Do lawsuit payouts equal a pattern of police misconduct?
By Rachel Dissell,
CLEVELAND POLICE: FORCING CHANGE
• Cleveland police union, organizations to address public during 'conversation' on Justice Department findings
• Hold police and criminals responsible for their behavior: Letter to the Editor
• What would you ask Mayor Frank Jackson during his 10th State of the City address?
• Hear Mayor Frank Jackson sound off on Mike DeWine and Columbus lawmakers; let's hope his 10th State of City is as lively: Mark Naymik
• Cleveland.com readers react to recommendations for consent decree on police excessive force
CLEVELAND, Ohio -- The U.S. Department of Justice issued a scathing report in December, claiming that the Cleveland Police Department routinely violated citizens' civil rights. But taxpayers already had been paying a heavy price: more than $8.2 million to resolve lawsuits that accused officers of brutality, misconduct or making wrongful arrests.
In the last decade, the city settled or was ordered to pay judgments in 60 cases to people from all walks of life -- from a special education teacher to a suspected drug dealer.
"If the city thinks an officer did something wrong, they should charge them with a crime, not write a check," CPPA President Steve Loomis said.
The amounts paid range from $1,125 to a man who claimed he was roughed up by off-duty officers at a downtown nightclub when he tried to return a lost wallet to the $3 million paid to the families of Malissa Williams and Timothy Russell after they were killed in a hail of 137 bullets at the end of a cross-town police chase that made national headlines.
In a number of cases, the people who alleged brutality were the ones who called police for help in the first place.
More than a year ago, The Plain Dealer and Northeast Ohio Media Group submitted public records requests to the city, in an effort to determine how widespread allegations of misconduct were and how much police behavior was costing the city. The records were turned over on the eve of the Justice Department's release of its report.
Reporters reviewed more than 100 lawsuits that the city settled or was ordered to pay judgments for, focusing on 60 cases where officers were accused of civil rights violations.
Looked at individually, each case has its own story to tell, often with citizens and officers giving very different accounts.
Mayor Frank Jackson says the settlements don't prove any pattern of police conduct. They don't even mean officers were at fault for wrongdoing, officials have said.
But viewed as a whole, the details show that high-level city officials were, or should have been, on notice about allegations that officers too often used excessive force, escalated confrontations and needlessly disrespected citizens in the community they were hired to serve.
That argument is reinforced by the fact that the lawsuits followed an earlier Justice Department probe that elicited promises from the city in 2004 to improve use-of-force training, policies and accountability.
"It had to be a choice," said David Malik, a veteran civil rights lawyer. Officials must have made a conscious decision not to track troubling behavior, not to hold officers accountable and not to properly train using best practices, he said.
"If I were you, my headline would read something like, 'Anatomy of an Epic Failure: The High Cost of the CPD's Deliberate Indifference.'"
Canary in the coal mine
The pattern of civil rights violations found in the latest U.S. Department of Justice investigation closely mirrors the allegations in the 60 lawsuits. The 58-page report used several cases that were settled as examples to support the findings.
Lawsuits are like the canary in the coal mine, said Candace McCoy, a professor who specializes in police policy at the John Jay College of Criminal Justice in New York.
"They tell you what's wrong if you pay attention over time," said McCoy, who is from Northeast Ohio. "I think Cleveland may not have been paying attention."
The December Justice Department report called for sweeping changes in the department's use-of-force policies and practices. It also asserted that officers used poor and dangerous tactics and worked within a system that seldom held them accountable for their actions.
Justice Department lawyers noted that the lawsuits, along with other indicators, should have flagged patterns concerning behavior. City officials emphasize that many factors play into the decision to settle a lawsuit, and that paying a plaintiff is not an admission of wrongdoing.
But civil rights attorney say it should not take multiple federal investigations for city officials to move toward a meaningful cultural change in the department.
"The city has known about this problem for years, but they have never demanded the accountability that the people of Cleveland deserve," said attorney Paul Cristallo, of Cristallo & LaSalvia, who handled three cases the city settled.
"The city of Cleveland has treated excessive force cases and complaints as if the city is an insurance company, in terms of risk management," he said. "We're talking about people's constitutional rights. ... You can't treat constitutional claims like car accidents, and that is what the city has consistently done, rather than face the police union and demand accountability."
