly an economic decision,” she says. “It’s cheaper to settle than take it to trial.”
Here’s why. Some time ago, the city was dismissed from the suit. Only the officers’ actual use of force remained as a cause of action. Now this may not seem all that significant to the average street cop, because compensatory damages are usually paid by the city. In other words, compensatory damages don’t come out of the cops’ pockets. I often suggest that city and/or county attorneys, as part of the settlement agreement, make a request that the officers be dropped from the suit. More often than not, that request doesn’t pose a problem. Plaintiffs usually don’t care who admits responsibility, as long as they (and their lawyer) get their money. But in this case, the city had been dropped from the suit a long time ago. By settling, the city in essence is admitting the officers’ actions were improper. That’s what left the bad taste in my mouth.
Conclusion
Some cities I work with as a force consultant have taken the stand that all force cases where the officer is clearly justified go to court. Whether your municipality decides to take this hard-line approach depends on a lot of things, but very little has anything to do with your conduct or actions. Clearly, if the police are at fault, they will likely settle. But, even when you’re 100% right, a lot of the city’s strategy is going to depend on two things: money and politics.
The money part is pretty easy to figure out. Cities often spend upward of $250,000 to try a police force case, so you can see why they might opt to settle for half that much. If $100,000 will make the plaintiff go away, you have to figure the city is going to settle. With the attorney grabbing his third or more, the plaintiff is probably going to walk away with about $65,000. That’s Economics 101.
But politics is a different animal. Politics comes from the Greek word, poli (meaning “of many”) and the English word tick (which is a bloodsucking bug). Often, the appropriateness of your actions or the financial resources of your city won’t even be a factor. Some cities are going to pay out on police force cases to silence the few vocal critics who think that your police department is just something they have to live with but would be better off without ever seeing or hearing from. Some municipal officials take the approach that if they pay off the enemies of the cops, they’ll go away. But as history tells us, they don’t. And why should they? If a complaint of improper handcuffing can net an arrestee $15,000 (after the attorney’s take), why not spread the word?
The bottom line:Regardless of where you work, settlements are here to stay. Even if your municipality currently has a “no settlement” policy and takes the hard-line approach, the next election and change of administration
can bring that policy to a screeching halt. But there is one a good thing about settlements: They virtually guarantee that you’re not going to have to pay any punitive damages out of your own pocket. In other words, you’ll never have to worry about the plaintiff and his or her extended family living in your house. Maybe that thought will take the sting out of not getting your day in court because a settlement deal was reached after your justified use of force.