Perception v. Reality on Police Brutality

Courts have not ruled that officers must deescalate the situation before using deadly force, but is the public demanding it?

At the 2017 PRIMA Annual Conference, a session discussed real-world examples of high-profile police shootings where media coverage and public perception affected litigation with allegations of police brutality. The speakers included:
  • Michele Molinario – Partner, Jones Skelton & Hochuli
  • John DiCaro – Partner, Jones Skelton & Hochuli
Are there more officer-involved shootings now than previously? There are no firm statistics on this, but the Washington Post estimates close to 1,000 shootings last year. Thus far in 2017, there have been fewer than 400 shootings. In spite of the publicity around officer-involved shootings, very few officers are convicted of a crime because of a shooting. Media coverage and celebrities have been highlighting some police shootings without full command of the facts,  which taints public perception of law enforcement and taints potential jury pools. The speakers discussed certain high-profile cases: Laquan McDonald
  • Oct. 20, 2014
  • Chicago
  • Carrying a knife and breaking into cars
  • Slashed tires on a patrol vehicle
  • Disobeyed verbal demands
  • Officer shot McDonald 16 times within a few seconds of arriving on scene.
Was the shooting justified? The first question to ask is, “What were the police investigating at the time of the shooting?” In this case, the person was known to be armed and committing crimes. Another question is always whether the person shot was a threat to officers at the time of the shooting. There were reports he was acting “crazed,” had threatened officers and had lunged toward officers. According to police training videos, a minimum reactionary gap of 20 feet is required for officers to draw their weapon and fire if an armed person attacks them. If the distance is less than 10 feet, there is little chance the officer can draw a weapon and fire before being stabbed. See also: Police Shooting Shows Gaps in Work Comp   Among the issues that need to be addressed during trial:
  • Did the officer assess the scene prior to firing?
  • Was more force used than necessary?
  • Inconsistencies between video and police report.
From the media standpoint, the focus was on the number of shots fired, which many felt was excessive. They also focused on the fact that the suspect was not moving toward police at the time shots were fired. Some of the shots were clearly fired while the suspect was already on the ground. Among the discussion topics from the audience included the fact that it is very difficult to hit a moving target with a taser, and that tasers are not very effective against someone on PCP (which McDonald was). The officer in this case has been charged with first-degree murder and is awaiting trial. The city settled the civil case for $5 million. What level of force is reasonable?
  • Severity for the crime and other circumstances to which the officer was responding?
  • Whether the plaintiff posed an immediate threat to the safety of officers or others.
  • Whether the plaintiff was actively resisting or attempting to evade arrest by flight.
  • The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that was necessary.
  • The type and amount of force used.
  • The availability of alternative methods to subdue the plaintiff.
NOTE: Each state has laws pertaining to criminal charges against police officers. Generally, reasonable justification is an affirmative defense to a criminal charge. The jury standard is beyond a reasonable doubt. Courts have said that “reasonableness” must be judged from the perspective of officers on the scene vs. a 20/20 hindsight analysis. NOTE: 42 USC 1983 statutes allow individuals to sue police officers and municipalities civilly for depriving someone of civil rights. Thus, civil cases in police shootings are usually federal cases, and the criminal cases are usually state. Walter Scott
  • April 4, 2015
  • Charleston, SC
  • Pulled over for traffic violation (broken tail light)
  • Suspect attempted to flee and was shot by officer multiple times
Officer claimed he felt there was a threat to his safety and claimed that the suspect tried to grab his taser. Before the filming started, apparently there was a physical confrontation, and the officer tried to tase the individual and missed. The officer tried to tase a second time, which was not effective. At that point, the suspect started fleeing and was shot by the officer. Courts have held that deadly force can be used against a fleeing suspect under certain circumstances, including the threat of deadly force immediately prior to the suspect fleeing. The officer in this case has been charged with murder, and the trial ended with a mistrial. 11 of 12 jurors favored conviction. A retrial has been scheduled. The officer was also charged under civil law. He plead guilty under federal law and is awaiting sentencing. He could face a life sentence. Tamir Rice
  • Nov. 22, 2014
  • Cleveland
  • Police dispatched by 911 call with reports of person in the park with a gun threatening individuals.
  • When officers arrived at the scene, they warned the suspect three times before firing.
  • The video showed the plaintiff going to his waist for something under his jacket, at which time officers fired.
This case caused a lot of media attention because the suspect was 12 years old, and the pistol in his hand was a toy. The 911 caller told the dispatcher that the suspect was a child and that the gun was probably a fake, but this information was not given to officers. They were only told there was an armed suspect. The officer who fired the shots had been previously terminated by a different police department, which raised allegations of improper hiring/supervision. The city settled the civil suit for $6 million. A factor in this settlement was likely the fact that the dispatcher relayed inaccurate information. The officers were not charged. Eric Garner
  • July 17, 2014
  • Staten Island, NY
  • Garner approached on street by law enforcement for illegally selling cigarettes.
  • There was a physical confrontation, and the suspect was put in a choke hold
  • Cellphone footage shows the suspect saying multiple times, “I can’t breathe,” while he is in the choke hold.
There was no criminal indictment of the officers. The city settled the civil suit for $5.9 million. The coroner ruled the cause of death was the choke hold. See also: Change Accelerates in Core Systems   Conclusions
  • Over the last four years, cases occurred in seven states with large populations (CA, NY, FL, PA, OH, TX, IL)
  • Most verdicts on cases taken to trial have been defense verdicts. More cases settle than get a plaintiff award at trial.
  • With all the media coverage, there is not necessarily more plaintiff verdicts – even in perceived liberal jurisdictions.
  • Public outcry tends to lead to quicker settlements of civil cases.
  • Courts have not ruled that officers must deescalate the situation before using deadly force, but is the public demanding it?
  • Some municipalities are increasing training on deescalation techniques.
  • The speakers indicated they did not see a difference in settlement behavior between self-insured and insured municipalities.
  • The attorney fees can often be significantly more than any damages awarded because, if the plaintiff wins anything, fees are covered. Juries are not advised of this.

Mark Walls

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Mark Walls

Mark Walls is the vice president, client engagement, at Safety National.

He is also the founder of the Work Comp Analysis Group on LinkedIn, which is the largest discussion community dedicated to workers' compensation issues.


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