Steve Loomis, president of the Cleveland Police Patrolmen's Association, which represents most rank-and-file officers, said complaints against officers, whether in court or to the city, represent a slim minority of the more than 400,000 times officers come into contact with citizens each year.
He said the city should not settle cases in which internal police investigations found that the officers did nothing wrong because it only encourages "frivolous" lawsuits that enrich civil attorneys.
"If the city thinks an officer did something wrong, they should charge them with a crime, not write a check," Loomis said.
Defense attorney Henry Hilow, who has represented Cleveland police officers and firefighters in criminal and civil cases, cautioned against looking at the cases to glean patterns of widespread misconduct.
"By and large these cases stand by themselves individually," Hilow said. "They are not a part of a culture that encourages officers to ignore people's constitutional rights."
Hilow believes recent high-profile cases have caused people to overly simplify their perceptions of police, including exaggerating racial overtones.
"There are so many different variables but everyone just wants to make it A plus B equals C," Hilow continued. "It isn't that easy."
Jackson calls for wider review
Jackson has argued that there's a broader context to how the city ended up facing the Justice Department's findings and negotiating a consent decree that will likely hang over the department for years to come. He has called for a deeper dive into the whole criminal justice system, from arrest to sentencing, to ferret out whether larger disparities exist.
From the moment Jackson took office, he keyed in on police use of force as a concern. The department, despite the specter of recent high-profile cases, has improved, he said recently.
To back that up, the city cites a more than 30 percent drop in the use of what they call less-lethal force, such as pepper spray and Tasers, in the last eight years. Calculated based on the total number of arrests, it equates to officers using those methods in roughly 2 percent of arrests last year.
The use of deadly force has also steadily declined, according to police statistics. On average, in the eight years from 2006-13, deadly force -- police action that could or did cause a death -- was reported 21 times per year or in less than 1 percent of all the times an officer made an arrest.
However, Justice Department lawyers cautioned that the department kept incomplete records when it came to use of force -- if it was properly reported in the first place -- making an accurate assessment difficult.
Does the price tag matter?
One variable some have called attention to is the amount of a settlement. Though there's a wide span, payouts over a decade average about $130,000 per case.
But does a smaller settlement equate to a less-truthful claim?
Lawsuits can be settled because the agreed-upon amount is cheaper than the cost to take the case to trial, city officials said. Attorneys and experts say many other reasons play into settlement decisions. In some cases, plaintiffs don't want a lengthy fight. They just want medical bills or other costs covered. Some have more-experienced attorneys.
Settlement calculations can also be based on a person's earning capacity.
"Sure, often settlements are based on attorneys saying 'lets get rid of this case, it's silly,'" McCoy, the professor, said. "But in cases where someone is poor or doesn't have a job, the settlement may be small because the system is designed to pay breadwinners."
Officer discipline a mess
Another question raised in a review of the lawsuits is whether some of the behavior alleged in the lawsuits led to officer discipline.
In December, the Northeast Ohio Media Group and The Plain Dealer requested disciplinary records related to cases of officers who had faced multiple lawsuits. That request is still pending. Cleveland councilman Matt Zone also had questions about officer discipline and the criminal review of cases after the Justice Department report was released.
Zone put in his own public records request for the outcomes of deadly use of force and internal affairs investigations. The city provided him with a summary of 110 investigations, of which 88 were complete. In 80 percent of the cases, the city prosecutor found insufficient evidence of criminal conduct on the part of police or that the officers' actions were justified. In roughly a quarter of the cases, administrative discipline or retraining was recommended.
Jackson has said that even when the department has sought to punish officers who step out of line, discipline is watered down or overturned by union-friendly arbitrators. In cases reviewed as part of this project, some officers who were charged with crimes related to their police action were found not guilty by judges or juries.
The Northeast Ohio Media Group has requested five years' worth of arbitration decisions related to police disciplinary cases but the city has yet to provide the records. However, Justice Department attorneys said the Internal Affairs investigators could be the ones not holding rogue officers accountable.
They said investigations were often incomplete, that investigators used unreasonably high standards of proof and admitted to a "bias in favor of clearing the officer instead of objectively pursuing all of the available facts."
