From the number of shots
fired by an officer to the content of emails sent between cops, many
factors can work against officers and agencies in the courtroom
By Richard Spiers
A verdict or settlement against a public safety agency
can be decided on the smallest of incident details –often, something we
don’t see or we regard as insignificant in our initial investigation. A
seemingly insignificant detail gets elevated in the public eye, or an
aspect of the case stirs up emotions that are already heated in the
And it’s not just use of excessive force cases,
although those tend to get the most publicity. There are plenty of
cases that demonstrate the need for officers, agency counsel and
administrators to 1) watch for “red flags” that may bring scrutiny on the agency and
2) remember that we cannot expect a plaintiff’s attorney or a jury to
analyze every issue the same way the experienced police professionals
Let’s look at a few cases to better demonstrate these two points.
1. Number of Shots Fired
the years, I was involved with many excessive force cases in which
independent investigators found the force to be justified. On several
cases the number of shots fired by the officers turned out to be what
raised the exposure beyond what agency leaders had originally
One case involved multiple officers trying to arrest
an armed woman who had locked herself into her bedroom. She would only
open the door with her gun pointed at her head.
A negotiator was
brought in and it took several hours to get her to open the door and
start moving out. As she walked out of the room, her gun was in her hand
and pointed at her head. As she walked, the gun moved just a slight bit
forward and it appeared she was going to fire at the officers. The
officers fired at her and she was fatally shot. The officers in this
agency had no body cams, so there were no videos involved.
The city where this occurred had experienced several highly publicized officer-involved shootings,
so an immediate investigation was conducted by the state and another
group. The investigation determined all the officers were justified in
Because of the investigation result, the city became
unconcerned with this case and were unwilling to even consider keeping
it out of a courtroom. The deceased was not married and had no children,
and her financially struggling father was the only named plaintiff in
the suit filed. It appeared they did not have a very strong
relationship, so I suggested the city consider making a relatively small
offer, just to see how the father responded. The city would not agree
to put any money on the table, so the case eventually went to trial.
the investigation finding the shooting justified, I’d warned the city
there was one aspect of this case that could backfire with a jury: The
woman had been hit by seven bullets. The city continued to believe the
independent investigation would exonerate the officers. Unfortunately,
the jury generated a $7 million verdict, ruling too many shots were
fired and two of the shooting officers were unjustified. This case could
have probably been resolved for a much lower amount if an effort had
been made to settle it.
The number of shots fired continues
to be a highly scrutinized factor in police shootings, elevating some
cases to the national level. Two notable recent incidents involved the
fatal police shootings of Laquan McDonald in Chicago and Stephon Clark
in Sacramento, both black men. McDonald was armed with a knife and
Clark was found to be unarmed, although officers initially believed he
had a gun.
A Chicago police officer shot McDonald 16 times, which
quickly became a refrain in the mass protests that followed. The city
erupted and although the long-term repercussions of the case are far
from over, it has already led to the police superintendent losing his
job, the local state’s attorney being voted out, and an officer being
found guilty of second-degree murder. Not to mention, the city, which is
self-insured, paid the deceased family over $6 million to resolve the
In the Clark case,
Sacramento police fired 20 rounds, hitting Clark seven times. These
numbers were repeated in media reports, along with a quote from his
grandmother: “They didn’t have to shoot him that many times.” Protests
again ensued, and the case has fueled a push in the California
legislature to place significant restrictions on police use of force.
these cases are complex and certainly the number of shots fired is not
the only aspect that drew public and media scrutiny. But it was a
rallying cry and agencies and insurers should be sensitive to how the
public views incidents where many shots are fired and consider this
factor when settling the case.
2. Careless Texts and Messages from Involved Officers
number of shots fired is not the only aspect that can disrupt an
otherwise solid case. One case I dealt with involved the shooting of an
intoxicated man who engaged in a fight with a person who lived near him.
were called to the scene and could not get the man to respond to their
orders for him to stop. He ended up being fatally shot. This incident
occurred before the Ferguson case,
so the incident did not originally generate much negative publicity.
Following the Ferguson case, however, the local media re-examined this
case, asking why the officer didn’t use a TASER device on the suspect.
plaintiff attorney learned the officer tended to send email messages to
other officers using the city’s email system. In one such email –
unrelated to the case at hand – the officer said he had pulled over a
person known in the area and ended his message by saying, “I should have
shot him.” It appears the officer was only trying to be “funny,” but
the attorney was able to get the message entered into evidence, which
raised the value of the case to several million dollars.
often issue demands to review email messages and other internal
communication. This is yet another example of why agencies need strong
policies on use of the agency’s internal communication systems and need
to train officers on such policies repeatedly.
