Wednesday, June 15, 2011

With Budget Deadline Looming, City Lawsuits Come Under Scrutiny

Monday, June 13, 2011

With the City budget deadline looming, the City Council is pouring over the New York City's multi-billion dollar budget -- trying to find the hundreds of millions of dollars needed to prevent teachers layoffs and fire company closures. One area of city spending getting additional scrutiny is the hundreds of millions paid each year to settle lawsuits.

Last year, the city paid an historic $136 million to settle claims against the NYPD. More than 40 percent of those settlements stemmed from civil rights claims for things like excessive force and false arrest.

Brooklyn's East New York's 75th precinct is one of New York's poorest neighborhoods, but a crime fighting success story. Murders are down from 109 in 1990 to just 33 last year. But the precinct is also one of the most aggressive in the city when it comes to 'stop and frisks,' a controversial strategy that overwhelmingly impacts men of color living in high crime areas.

Richard McDowell, 30, said he was in his favorite bodega on Liberty Street back in the fall of 2009, getting some groceries and a beer.

"Two officers came inside, passed by two people in the store to come directly to me and ask me to step outside and I did -- had my hands up immediately," recalled McDowell. "I did not want to cause any problems or anything."

Once outside, McDowell said he was handcuffed.

"Now, I knew something was wrong because I hadn't done anything and I turned around and looked to them and said 'what was wrong, what are you doing?' and that is when everything went bad," said McDowell.

McDowell said the arrest soon flared into a scuffle. "They started hitting me in the abdomen area and in my chest. What had happened was one of the officers near these steps somehow fell down and hurt his ankle and immediately after that went down they called 'man down' on the radio as if i had shot somebody. They were still hitting me at the time and I was pinned from behind and being hit from all sides."

McDowell says he was beaten and maced. He was charged with assault, resisting arrest, possession of marijuana and consumption of alcohol. He was held for 48 hours in the precinct. McDowell said he has spent many if his 30 year out on the streets, --- his mother died of cancer when he was 13. He said he has a record for marijuana possession, but not for anything violent. And he claims on this day he did not have any pot on him.

"When the judge first saw me for arraignment he looked at my file and said he thought it was laughable," said McDowell. "The opposing counsel was so upset that he threw the file and than kicked the desk when they gave me release on my own recognizance."

McDowell was called before the Grand Jury twice and convinced the jurors that he was innocent. All charges against him were dismissed.

"That's the whole thing my record will tell you. If i am guilty of something and I am caught, i will plead guilty. But if I am innocent and I had nothing to do with it i will fight. I always will fight," vowed McDowell.

From Suspect to Plaintiff

And fight he is with a Federal civil rights law suit being brought against the City by attorney Leo Glickman, whose law firm specializes in cases like McDowell's. Glickman said McDowell's case is not isolated.

"It is the kind of incident that does not get reported in the newspaper but that happens every day. There is no response. There is no apology. Someone goes through the system and they are released or they are not indicted and they are supposed to go on with their lives," said Glickman. "Meanwhile, they have spent a few days in the system and live with the horror of the criminal justice system."

Glickman said his clients are usually poor people of color who are angry at how they were treated by the police and looking for redress. He says 99 percent of the claims he brings are settled out of court.

"And when we ask them what do they want to get out of this litigation, often the answer is 'I want the police officer to be fired' and we tell them 'That's not likely to be happen,'" said Glickman.

There is a structural reason for that. The city's Corporation Counsel handles all of the suits brought against the NYPD, but only regularly provides specific details to the NYPD on cases that are expected to settle for two hundred and fifty thousand dollars or more. That's only two percent of the cases that are filed. That means the majority of claims fly under the NYPD radar.

Cynthia Conti-Cook is an associate in Glickman's firm. She said she has identified police officers who repeatedly surface in Civil Rights settlements that don't make the newspaper. She says should require follow up.

"There's no note of how many law suits are in his [a police officer's] personnel file," Conti-Cook says. "There's no knowledge among his supervisors that he is a civil rights liability for the department."

Glickman said street policing policies can mean brisk business for his firm. They get 30 percent of the value of their clients' settlement.

"We represent clients quite often who have been stopped and frisked. You know they have spent 30 minutes in a sort of street detention and than they are just released and we might get seventy five hundred dollars for that," estimated Glickman.

Plaintiff Richard McDowell awaits his day in court or a settlement. He has moved to Portland, Maine, where he says the shelters are more humane and the attitude towards pot less punitive.

"You can be able to grow your six plants of your own and everything and they even sell you seeds,"said McDowell. He also says the prospects for day labor are better.

Closing the Loop

Legislation proposed by City Council Public Safety chair Peter Vallone would bring more transparency and accountability to the whole police tort claim process. Vallone's bill would require the City's lawyers disclose to the City Council specifics on all settlements reached on behalf of the NYPD including the officers and precincts involved.

According to statistics from City Comptroller John Liu's office, the cost of settling civil rights claims against the NYPD jumped by 15 percent in the last two years.

The NYPD wants to see more of these claims go to trial. They may get their wish. The City's Corporation Counsel hopes to hire 28 new lawyers to handle the civil rights claims. When there is no NYPD wrong doing the Department believes the out of court settlements undermines the public's trust in the department.

Getting Clues Whatever Their Source

UCLA Law Professor Joanna Schwartz has studied and written extensively on how the nation's local municipal police departments use the information contained in lawsuits brought against them. She says even unsuccessful claims can contain worthwhile clues that can improve police performance.

"The NYPD and most police departments around the country do not systematically gather information from law suits with an eye towards learning from those suits," said Schwartz. "They don't collect information about which officers were sued, what claims were alleged, what information was generated during the course of litigation, what the result of the case was, or how much was paid." said Schwartz.

Schwartz said even though taxpayers and insurance companies are paying out hundreds of millions annually to settle claims against local police, just a handful of jurisdictions mine the claims for lessons learned.

"There is not good data about how much is paid out in lawsuits each year, " said Schwartz. "You have to remember, there are 18,000 police departments across the country and so getting that kind of figure would be very hard. But if you do simple math, adding up the large departments, you have to think it is over half a billion dollars a year, that's my estimate." This huge sum is being paid out even as local governments lay off thousands of cops across the country to make up for state and Federal cuts in local aid.

Schwartz studied five departments that made it a point to study the information contained in lawsuits brought against them. Schwartz said the Los Angeles Sheriff's Department, and police departments in Seattle, Portland, Denver and Chicago "systematically gather and analyze information from lawsuits." Schwartz said the departments successfully use the data "to identify and correct personnel and policy failures," as well to double-check the integrity of their own internal investigations.

"A small case that is resolved for a small amount of money can be the source of department-wide policy change," said Schwartz. "Even if a case doesn't result in a large settlement, that policy change may very well prevent larger suits and larger mishaps down the road."

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