The city declined to discuss specific cases related to the lawsuit settlements. However, the settlements may offer a window into how police culture is created.
Here's an example: Since being hired in 1997, Sgt. Tim Guerra has been accused in lawsuits at least five times of using excessive force or making wrongful arrests. He's also had additional citizens complaints filed against him, though most were later dismissed or closed.
City lawyers have settled three of the cases, adding up to more than $145,000.
The most recent case settled involved Tamela Eaton, a woman who called police about a car that was blocking the driveway to her parking lot. Eaton said she saw the officers near her home and thought they were about to arrest someone in relation to her call. Patrolmen Guerra and Frank Garmback, his partner at the time, were actually stopping a person who matched the description of a murder suspect.
When Eaton questioned them, they told her to back off. But, she said, she felt they were brutalizing a young woman and spoke up. She ended up with broken ribs, and teeth along with other injuries, according to her lawsuit against the officers.
The city settled her suit for $100,000, though they argued that Eaton shouldn't have intruded in the situation. But what happened next bothered Eaton almost as much as her own encounter:
Guerra was promoted to supervise other officers and Garmback was selected to train rookies, including Timothy Loehmann, the officer who shot 12-year-old Tamir Rice in November. Garmback was driving the cruiser that day.
The shooting is under investigation by the Cuyahoga County Sheriff's office. Loomis has said the officers' actions were in line with the situation they encountered. Eaton believed officers should have been be fired, or at least given desk jobs.
"Someone who does that shouldn't be put out on the streets again and definitely not train someone," she said.
City tracks officers' behavior
The city says it is doing more to track officer behavior in ways that could signal future troubles with police officers. The recommendation to do so was made during the earlier Justice Department investigation but never was completely done.
Earlier this year, the city purchased software that is supposed to help evaluate officers based on things such as sick time, civilian complaints, use-of-force incidents and internal affairs investigations, Zone said. If concerns come up about particular officers, they can be sent for psychological assessment or offered help.
"It should help the department better figure out who might be having problems," Zone said.
However, the software will not track lawsuits. City officials say that separate tracking is not needed because all incidents where officers use force will be tracked.
Other cities do closely track police-related lawsuits. For example, in Columbus, council members vet settlements of $20,000 or more. In Cleveland, the director of the law department has sole authority to settle suits, though city officials said the mayor is often consulted.
Columbus also had far fewer cases to keep track of even though the city has 300 more police officers than Cleveland.
Between 2006-11, Cleveland defended against more than twice as many civil rights lawsuits accusing police of misconduct, and paid three times as much in settlements and judgments as Columbus, according to a study published in the New York University Law Review last year by Assistant Law Professor Joanna C. Schwartz.
New legal trouble?
The city has steadily settled or been ordered to pay plaintiffs in at least six lawsuits a year for the past decade.
That doesn't include some recent payouts, including the $13 million a court ordered them to pay David Ayers after a jury decided he was wrongly convicted for the murder of an elderly woman, in part because of a botched investigation by two Cleveland homicide detectives.
In many of the lawsuits, attorneys have alleged that the city failed to properly train or discipline officers. Most often, the city was dismissed as a defendant in the case but still had a duty because of state law and union agreements to legally defend the accused officers and foot the bill for the settlements and judgments.
Now, some civil rights attorneys believe Cleveland is wide open for more federal lawsuits, including previously tough-to-prove claims against the city alleging that it allowed police policies and practices that led to constitutional violations.
The Justice Department report, they say, could be Exhibit A in those cases.
Terry Gilbert, an expert in civil rights law and board member for the National Police Accountability Project, said those types of claims are far harder to prevail than ones where attorneys have to show that officers who used excessive force or made a wrongful arrest were government employees doing their job under the "color of law."
To boil it down, it's essentially the legal difference between an officer acting "outside of the box," a scenario favored by Jackson, or the existence of a "systemic failure" within the department, as Ohio Attorney General Mike DeWine and U.S. Attorney Steven Dettelbach have said.
Regardless of the types or volume of lawsuits the city will face, the Justice Department investigation and ensuing media coverage and high-profile use-of-force cases could be game changers in the civil rights arena.
"It changes the dynamic in the courtroom," Gilbert said. "It educates the jury pool, the judges and the public."