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November 23, 2014

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Law and order:

As lawsuit filings against Metro Police climb, settlement costs soar

Cases of excessive force by Metro Police, whether in a traffic stop gone awry or a fatal shooting, take their toll in lost lives and lingering physical and emotional trauma suffered by victims.

Such instances of police misconduct also are costing taxpayers at an increasing rate in the form of expensive litigation and high-dollar settlements.

Since 2011, Metro has paid out more than $5 million in legal settlements. That figure could grow Monday when officials consider a $1.5 million settlement with the widow of Stanley Gibson, an unarmed veteran who was shot and killed by a Metro officer in December 2011.

The number of federal lawsuits filed against the department has been on the rise in recent years, with 43 filed in 2012 compared with a low of 24 in 2008. Metro currently is defending 153 open lawsuits in state and federal courts, according to records provided to the Sun. About half of those are federal civil rights complaints; the rest mostly involve auto accidents and employment disputes.

The amount the department has spent has also been increasing compared with the previous four-year span, in large part due to a few high-profile cases.

Included in the recent settlements are $1.7 million to the estate of Trevon Cole, who was unarmed when police shot and killed him in a 2010 raid; $1 million to relatives of Dustin Boone, who died in 2009 after being put in a choke hold by Metro officers; and $1.5 million to Dwayne Jackson, who served nearly four years in prison for a robbery he didn’t commit after being misidentified in a DNA mix-up, although no lawsuit was filed in that case.

Money for the settlements comes from a self-insured liability fund maintained by the department that currently has about $17 million in it. The fund pays for liabilities ranging from eyeglasses officers break while on duty to the million-dollar legal settlements.

The amount paid in settlements can vary drastically from year to year, depending on the speed of the legal system and the types of cases filed.

Metro Police declined to comment on litigation against the department for this story and instead will present a report on lawsuit settlements and spending at today's Fiscal Affairs Committee meeting. The joint city-county Fiscal Affairs Committee oversees Metro's budget.

The department generally looks to minimize costs and potential exposure by settling most lawsuits before they get to trial, committee members said. But Metro is not afraid to defend itself in select cases, some of which have gone on for years and have cost the department $2 million to $3 million annually in outside attorneys' fees and other court expenses.

Still, Metro has spent less in recent years on settlements than other departments of a similar size and is recognized by criminal justice experts for being one of a handful of departments nationwide with risk-management staffers dedicated to dealing with and reducing incidents that can lead to lawsuits.

But with Sheriff Doug Gillespie seeking an increase in the sales tax to avoid staffing cuts in the face of a $30 million budget deficit, the increasing cost of lawsuits against the department raises the question of how much spending is too much and whether there are any lessons about police conduct to be learned from the complaints.

• • •

It started with a knock in the middle of the night.

Charles Barnard roused himself, put on jeans and turned on a light, illuminating the Nativity scene by the front door. It was early December 2001.

“Who’s there?” he called several times before a man shouted back.

It was Metro Police, threatening to kick down Barnard’s door if he didn’t open it.

When he did, Barnard was greeted by three officers with their weapons drawn, according to a federal lawsuit filed against the department in 2003.

What followed reads like a slapstick-comedy sketch, but in reality it led to life-altering injuries and a decadelong legal battle.

The officers said they were there to apprehend Barnard’s brother, who was sleeping inside, but handcuffed Barnard anyway.

As an officer maneuvered around the tiny apartment patio, he stumbled over a flower pot and became entangled with the handcuffed Barnard. The ensuing fracas led another officer to trip and ended with Barnard in a choke hold, straddled and pepper sprayed, according to the version presented in Barnard’s lawsuit.

Barnard was arrested for battery on a police officer, but the charge eventually was dropped.

The incident left Barnard with back injuries that have required nine spinal surgeries so far with more to come, limiting the former private investigator’s ability to work.

