HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States
Civil Remedies
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Civil lawsuits against police officers and departments have become a common way of seeking "accountability" of a sort, with larger municipalities paying victims and their families tens of millions of dollars, through either pre- or mid-trial settlements or civil jury awards following judgments against officers and/or the police department.149 While victims certainly deserve compensation when officers violate their human rights, civil remedies are never a sufficient form ofaccountability because they almost never address flawed management, policies, or patterns of abuse, nor do they hold an individual officer financially responsible.150 And settlements in particular are problematic, especially in high-profile cases, by leaving responsibility for an abuse incident unresolved in the minds of the both the community and police department.

Under Title 42 U.S. Code Section 1983, the federal civil rights civil statute, individuals may file lawsuits against an offending officer, police department, or jurisdiction.151 Although the federal law, Section 1983, is used most frequently, plaintiffs may also use state-level statutes in bringing abuse lawsuits. The statute mandates that:

    Any person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....152

Success rates in bringing civil lawsuits against officers vary dramatically from city to city, with some cities settling early and quietly while others vigorously fight brutality suits. If a case goes to trial, some juries have shown a predisposition to believe police officers' accounts, particularly when the victim has a criminal record. The strongest cases presented by victims of serious abuse are often settled by a city to avoid embarrassing attention; in such settlements, the department rarely acknowledges that an officer was in the wrong. Often, parties are sworn to secrecy regarding the amount of the settlement or information about the officer that may have been disclosed during the process.153

The amounts paid in civil lawsuit settlements and following judgments in police brutality cases varied greatly in the cities examined by Human Rights Watch. In New York City, taxpayers paid plaintiffs about $70 million in settlement or civil jury awards in claims alleging improper police actions between 1994 and 1996.154 In Los Angeles, the city paid approximately $79.2 million in civil lawsuit awards and pre-trial settlements against police officers (not including traffic accidents) between 1991 and 1996. In other cities, the amounts paid were quite small. In Atlanta, where the city "litigates aggressively" to defend itself against police abuse lawsuits, the city paid just over $1 million between 1994 and 1996, although in June 1997 the city paid out $750,000 in a single case - one of the largest single payouts in Atlanta's recent history. Between 1994 and 1996, Indianapolis paid approximately $750,000 total in police misconduct lawsuits, pre-trial and post-verdict.155

Of the cities examined, Philadelphia was among those paying the largest amounts to settle civil lawsuits alleging police misconduct. Between July 1993 and November 1996, the city agreed to pay $32.6 million in settlements and civil jury awards arising from lawsuits alleging police misconduct.156 The former deputy city solicitor (and newly appointed anti-corruption director) stated, "This is not Monopoly money. This is real money. How do we save the taxpayers millions of dollars?"157 The Philadelphia Inquirer estimated in 1996 that the year's payouts would fund 250 police officers for a year.158

Washington, D.C. paid $4 million in settlement or post-verdict payments in police misconduct suits by individuals claiming false arrest/assault during a three-year period between 1993 and 1995. This amounted to four times the budget of thecity's Civilian Complaint Review Board; the board was abolished in 1995, in part due to budgetary constraints.159 In Detroit, the police department announced new training programs for recruits in April 1997 in an attempt to stem the enormous amounts paid by the city's taxpayers in civil lawsuits alleging police misconduct. Between 1987 and 1994, the city reportedly paid $72 million in settlements or jury awards stemming from police misconduct lawsuits (excluding claims based on vehicle accidents and chases), and in the twenty-two-month period between July 1, 1995 and April 1997, the city paid just under $20 million in cases involving alleged police brutality, police chases and minor accidents.160

The New Orleans Law Department resisted providing any information regarding payouts in civil cases to individuals alleging police abuse.161 Between 1994 and 1996, the city reported paying approximately $1 million for excessive force and wrongful death suits. According to local attorneys who represent plaintiffs in these cases, the state has not actually paid on a police misconduct claim since mid-1995.

Taxpayers in some cities, such as New York and Philadelphia, are paying three times for officers who repeatedly commit abuses: once to cover their salaries while they commit abuses; next to pay settlements or civil jury awards against officers; and a third time through payments into police "defense" funds provided by the cities. For all of the coverage, city residents get in return an erosion of standards and heightened tension in poor and minority neighborhoods.

