Here at The Watch, we’ve frequently noted how difficult it can be for victims of police brutality and misconduct to recover any sort of compensation. Given the opaqueness with which police agencies are allowed to operate, the various “police officer bill of rights” laws, the qualified immunity afforded to police and the sovereign immunity enjoyed by states, cities and counties, it’s rare that police abuse lawsuits ever get in front of a jury. When a case does get that far, juries tend to be reluctant to rule against law enforcement officers. Only the more egregious cases tend to result in compensation, and even then, it’s usually due to political pressure on the city or county to offer a settlement before trial.
All of which makes what’s going on in Cleveland all the more reprehensible. Writing in the Cleveland Scene, Kyle Swenson draws attention to the case of Kenny Smith, whose family won a rare jury award of $5.5 million. Smith was killed by an off-duty police officer outside of a bar.
But thanks to some crafty moves from the city’s law department, Smith’s moment of justice might never come.
Across the country, piggy bank-busting civil judgments have become the best way to keep police and municipalities honest in cases of officer misconduct. From 2004 to 2014, for instance, Cleveland shelled out $10.5 million in settlement money to victims of badly behaving cops. Under state law and the terms of the union contract, chronically cash-strapped Cleveland indemnifies officers in the cases where they’ve been personally found liable, meaning ultimately, taxpayers foot the bill for an officer’s misconduct.
But now, in the two largest civil judgments currently sitting on the books — one being Kenny Smith’s death; the other a sloppy and malicious murder investigation that railroaded an innocent man — the city has pulled a move that one veteran civil rights lawyer calls “wrong, immoral, disingenuous and unethical.”
In both cases, the Cleveland law department used city funds to pay for cops saddled with judgments to move into personal bankruptcy. It’s a calculated effort, according to the attorneys fighting the move, for the city to skip out on their responsibilities to pay the judgments.
… Just as mayor Frank Jackson, clutching the Department of Justice’s 2014 consent decree, promised citywide soul-searching on police reform, Cleveland’s law department is messing with civil matters that have already been decided by a jury.
And the implications aren’t only local.
“This provides a road map for any municipality that wants to evade their obligations,” says Ruth Brown, a Chicago attorney currently locked in legal judo with Cleveland over the issue. “We fully expect that if Cleveland is allowed to get away with this, they will try this again.”
Normally in such cases, the city indemnifies police officers — since the officers are employees of the city, the city covers the award. In rare cases, a city will ask a court to release them from indemnification, but that’s generally limited to misconduct so egregious that the officers are found to have been acting outside the scope of their official duties. (An example might be a cop who, say, blackmails a suspect, or rapes someone while on duty.) Swenson cites a 2014 study that found cops were indemnified in 99.98 percent of cases the researcher surveyed.
Cleveland appears to refusing to indemnify these officers, then paying for their legal and filing fees so that they can declare bankruptcy. The city apparently hopes that this will take the awards off the books. It’s a crafty bit of legal maneuvering. It’s also a betrayal of both the public trust and a second betrayal of the victims in these cases. A man’s life was wrongly taken from him. Another man lost a decade of his life due to a wrongful conviction caused by the illegal actions of a Cleveland police officer. And all of this comes after a jaw-dropping report from the Justice Department finding pervasive and systematic abuse, widespread civil rights violations, routine use of force that violates the Constitution and virtually no accountability. The Justice Department report found the city’s police department to be lacking in almost every area it investigated. And that report, published a little over a year ago, follows a similar report from a decade ago. And of course, this is all happening as the shooting death of 12-year-old Tamir Rice has made the city a focal point of the national debate over police reform.
In theory, civil rights lawsuits serve two purposes: They make victims whole, and they deter similar violations from occurring in the future. The hope is that substantial awards in these cases will spur political pressure on public officials to change the policies that allowed the rights violations to happen. The deterrent doesn’t seem to be particularly effective, except in a few cases in which large settlements have prompted a city’s municipal insurer to demand changes under the threat of terminating coverage. There are a lot of reasons for that, but I suspect it’s mostly because elected officials calculate that the pushback from police unions and police agencies against any proposed reforms is a far worse political headache than earmarking a few million dollars in each annual budget to pay off the victims of police abuse.
That’s what happens in most places, and it’s disturbing. But what Cleveland is doing is far more sinister. There’s also an argument to be made that indemnification insulates individual actors from any real accountability. There’s certainly a lot of evidence for that argument. Over the past few years, we’ve seen lots of reports about cities that pay out millions of dollars each year to compensate victims of police abuse, while almost never holding cops accountable for misconduct, even in cases of egregious abuse or repeat offenders. One idea I’ve seen suggested is to end both indemnification and qualified immunity but make police officers purchase personal liability insurance. In theory, this would eliminate a lot of the political barriers to police reform and impose real consequences for misconduct. In practice, it isn’t difficult to envision the problems that might accompany a system that would essentially hand policing policy over to the insurance industry.
For now, we have the system we have. It’s certainly flawed, but what’s happening in Cleveland isn’t just unfair; if it’s allowed to happen, it means that the system no longer even aspires to fairness or justice. The city is not only shirking responsibility for the policies and lack of oversight that allowed these abuses to happen, but it’s also actively seeking to deny the victims the compensation that the justice system has determined they deserve. It’s just outrageous.
At least with the current system, a victim with a case strong enough to merit a settlement or judgment is made whole. The city pays. That provides at least a little bit of an incentive to fix the problem. Eventually, a city will either have to deal with rogue cops and implement better policies or continue to pay out millions. Cops who are found guilty of abuse or misconduct are less effective witnesses. The incentives aren’t strong enough, but they at least exist.
As Swenson points out, the same lawyers representing the city of Cleveland are representing the individual officers in their bankruptcy cases. The decision of whether to indemnify an officer can spur — and has spurred — litigation between officers and the governments that employ them. It seems like some awfully shady ethics for the same attorneys to be representing the city and the officers after the decision not to indemnify. It certainly gives the appearance of some sort of arrangement. And it isn’t difficult to see how other city officials adopting this policy could, say, promise to not press criminal charges, to let an officer keep his or her job, or to not stand in the way of an officer working elsewhere in exchange for an agreement to declare bankruptcy and release the city from indemnification. The result: Even the relatively weak incentive for change that these payouts provide is removed. The individual cops responsible even for misconduct severe enough to merit a judgment escape serious punishment. And the victims are never made whole. It’s the worst of all possible outcomes.
I’m not a lawyer, but this also feels like bankruptcy fraud. Or if it isn’t, it ought to be. At best, it’s a second violation of people whose lives have already been ruined by government abuse and an utter abandonment of the idea that public officials serve the public.
If I lived, voted and paid taxes in Cleveland, I don’t know if I’d be more angry or embarrassed.