Barnard filed a federal lawsuit against the department in 2003. The lawsuit has been dismissed, reversed on appeal, decided in Barnard’s favor by a jury in 2011 and appealed another two times. Barnard was awarded $1.6 million plus attorneys' fees. Metro faces a Nov. 10 deadline if it wants to appeal the case to the U.S. Supreme Court.

Barnard’s legal odyssey is indicative of the steep challenge plaintiffs face in pursuing legal complaints against Metro.

“The cases can go on for years,” said Cal Potter, an attorney who has built a reputation on suing Metro, "literally seven to 10 years.”

Before a suit can proceed to trial, a number of legal hurdles must be cleared, said Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada. Plaintiffs must prove an officer violated their constitutional rights and is not protected under qualified immunity provided to officers following “clearly established law.” Those filing suit also must show Metro is liable because the officer was acting under the department’s authority.

The difficult and time-consuming process means “it’s almost not worth taking on these cases” unless there is clear evidence of excessive force or other misconduct, Lichtenstein said.

Click to enlarge photo

Charles Barnard talks about his use of force lawsuit against the police department July 12th, 2013.

“If you don’t have significant injuries, you’re probably not going to get very far. That’s the just the reality of it,” he said. "There may very well be people whose civil rights who have been violated that really don’t get redress.”

Beyond the time involved, Potter said these cases are difficult because many clients don't get the resolution they're seeking most: discipline for the officers behind the alleged misconduct.

“We’re not going to get a badge,” Potter said. “That’s a whole separate area of law that the officers go through.”

In Barnard’s case, one of the officers involved stayed on the force until 2007; another left in 2012. Both left in good standing. The third is still with the department and in May was honored by President Barack Obama for heroism.

• • •

Just because a jury sides with a plaintiff or the department decides to settle a case, doesn’t mean the officers involved violated policy. The department received 219 complaints of excessive force in 2012, but only three resulted in sustained allegations.

Former Clark County Sheriff Bill Young said he understood why the public was rankled over not knowing how officers are disciplined in cases of misconduct. Although the department reports the number of internal affairs complaints filed and the number of complaints sustained, public information on discipline imposed — if any — is protected by law.

Young says he believes Metro does a good job of managing risk and thinks the majority of the public agrees.

The force has its hands full, he said, especially when factoring in the number of tourists who flock to the Strip looking to go wild and break a few rules.

"It really aggravates me to see politicians in particular make hay," Young said, noting that Metro’s constant critics need to "get their facts straight before they start shooting off their mouth."

Lawsuits can draw attention to unknown misconduct, but they aren’t necessarily a barometer of whether the department has a broader problem.

Many people file lawsuits because they feel they were mistreated, and sometimes that’s true. But often the complaint stems from a lack of understanding about police procedure, said Carol Archbold, a criminal justice professor at North Dakota State University.

“There are cases where the claims are frivolous,” she said. “We live in a really litigious society.”

Young said Metro’s status as a well-funded public agency “makes it a very attractive target for these plaintiffs’ attorneys because they are suing a big pot of money.”

Taking on Metro in court is not without challenges.

When Potter first sued Metro in the early 1980s, people told him it would kill his career.

His black client had been booked with the “N-word” as his middle name and the judge told the young defense attorney he should sue on his behalf. Potter won a settlement and became known as an attorney willing to go up against Metro.

Suing Metro requires persistence and stamina, he said, noting he’s worked with attorneys who felt they’d been retaliated against after challenging the department.

Barnard’s attorney Paola Armeni said Metro was a scary bureaucracy to battle. She’s worked without pay on Barnard’s case for the past three years and is still waiting for Metro to pay court-ordered attorney fees.

“Every time there is a glimmer of hope ... it’s not,” Armeni said. “It’s continual. There’s no end.”

• • •

Drawing lessons from the stream of lawsuits filed against a police department is an inexact science.

The number of civil rights cases filed and settled by departments of a similar size deviates wildly depending on a number of factors, including internal policies and training, community norms and quirks of the local judicial system.