The positive aspects of civil lawsuits, which provide some plaintiffs or their families with compensation, are undermined by several factors. In many instances, an attorney representing a police abuse victim will instruct him or her not to file a complaint with citizen review agencies or internal affairs units for fear of making a statement that may be unhelpful in pursuing the civil case or in defending the clientif criminal charges are pending against him or her.162 Therefore, because attorneys choose the strongest cases to pursue, some of the most important abuse complaints may not be filed with external or internal review units. Since these units are complaint-driven, no investigation will ensue.

Another problem in most cities is that civil settlements paid by the city on behalf of an officer usually are not taken from the police budget but are paid from general city funds. In larger cities, even significant payouts in these cases do not have much of an effect on the city's operations, and only lead to change when they become an embarrassment. In Philadelphia, for example, civil lawsuits on behalf of victims of police misconduct made headlines after they reached record highs in 1995 and 1996. Eventually, the threat of more lawsuits that could significantly affect the city's budget forced city officials to accede to a reform plan backed by community leaders. But that was an exceptional case; other cities continue to pay large amounts without examining, acknowledging, or correcting the police activities that led to the lawsuits.

The individual officer who is the subject of a police misconduct lawsuit found in favor of the plaintiff is rarely forced to pay the victim. In fact, an officer who is the subject of a successful lawsuit alleging abuse may escape any sanction. Most of the departments examined by Human Rights Watch did not initiate an internal affairs or review agency investigation when a civil claim or suit alleging serious abuse is filed or a settlement or award is made favoring the plaintiff. There are notification systems in some cities whereby the city attorney's office informs the relevant internal affairs unit that a suit has been filed or resolved, but that information is not necessarily used in evaluating the officer; indeed, some internal affairs units investigate complaints made in civil lawsuits only in order to assist the city in defending itself against plaintiffs' claims.

Some internal affairs investigators - in defending their inaction when civil suits alleging misconduct are filed or decided in favor of the plaintiff - state that plaintiffs' attorneys will not allow them to interview the alleged victim. Yet there is no reason why they could not use the information developed through a lawsuit, including names of witnesses and officers present, to begin an investigation even without a formal complaint or direct statement from the alleged victim. As it is, a city may pay hundreds of thousands, or millions, of dollars on behalf of a brutal officer, yet the officer pays no price whatsoever.

Even in cities where some type of early warning system is utilized to identify potential problem officers - as in Boston, Los Angeles, New Orleans, New York,and Portland - civil lawsuits filed against officers are not monitored the way complaints filed with citizen review agencies or internal affairs units are. This is so even though civil suit complaints include detailed information about serious violations that should be investigated. While clearly frivolous cases should not be used in assessing an officer's performance, this disconnect between lawsuits and internal investigations is baffling, because the suits could be used as a management tool; they should also be monitored by prosecutors in case criminal acts are credibly alleged.163

Yet, most internal affairs staff interviewed by Human Rights Watch made statements such as "civil cases are not our problem," or asserted that the settled suits do not indicate the "guilt" of an officer, disregarding the important information that citizen-initiated lawsuits could provide. City attorney offices seemed to share this perspective; for example, the New York City Law Department wrote to Human Rights Watch, "concerning notification procedures where a lawsuit alleges police misconduct, the Law Department does not have a formal procedure for notifying IAB or the CCRB of such lawsuits."164

In Portland, the police chief explained why "risk management data" (civil lawsuit information) are not used as a tool in reviewing officers, as suggested by Portland's citizen review agency: "I have not been able to determine a way to utilize Risk Management Information to label employees as problem officers. Tort claim notices do not contain all of the facts and I do not think it is fair to attempt to determine the involvement of an individual without examining all of the facts."165 Like many other high-ranking police officials, the chief fails to recognize that the information in such lawsuits could be valuable, at a minimum, in determining whether to launch an investigation.

