Accepting a case involving claims of police misconduct, a catchall term that ranges from making a false arrest to inflicting brutal punishment on suspects, used to be a tough sell for many law firms. There was no guarantee of a payday, and the burden of proof needed to emerge victorious was seemingly insurmountable.
But now, amid growing public distrust of law enforcement and an intensifying spotlight on police brutality after a recent spate of deaths of unarmed black men at the hands of white police officers, more attorneys are taking on allegations of police misconduct. The trend is driven by the lure of big settlements, a growing body of evidence as more alleged victims record police interactions, and a high demand from potential clients who want to go after police departments they see as corrupt.
"There are so many cases happening right now, so for the limited amount of civil rights attorneys, there are only so many cases they can handle," said Daryl Washington, managing partner at the Law Offices of Daryl K. Washington, P.C., in Dallas. "This allows more attorneys from other places to get involved."
The monetary amounts cities are willing to pay for settlements and court judgments is on the rise. The 10 largest municipal police departments in the U.S. paid a combined $248 million in 2014, an increase of 48 percent since 2010, a Wall Street Journal study found. Claims filed against the New York Police Department rose 71 percent from 2004 to 2013, according to a 2014 report by the New York City Comptroller’s Office. The choking death of Eric Garner by a New York Police Department officer in July 2014 alone brought his family a $5.9 million settlement from New York City, the largest NYPD-related wrongful death settlement in history.
More Cases, More Attorneys
L. Chris Stewart, a partner at the Atlanta-based Stewart, Seay & Felton, said his firm has always looked at police misconduct cases, but for years it never took more than two or three annually. Now, Stewart's firm gets that many calls reporting claims of police misconduct in any given week.
"We really actually started pursuing a lot of them about five years ago," Stewart said of police misconduct cases. "In the past three years, they have been exploding everywhere."
Stewart represents the family of Walter Scott, an unarmed black man from South Carolina who was fatally shot by a white police officer in April. He was contacted by Scott's family to take the case after a family member recommended him, knowing he was the attorney for the family of Gregory Towns, an unarmed man who was killed by two police officers in April 2014 after they activated their stun guns on Towns 14 times while he was handcuffed. He said he has seen attorneys from all fields of law recently starting to litigate police misconduct cases.
— Karεn Ciѵil (@KarenCivil) August 23, 2015
Tony Romanucci's Chicago law firm, Romanucci & Blandin, which mostly handles civil rights cases, took its first police misconduct case about 13 or 14 years ago when it represented Vernon Hudson, a mechanic paralyzed after colliding with a police car during a chase in 2001. He has added two more attorneys to his team in the past couple of years just to take on police misconduct cases. Hudson was eventually awarded $17.6 million, a record verdict in Chicago, Romanucci said.
Today, more students coming out of law school are interested in doing at least some civil rights work relating to police litigation, compared to 15 to 20 years ago, David Rudovsky, a senior fellow at the University of Pennsylvania Law School and a civil rights attorney, said. Some are getting hired at firms adding more attorneys to their payroll to handle the increase in police misconduct cases.
"I can almost hire someone right now just to take the calls we get on a weekly basis [regarding police brutality]," Washington said. "That's how much the activity has increased; we were getting calls before, but people were not pursuing it the way they pursue it today."
Police misconduct cases have multiplied as alleged victims have become less fearful of reporting complaints, some attorneys say. Instead, people who say they have had their rights violated by police are now eager to come forward.
"People finally feel like something can be done about it," Washington said.
The most obvious change in police misconduct litigation in the past couple of years has been the proliferation of cellphones with video capabilities, Ameer Benno, a New York City civil rights attorney, said. While there hasn't been an increase per se in the instances of alleged police misconduct, there has been a rise in documentation of police actions -- by cellphones and police cams.
— The Oregonian (@Oregonian) August 24, 2015
In some cases, video footage has led to charges being filed against police officers. University of Cincinnati police officer Ray Tensing wore a body camera in July when he fatally shot Samuel DuBose, and he was charged later that month in DuBose's death. Police officer Michael Slager was also charged with murdering Walter Scott in June, partly based on a citizen's video of the shooting.
"It now provides powerful corroborative evidence for plaintiffs," Benno said. "Before it was mostly 'he said, she said.' There was a willingness to want to credit police testimony [over someone else's]."
Chris Fitzgerald, an attorney in New York City who focuses on civil rights and personal injury litigation, compared what phone cameras are doing for the justice system and civil rights now to what television did for civil rights in the 1960s, with the broadcasts of police brutality during marches from Selma to Montgomery, Alabama, which led to the passing of the Voting Rights Act.
