In Police Misconduct Lawsuits, Potent Incentives Point to a Payout
By ALAN FEUERAUG. 16, 2016
When lawsuits against the police are settled, like the one announced this week in which New York City agreed to pay $4 million to the family of Akai Gurley, people tend to focus on the amount of money changing hands. Sometimes overlooked are the institutional reforms embedded in the deals, and the difficult decisions made by plaintiffs and their lawyers in trading a full public airing of the facts for the recovery of damages.
In many police misconduct cases, the victims and their families are people of limited means for whom a six-figure check could be life-changing. At the same time, lawyers said, those who file, and settle, such suits belong to what might be called a community of the wronged, and often have a strong desire to tell their stories or force the system to change.
“Frequently, plaintiffs in these cases are badly damaged and want or even need compensation,” said Barry Scheck, a lawyer who helped negotiate the $9 million settlement for Abner Louima, a Haitian immigrant who was sexually assaulted by the police with a broomstick inside a Brooklyn station house in 1997. “But you have to trade that off sometimes with their aspirations to expose what happened, and to find solutions.”
Mr. Louima’s suit, which was filed against the city and its main police union, was a rare example of litigation that produced enormous monetary damages and real alterations to policing policy. When the settlement was reached in 2001, Mr. Louima said that he had dropped his three-year battle because he was convinced that the city and the union had started to improve the ways the Police Department trained, monitored and disciplined its officers.
Ultimately, the decision of whether to settle a suit or to air the facts of the case, hoping to both win a judgment and secure reform, is up to the client, said Scott Rynecki, who handled the suit involving Mr. Gurley, an unarmed man killed two years ago by an officer on patrol in a Brooklyn public housing project.
“Our primary job is to get our clients” — in this case, it was Mr. Gurley’s domestic partner, Kimberly Ballinger, and their daughter — “a decent recovery,” Mr. Rynecki said. “If the recovery is fair, we have an obligation not to go forward just to ‘go forward.’”
Mr. Rynecki said it was also important to create a public record and push for structural change. As part of his negotiations with the city, he said, he urged officials to improve training at the Police Academy in areas like firearms handling and emergency medical care. “I have made repeated calls for this, both in public and in private, with politicians and on TV,” he said. “It’s a constant mantra. We have the greatest police force in country, but that doesn’t mean it can’t be improved.”
In Mr. Gurley’s case, as in some others, litigation was preceded by an extensive criminal trial which produced a detailed narrative about everything that had happened. Sometimes, the revelatory nature of a criminal proceeding can persuade a plaintiff, like Ms. Ballinger, that she does not need her day in civil court. But sometimes, even a long criminal trial can leave the record incomplete.
Howard Hershenhorn, a lawyer who represented the family of Amadou Diallo, a Guinean immigrant who was shot 41 times by the police in 1999, said he “had no choice but to fully litigate the civil case” because the officers who had killed Mr. Diallo were acquitted and the story of his client’s death was never fully told. Working with his partners, Mr. Hershenhorn took numerous depositions during the case’s discovery phase, unearthing information that never emerged fully at the criminal trial. Much of it concerned the Street Crimes Unit, a plainclothes patrol in the Police Department that employed the officers who shot Mr. Diallo and was eventually disbanded.
“We never would have settled the case without assurances from the right people that that would happen,” Mr. Hershenhorn said. “The unit was on its way to being disbanded because of information that we produced in discovery and that, frankly, the city didn’t know.”
Since by definition plaintiffs in these cases have suffered the apparent trauma of personal injury or the death of a loved one, there are powerful incentives to take a settled payout and not relive it all at trial.
“These cases aren’t easy for the plaintiffs; they’re very difficult and emotional,” said Jonathan Moore, a lawyer who won a $5.9 million settlement in a lawsuit by the family of Eric Garner, who died after an officer placed him in a chokehold while arresting him for selling untaxed cigarettes on Staten Island. “It may not be exactly what they want, but settling a case at least puts an end to it.”
Then there is the question of the money, which can be a godsend for plaintiffs.
“More often than not, when we first meet our clients they tell us in all sincerity that ‘it’s not about the money,’ but in the end, even a jury verdict is a dollar figure,” said Andrew Stoll, who has represented several plaintiffs in police misconduct cases. “It’s the rare victim that has the luxury of refusing that money to make a bigger point.”