To the average American, the aftermath of police shootings might seem morbidly routine. After angry calls for a criminal conviction of the cop responsible, a local district attorney usually decides not to indict. That's when protests heat up, if they haven't already. Then, the Department of Justice is called upon to conduct a federal civil rights probe, which sometimes happens, but similarly tends to produce no criminal charges. Finally, the family, or the estate of the victim, files a wrongful death lawsuit against the city or police department behind the incident.
This happened most recently in the Tamir Rice case in Cleveland, Ohio. The 12-year-old boy was shot and killed on a playground in November 2014 by an officer who mistook his toy gun for a real one. Over a year later, a grand jury decided not to indict the officer or his partner, sparking protests in Cleveland and nationwide. The Rice family brought a civil lawsuit, though, and, on Monday, they reached a settlement to the tune of $6 million. (An investigation by the feds, who recently imposed a consent decree to rein in excesses by Cleveland cops, is still pending.)
In police shootings, a settlement is like a begrudging bookend to a criminal justice process that almost always lets the police officer off scot-free. The family attorneys will generally point out that the cash award isn't justice, but at least it accounts for the stark reality that someone is gone forever—and now their loved ones have to figure out how to cope.
Once a settlement is negotiated, though, a new process begins where friends and family of the victim figure out how, exactly, to divvy up the award. To find out more about how this all works, I gave Jonathan Safran, a Milwaukee-based lawyer, a call.
Safran has plenty of experience dealing with police misconduct: In 2012, he settled the case of Frank Jude, Jr., a biracial man who was brutally beaten by off-duty cops outside of a party. All three officers were eventually sentenced to prison in what was then the largest criminal case against the Milwaukee Police Department in its history. On Wednesday, he filed a civil rights lawsuit (and may eventually file a wrongful death claim) on behalf of Dontre Hamilton, a mentally-ill black man who was shot and killed by a white officer in a Milwaukee park two years ago. That officer was fired, but not charged. (Last November, the Justice Department also declined to bring civil rights charges.)
Here's what he had to say about how police brutality payouts work in America.
VICE: OK, so to get us started, why do police shooting settlements tend to be so massive compared to other brutality cases?
Jonathan Safran: Death cases sometimes have a higher rise, and sometimes have a lesser value, than someone who suffers a very serious injury and is maybe rendered a quadriplegic, and is now going to have lifetime expenses. I'm not sure if the death cases are more—the Frank Jude case that I had and settled with the city of Milwaukee, he was severely beaten and we settled for $2 million. So that was a significant amount. But there were claims of punitive damages and egregious kinds of contact that the city certainly had some more exposure about.
I would think that what's different in these cases, too—and it depends on the jurisdiction—is that even though the claim is usually against the officer involved, there are other claims out there. Like what we call the Monell cases (named for a Supreme Court case of the same name), which are cases where you go against the governmental agency or municipality for their own conduct, for having policies and procedures that led to the unconstitutional violation. Most municipalities also have a state indemnification statute, which says that if an officer is acting in the scope of their employment, under cover of law, state statute often requires that governmental agency or city to indemnify and have to pay for that judgment that would go against the officer individually.
So that's why the city often pays, even though the claim is often against an individual.
How much of that money does the family actually see at the end of the day? If it's $6 million, like the Rice family settled for, what do they end up with?
There are a couple of issues. One issue is, first of all, whether or not this is taxpayer dollars, or whether this is money from an insurance company doing a settlement. Many municipalities, Milwaukee being an example, are self-insured: they have no insurance coverage, and this is all taxpayer money. So there are additional hoops to jump through, where it'd has to get approved by the city council, the mayor, and the city attorney. And then, often, if the city government doesn't have money, they have to float a bond to get that money. We just resolved cases with the city a few months ago involving a bunch of body cavity strip-search cases. A large group of individuals we settled for $5 million, so we actually had to borrow to get that money.
A short answer to your question would be: out of a $6 million settlement, whether the legal fees are 33.3 percent or 40 percent, and if reimbursement of costs are paid. Sometimes there are other claims that have to be paid out of a settlement, too. Say you have a client who suffered injuries, and there is a claim that was paid by health insurance and the state for medical expenses. They have a right to recovery, and they would often have to take from the settlement.
Otherwise, the rest of the money will technically go to the client.
What about taxes?
That depends on exactly what the claim is, and what the recovery is. Many times, our claims will involve an assortment of different types of things, that include lost wages or lost income. Most of the time it's reimbursement for medical expenses, and compensatory damages to cover their pain and suffering and other kinds of losses. And many times, those are not taxable, depending on if the settlement is broken down, or even more probable if there's a verdict, where a jury is awarding specific amounts for specific categories, some of that money may or may not be taxable, but often it is not.
Wait, so what is taxable in a police shooting settlement?
Again, it's all going to depend on what those damages are—some of it may be a claim for, say, future loss of incomes. Some of that may be taxable. It also depends sometimes on how it's structured: often, in the settlement, it isn't broken down, so it doesn't become a taxable event. If it is broken down, and certain parts are for certain things, usually pain and suffering awards are not taxable. But if there's something related to lost income, or something like that, that part may be taxable.
Is there anything else that's unique about police shooting settlements, since they basically involve calculating the cost of human life?
In a death case like this, there is going to be a claim on behalf of the individual's estate, as well as potentially a claim for the heirs and their own separate claims. There can be a loss to society and companionship claim, if someone dies and leaves a child or a spouse. So sometimes that is one component. Otherwise, the estate has a separate claim, for what are called hedonic damages: loss of life damages, any conscious pain and suffering—so if an individual was shot, and there was some period of time when they were conscious, there's often a claim for conscious pain and suffering they may have, as well as potentially punitive damages.
So the only difference is that monies are often going to have pass through an estate, and it's going to depend on who the heirs are to that estate.
We have an example with the Dontre Hamilton case. After the fact of Dontre's death, we always believed that there was the potential of a child that he had—paternity had not been established, but has since been established. So now, his child, who's a minor now, will be the one who will recover all the damages related to Dontre Hamilton's death. Since he didn't have a spouse, and he left this minor child, all the monies will go through to the estate, and pass on to that child.
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