Gannett News Service published a series of investigative articles in March 1992 examining the fate of police officers named in one hundred civil lawsuits in twenty-two states in which juries ordered $100,000 or more to be paid to plaintiffs between 1986 and 1991.166 The awards from the lawsuits totaled nearly $92 million dollars. Of 185 officers involved in these cases, only eight were disciplined. No action was taken against 160, and seventeen were promoted. The reporter concluded, "[T]axpayers are penalized more for brutality than the officers responsible for the beatings."167

The Christopher Commission examined eighty-three civil cases with settlements, judgments or jury verdicts of more than $15,000 between 1986 and 1990 against officers with the Los Angeles Police Department. During this period, Los Angeles paid more than $20 million in over 300 lawsuits alleging excessive force through judgments, settlements and jury verdicts. A majority of cases involved clear and often egregious human rights violations committed by officers, resulting in the victim's serious injury or death. The commission found the department's investigation of these cases deficient in many respects and noted that discipline against the officers involved was frequently light or nonexistent. Eighty-four percent of the officers investigated received positive ratings in their personnel evaluations, and 42 percent were promoted following the incident.168 The commission recommended establishing procedures to monitor results of civil litigation and to make use of the information obtained. It called on the city attorney to notify promptly the Police Commission and the department when lawsuits are filed alleging police misconduct, and called on the Internal Affairs Division to investigate every "significant" claim. In its November 1997 report, the Office of the Inspector General (OIG) of the Los Angeles Police Commission reviewed 561 civil claims for damages involving department employees forwarded from the City Attorney's office to the department in 1995.169 The department did not sustain a single allegation of misconduct against a sworn employee, of the 561 claims reviewed. While the City Attorney's office does notify the department when a claimis filed in state court, the OIG found that there has been no procedure in place for the City Attorney to notify the department of federal lawsuits.

As with most aspects of police abuse, data collection on lawsuits is inadequate. Some cities do not distinguish amounts paid in cases of misconduct, including excessive force, from damages arising because of mishaps such as traffic accidents. Others compile statistics that combine information on wholly different issues, such as false arrest and excessive force. In Atlanta, because it claimed no data had been collected in a systematic manner, the city attorney's office provided Human Rights Watch with some information by asking its staff the amounts they remembered the city having paid. Despite repeated letters and telephone calls from Human Rights Watch, no civil lawsuit data relating to police misconduct were provided by Chicago or Philadelphia.

The city of Boston is unique among the cities examined in that it apparently does not compile, or acknowledge compiling, amounts paid in police abuse lawsuit settlements or jury awards. Nine months after Human Rights Watch's initial inquiry, we received a letter from the staff attorney with the Office of the Legal Advisor of the police department, stating: "[N]either the Department, nor the City of Boston, maintain records in a form responsive to your request, i.e., a list or compilation of the amount of money paid to settle police brutality cases."170

Although they usually do not affect policies, civil lawsuits have led to reform occasionally. In Tennessee v. Garner (1985), the U.S. Supreme Court held that police shootings under the authority of laws and policies that allowed officers to use deadly force to apprehend nonviolent fleeing suspects violated the Fourth Amendment of the U.S. Constitution, which protects against unwarranted search or seizure.171 As a result, police departments were compelled to formulate more restrictive policies on the use of deadly force or face future liability for officers'exercise of the broad - and unconstitutional - discretion allowed them by state legislation.172 Decisions in other cases under Section 1983 (the federal civil statute commonly used by individuals alleging police abuse) have held police agencies liable for inadequate policy and training regarding nonlethal force, strip searches, and vehicle pursuits. As described below in the chapter on Philadelphia, the threat of overwhelming civil lawsuits filed on behalf of victims of police abuse and court-ordered reforms in that scandal-ridden department forced police officials to agree to wide-ranging reforms.

Civil lawsuits also can lead to the disclosure of information - particularly when a case goes to trial - that otherwise would not have been available. Even initial complaints filed by alleged victims or their families provide information of interest to police abuse monitors.