3. Questions of Officer Negligence
years ago, on Halloween night, an officer saw two men fighting on a
sidewalk; one was wearing a shirt with local gang colors. Although the
officer could not determine if this was a real fight, he pulled over to
break them up. This was one of the town’s busiest streets, but it had
parking space near the curb, so stopping his vehicle didn’t disrupt
traffic. Because many children were trick-or-treating in the area, the
officer could not let both men stand on the sidewalk, so he had one man
stand over by his car.
As the man stood there, an intoxicated
driver drag-racing another driver down the main street lost control of
his vehicle and ended up striking the rear of the police car, pinning
the original subject. His legs were both amputated and he died shortly
thereafter. The officer was also struck by the car and thrown over 25
feet; he spent close to 6 months in the hospital.
A suit was
eventually filed – against the city and the officer, not the intoxicated
driver. You can probably guess why. The intoxicated driver had no
insurance and no money available to pay for having caused the accident.
It looked very possible this case could get resolved because the state’s
immunity rules would apply: The officer did not block traffic, he was
also injured and he had pulled over for a good reason. The deceased was
an illegal immigrant with history of street fighting. His family,
alleged to be living in Mexico, were led by an attorney who kept making
multimillion-dollar demands, which drove the case to trial.
cases involving police officers, the plaintiff’s history with law
enforcement (e.g., been arrested several times, history of street
fighting and public intoxication) is rarely allowed into the case –
judges will normally rule this information has no impact on what
happened. The same cannot be said for officers, however. Courts
routinely allow the consideration of similar previous complaints filed
against the officer.
At this trial, the plaintiff’s attorney
played the character hand hard, portraying the deceased as a great
father who took care of his “young” children. This was a stretch at
best. On one of the later days of the trial, the man’s wife and children
(the youngest was 15) were present in the courtroom. They were all
living illegally in the United States and the wife had left her husband
several months before he was killed.
The state’s laws in this case
allowed for the overruling of immunities if a jury finds a defendant’s
behavior to be extremely negligent. Defense counsel and the city could
see no extreme negligence caused by the officer, but the plaintiff’s
attorney spent a whole court day trying to show otherwise. After more
than a week of testimony, the jury took about 45 minutes to reach their
verdict: They awarded the plaintiff $7.5 million. The jury overrode the
immunities after the plaintiff’s attorney told them the officer was
wrong not to turn on his patrol vehicle emergency lights when he pulled
over and for making the man stand by the patrol vehicle. Neither defense
counsel nor the city ever thought the lack of lights would change a
The lesson here: Be ready for a character assault
on your officers and for attorneys to try to manipulate the jury’s
impression of the plaintiff’s character. Perhaps more important, don’t
rely on immunities to protect you from a negligence claim. Play devil’s
advocate to anticipate the arguments a plaintiff’s lawyer may bring up
to try to prove negligence, and have research, policy and best practices
lined up to demonstrate why your officers took the actions they did.
are many other areas that can affect a case, ranging from the venue
where the case is filed to a similar event that may have occurred
recently in your entity or in a nearby area. The media’s response can
have a large impact. I dealt with several cases where witnesses changed
their reports to the investigators after the media started posting
negative reports regarding the case. Your agency’s reputation can also
affect the value of the case.
Successfully defending your officers
and your agency in these situations requires awareness of the entire
sphere of influence on the case – don’t just focus on the known facts
surrounding the incident. Plaintiff’s attorneys often study cases from
around the country to identify aspects that may anger a jury. As the
defense, you must do the same. Closely review all investigation reports
to determine if there is any part of the investigation that could grab a
jury’s attention should the case go to trial. In addition, do not
hesitate to discuss the case with your insurance carrier. They may have
learned some lessons the hard way that they can share with you.
bottom line: Don’t rely on a jury, the media or the public to see a
case through your eyes. We’re promised trial by a “jury of our peers,”
not by a group of like-minded individuals who understand the
complexities of law enforcement.
About the author
Spiers, a market ambassador for Lexipol, started in the insurance
industry in 1980 and has been a claims executive in the reinsurance and
excess marketplace since 1985. He was with Genesis Management and
Insurance Services, a subsidiary of General Reinsurance, for more than
20 years, until the end of 2017. Rick has extensive experience handling
the wide array of claims faced by public entities, K-12 school districts
and the higher education sector. Based in Chicago, he has also worked
for Transamerica Insurance Group, Northbrook Excess and Surplus
Insurance Company, CNA Insurance and Allstate Reinsurance. He is a
graduate of Northern Illinois University, a member of the Society of
CPCU, and holds associate designations in risk management, claims and
reinsurance. Rick has been developing and presenting insurance
industry-related training sessions to a variety of client and industry
groups for 20 years.
I would say the answers to the last two questions were NO.
Posted by Ed at 7/29/2019 10:12:36 AM
No one except a Police Officer can understand the dynamics both physical and mental that go into the decision making process wherein you have a second or two to respond to a threat. Anyone can win Friday night's game on Saturday morning. Reviewing and commenting after the fact is easy try living it in real time.