Police misconduct litigation: keeping an open mind

[Guest column by Max McCann. McCann is a lawyer for the city of New York and Adjunct Instructor of Clinical Law at Brooklyn Law School. The views expressed are those of the author alone. A preview of the column ran at the Daily Caller, Sept. 23, 2013]

Most of the time, reporters avoid writing a story about an arrest in a way that assumes the guilt of the person charged. But when wrongdoing is charged against law enforcement itself, in the form of civil complaints against police officers, reporters too often treat plaintiffs’ contentions as if somehow pre-validated as findings of genuine misconduct.

Among the many stories written about lawsuits against the NYPD, examples of this type of reporting are easy to find. One typical headline: “14 Occupy Wall Street Protesters Sue NYC Over Unconstitutional NYE [New Year's Eve] Arrests,” which seems to assume that the arrests were, in fact, unconstitutional.

Many lawyers and activists are happy to encourage this mistake. A lawyer who represented a client in a sexual harassment case against an NYPD lieutenant that resulted in a settlement was quoted as saying, “[a]lthough our clients are satisfied that the litigation is over, it is further proof that the once-silent issue of same-sex harassment is on the rise.” Likewise, in a Daily News article, one activist was quoted as saying, “[w]here there’s this much smoke, there’s fire.”

That is one reason we should be cautious when we see headlines like this one, reciting that civil rights lawsuits against members of the NYPD are on the rise, costing New York City $185 million in fiscal year 2011. Often these reports simply take it for granted that — to quote the activist above — where there’s this much smoke, there must be fire. Why would so many civil rights lawsuits be filed, other than a high rate of misconduct by members of the NYPD?

One possible explanation is that many persons who get arrested find the experience disagreeable and strike back by filing a complaint, which helps solidify in their own and their families’ minds that the trouble they had with the law was not their fault. Another, which may strike readers as more surprising, is that even relatively weak cases can be profitable ventures for the lawyers who file these cases. In fact, the lawyers often win more than the actual plaintiffs.

Under current federal law, if a jury in a civil rights suit awards a plaintiff even a small sum of money, the municipality has to pay that amount plus the plaintiffs’ attorneys’ fees on top of that. Since the lawyers bill at upwards of $500 or more per hour, a minor award to plaintiffs can readily generate a large fee entitlement. Here are a few notable examples from lawsuits against the NYPD.

  • In Fryar v. City of New York, filed in Brooklyn federal court, the plaintiff claimed that he was unlawfully arrested and spent the night in jail as a result. At trial, the jury awarded the plaintiff $600, and the city had to pay his lawyers more than $78,000, even though the judge found that they had “engaged in bad faith discovery practices.
  • In Vilkhu v. City of New York, also filed in Brooklyn federal court, the plaintiff claimed that police used excessive force against him. At trial, the jury awarded the plaintiff $20,000, and the city eventually settled fees with his lawyers for approximately $500,000.
  • In Bradley v. Jusino, filed in Manhattan federal court, the plaintiff claimed that he was unlawfully arrested during an anti-war protest. After two mistrials, a jury awarded the plaintiff $20,000, and his lawyers received $750,000.

Although these are not typical outcomes, they show that plaintiffs’ lawyers can have huge financial incentives to bring marginal, not just high-value, claims to the attention of the courts. Making matters worse, attorneys’ fees are awarded after the trial by the judge, so the typical jury has no idea that its award of a few hundred dollars to the plaintiff may trigger a five or six-figure payout to the plaintiff’s lawyer.

Furthermore, the risks for the plaintiffs in these lawsuits are relatively low. If someone brings a frivolous suit against a police officer, and the city spends the resources required to win the case at trial, the plaintiff is unlikely to have to pay the city attorneys’ fees. That means, if the plaintiff wins, the taxpayers are on the hook for the plaintiff’s attorneys’ fees as well as the city’s. If the police officer wins, the taxpayers are still on the hook for the city attorneys’ fees.

Given this lose-lose situation, the city has a significant incentive to settle these cases prior to trial, generating a vicious cycle: the prospect of an easy settlement encourages more lawsuits.

Of course, a quest for attorneys’ fees is not the only reason plaintiffs’ lawyers go to court. Some are, no doubt, genuinely outraged about what they perceive as the unfair treatment of their clients. But in estimating the significance of any rise in civil suits against police officers, it’s worth keeping in mind that this is not just the pursuit of social justice. It’s an industry.

 

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