"It's not that the police are doing anything different," Fitzgerald said. "The public is being presented with this undeniable evidence of misconduct."
— IBTimes (@IBTimes) August 19, 2015
To Take Or Not To Take A Case
Police misconduct litigation was virtually nonexistent until about the 1970s, Rudovsky said. From the 1970s through the 1990s, police misconduct litigation was mostly the province of civil rights attorneys, and only within the past 15 years have other types of lawyers taken on police misconduct cases, Rudovsky said.
Because of the lack of precedent in police misconduct litigation, the cases were very hard to handle for a long time. Now that a significant body of law has developed around the issue of police misconduct, it is easier to step into without necessarily being an expert, Rudovsky said.
But the legal work for police misconduct cases is still very difficult and often very expensive. Police misconduct cases are often litigated in federal court, Washington said, meaning attorneys must overcome qualified immunity.
Qualified immunity protects police officers by allowing lawsuits to move forward only if the officer violated a "clearly established" right, according to the Legal Information Institute, a nonprofit group that maintains online legal records at Cornell University in Ithaca, New York. To prove a right is clearly established, courts compare the officer in question's actions against that of a hypothetical "reasonable" officer. This requires experts to come in to say whether an officer's actions were justified, Washington said.
If the defendant in a police misconduct case can prove no right was violated or the right allegedly violated was not clearly established, then that defendant is entitled to immunity, Benno said, meaning the suit can be dismissed. Ultimately, it is a judge's decision as to whether the right is established.
— IBTimes (@IBTimes) August 18, 2015
"What is 'established' is a murky area," Benno said. "You can find on one particular issue 100 different opinions."
Because qualified immunity relates to civil rights cases litigated at a federal level, personal injury attorneys, who operate primarily in state court, don't typically deal with qualified immunity challenges, Washington said.
"It's generally alleged by police officer, and what they're alleging is that their acts were reasonable and that they didn't do anything unreasonable," Washington said of qualified immunity.
An example, Washington said, would be if a police officer fatally shot someone running away, but that suspect did not pose any immediate threat to the officer or anyone else, then that officer's actions would be considered unreasonable, meaning they possibly wouldn't be granted qualified immunity.
Police misconduct cases are also typically taken on a contingency basis, so if an attorney spends years on a case and loses, he there would be no payment for time working on the case, Benno said. Another reason an attorney may not want to take the case is the simple fact it is a fight against the government, which has a vast amount of resources to win a case.
Despite the difficulties, more attorneys have remained committed to litigating police misconduct cases, some of which have been settled for large amounts of money, a considerable incentive to work these types of cases, Rudovsky said.
But when compared to personal injury cases, many police misconduct cases pay out very little, especially considering how much time and effort go into them. The police misconduct cases that aren't covered in the media are a better representation of what typically happens in these cases — they bring in very small settlements or are lost by the plaintiff entirely. While a few cases can pay out in the millions, most of the cases have much lower sums, averaging out at about $100,000, Stewart said.
The increase in the amount of attorneys who tackle police misconduct litigation has added to competition in the field. Richard Cardinale, a civil rights attorney in Brooklyn who mostly handles police misconduct cases, said he doesn't have as many people coming through his door asking him to litigate a police misconduct cases as he has in the past.
"There's a larger pool of people looking for lawyers, and they're calling personal injury lawyers," Cardinale said.
Would love it if more black celebrities shared their stories of police misconduct. @wizkhalifa's story is one of many that we need to know.
— Darnell L. Moore (@Moore_Darnell) August 23, 2015
Possible Negative Effects
Some attorneys, however, are worried about the possible ill effects of so many attorneys taking police misconduct cases. Because personal injury attorneys don't regularly practice civil rights litigation, they might not know all the nuances of the field. Some may make filings they aren't supposed to, or leave other filings out they were supposed to make, Cardinale said.
@blackaussie1 Even though most states don't allow for 10 days. Are we to believe police misconduct cases in MD are harder to investigate?
— ACLU of Maryland (@ACLU_MD) August 24, 2015
Knowing how to screen cases is also key to police misconduct litigation. If attorneys take every police misconduct case that comes across their desks, the courts may become saturated with these types of cases and judges may be more inclined to dismiss them or push for low settlements, Cardinale said.
"Personal injury attorneys don't know how to screen cases," Cardinale said. "They think they're going to get money, so they take anything that comes through their door, making juries and judges cynical."
Fitzgerald said attorneys have to be careful when bringing police misconduct cases to a court.
"Maybe a bad case gets appealed and makes a bad law; those of us who like to call ourselves civil rights lawyers are concerned about that," Fitzgerald said.