Citizen review agencies generally do not utilize civil lawsuits, instead relying on individuals to come to the agency to file a complaint. Some agencies are overburdened and hardly interested in seeking out additional complaints. Others have respected concerns voiced by attorneys representing plaintiffs who prefer that their clients not speak to any investigator. A more proactive approach, however, is that of San Francisco's Office of Citizen Complaints, which has established a new procedure: once it is notified of police abuse lawsuits by the city attorney's office, it sends the plaintiff an OCC complaint form, explaining how the OCC works, and suggesting that the victim file a complaint.

Civil suits should be used in addition to, not instead of, other accountability avenues. When police departments or criminal prosecutors deflect criticisms by stating that victims of abuse can always sue, they forsake their responsibilities. Civil remedies must always be available, but they cannot be a substitute for police department mechanisms of accountability or prosecutorial action.

149 Even if administrative or criminal accountability systems worked better, civil lawsuits would still be filed, yet the absence of other avenues for redress makes lawsuits more likely.

150 As described in the legal section below, cities may pay plaintiffs in settlements, yet not admit liability for the officers' misconduct, thereby not actually accepting legal responsibility for the harm.

151 Although the federal law, Section 1983, is used most frequently, plaintiffs may also use state-level statutes in bringing abuse lawsuits.

152 42 U.S.C. §1983.

153 Total amounts of settlements may be made available, however, through city solicitors or city attorneys. No nationwide, systematic data are kept regarding the numbers of Section 1983 lawsuits filed.

154 Matthew Purdy, "What does it take to get arrested in New York City? Not much," New York Times, August 24, 1997. Figure includes lawsuits alleging brutality and other police misconduct.

155 The city appealed a $3.55 million jury verdict award in favor of the family of Michael Taylor in 1996.

156 Mark Fazlollah, "Bill soars on police claims," Philadelphia Inquirer, November 21, 1996.

157 Ibid.

158 Human Rights Watch attempted to obtain these figures directly, in writing, from the city solicitor's office. A request was sent on September 18, 1996, and the same request was sent repeatedly thereafter. As of this writing, and despite repeated telephone calls, we have not received a response.

159 ACLU National Capital Area, testimony before the Committee of the Judiciary, City Council, October 11, 1995.

160 Roger Chesley, "Police training program could cut lawsuits,"Detroit Journal, April 20, 1997; information provided by the city's legal department; and $72 million figure compiled by Detroit City Councilman Mel Ravitz's office.

161 Other cities required many reminders, and several city solicitor or city attorney office representatives provided information by telephone but never sent the documentary material they promised.

162 Attorneys who frequently represent victims in police brutality civil cases have told Human Rights Watch that their clients are often badgered and intimidated by internal affairs investigators, thus reinforcing their lack of interest in filing a complaint with the relevant police department.

163 Under Rule 11 of the Federal Rules of Civil Procedures (1996), attorneys who present federal civil lawsuits, such as suits under Section 1983, affirm their contention that the suit is not frivolous, baseless, or filed for improper purposes. If a court determines that an attorney violated this rule, it can impose fines or other "non-monetary directives." This is a stronger deterrent to filing unwarranted lawsuits than those faced by complainants using internal or external review procedures; therefore, lawsuits detailing incidents of police abuse should be taken at least as seriously as citizen complaints in initiating investigations by internal and external units.

164 Letter from Assistant Corporation Counsel Michael Sarner, New York City Law Department to Human Rights Watch, November 8, 1996.

165 December 20, 1995 Memorandum from Portland Police Chief Moose to Portland Mayor Vera Katz.

166 Rochelle Sharpe. (March 1992). "How Cops Beat the Rap," [News Wire] Gannett News Service. [Online].

167 Ibid.

168 No data were available for the remainder. Christopher Commission report, p. 57.

169 Office of the Inspector General, "Status update: management of LAPD high-risk officers," November 1997, pp. 6-7.

170 Letter from Robert E. Whalen, Staff Attorney, Office of the Legal Advisor, to Human Rights Watch, September 16, 1997.

171 Prior to Tennessee v. Garner, officers were not prohibited from shooting at any fleeing felon. According to international human rights standards, "[L]aw enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve those objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life." Principle 9, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Doc. A/CONF.144/28/Rev.1 (1990).

172 James J. Fyfe, Police Administration (New York: McGraw-Hill, 1997), p. 204.

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© June 1998
Human Rights Watch