“Lawsuits are not a perfect source of information on officer misconduct, but I don’t think there’s any perfect source of information. There’s a lot that goes into it,” said UCLA law professor Joanna Schwartz.

Between 2006 and 2011, Baltimore’s police department paid out nearly three times more to settle civil rights lawsuits than Metro despite having roughly the same number of officers, according to a study by Schwartz due to be published next year.

Of the top 20 largest police departments surveyed in Schwartz’s study, Las Vegas paid out the fifth least amount to settle civil rights lawsuits over that time frame.

Dallas, which has only a slightly larger police force than Las Vegas, was among the lowest of the large departments. Dallas settled five civil rights cases for a combined payout of $637,500, according to the study.

Analyzing the number and types of lawsuits for trends — officers involved, types of incidents and how they compare to use-of-force complaints — departments can begin to identify policies and training procedures that may need to be changed, Schwartz said.

The biggest trend for Metro in recent years has been an increase in the frequency of officer-involved shootings, which has prompted a review from the U.S. Department of Justice. So far, Metro has met 56 of the Justice Department's 80 recommendations. But critics still worry the changes won’t go far enough in addressing an underlying culture at Metro they say enables use of excessive force by officers.

“There’s no getting around the fact that there are far too many police shootings in Las Vegas,” Lichtenstein said. “We’ve tried to deal with those issues on a training and policy level by working with Metro. It’s moving very slowly. ... There’s an entrenched culture at Metro that doesn’t change.”

Several of the highest settlements paid out by Metro in recent years dealt with officer-involved shootings. More shooting-related lawsuits are still pending in federal court. Besides the settlement Fiscal Affairs will consider Monday with Gibson’s widow, a separate federal lawsuit filed by Gibson’s family remains unresolved.

Elected officials responsible for overseeing Metro’s budget through the Fiscal Affairs Committee say they’re concerned about the uptick in lawsuits filed against the department and the taxpayer dollars being used to settle them.

But they say they haven’t seen any trends or data to suggest major changes in Metro’s policies, training or handling of lawsuits was needed.

“You're always going to have lawsuits in policing; it's a high-risk profession. You try to mitigate that as much as you can, which I think Metro has done,” said Las Vegas Councilman Stavros Anthony, a former Metro captain who now sits on Fiscal Affairs. “You would like to defend yourself in every single lawsuit, but the attorneys' fees are just astronomical on both sides. Often it’s less expensive to settle it."

Anthony and Clark County Commissioner Larry Brown, also a Fiscal Affairs Committee member, say they’re comfortable with the information provided to them by Metro regarding lawsuits.

“From the smaller amounts to the larger amounts, one of the issues we discuss is the risk in litigation. That is something you rely on your legal advisers for. If a lawsuit has a chance to settle but if we go to court and lose 10 times as much, how do you balance that?” Brown said. “In most cases, we know about it on the front end. We’re briefed on the litigation and what we’re anticipating.”

Commission chairman Steve Sisolak, who has publicly sparred with the sheriff over the department’s finances, said he thought Metro could be more transparent about the total costs of litigation, especially outside attorneys' fees, which ran $3 million in 2012.

“It’s the same old thing with the attorneys' fees. You get to the eleventh hour and you settle these cases,” he said. "Maybe that’s how you come to the determination of what’s fair to settle, but you spend millions in attorneys' fees that could otherwise be saved or used for the settlement.”

The broader cost of lawsuits over police misconduct is less trust between Metro and the community, Lichtenstein said.

“As any police officer will tell you,” Lichtenstein said, “the most important tool an officer has is cooperation with the community. That’s something that’s at risk.”

Barnard said his 2001 encounter shook his entire family’s view on law enforcement. A former corrections officer, he said he never imagined police officers could behave like they did on that December evening.

“It’s something that you are never ever going to forget, and you just have to move forward and put it in the back of your head,” Barnard said. “You have to know that most of the police officers are good guys and they have courage and integrity and honor.”

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