Yet Another Reason to Oppose Police Violence: It's Costing Us Millions of Dollars
Money for victims, perpetrators, and alternatives all comes from the same place
By Austin Sanders, Fri., April 23, 2021
From 2011 to 2019, the city of Austin paid $8 million in settlements to victims of police violence, and another $800,000 to private law firms brought in to defend the city and Austin Police Department officers in civil lawsuits stemming from APD's use of force. With at least eight more suits pending, the costs are likely to increase.
Data provided to the Chronicle by the city shows that 61 lawsuits were filed against the city or an individual officer accused of using excessive force. State law requires that the city provide legal defense to any officers sued for actions taken while on duty. In most cases, in-house attorneys from the city's Law Department take on these cases, but if the department is short-staffed or needs outside expertise, the city will contract with outside counsel.
The 61 cases include 33 that were dismissed, 20 that were settled, and six where the city or the officer prevailed in court. Only two resulted in judgments at trial for the plaintiffs. These results show the long odds against holding officers for misconduct even in civil court – where the burden of proof upon plaintiffs is lower than in criminal cases, and where those harmed by official misconduct are often told to pursue justice when their cases don't result in criminal charges or convictions against officers.
Many of the names of these plaintiffs would not be recognizable to most readers, but some of the highest-profile APD excessive force cases of the last decade are among the total. In 2016, Billie Mercer settled a wrongful death suit with the city for $1.85 million, three years after former APD Detective Charles Kleinert fatally shot Mercer's son, Larry Jackson Jr., in the back of the neck. Kleinert was indicted for manslaughter, but the criminal charges were dismissed after the officer successfully claimed he was acting as a federal agent at the time and thus enjoyed immunity from prosecution.
The city also paid more than $423,000 in attorney's fees in the case to two different firms: Richards Rodriguez & Skeith, representing the city, and the late Robert Icenhauer-Ramirez, representing Kleinert. Icenhauer-Ramirez, who passed away last month, spent 40 years practicing primarily as a criminal defense attorney but also took on a number of civil cases defending police officers; he also was hired by the city to represent Geoffrey Freeman, the former APD officer who fatally shot David Joseph in 2016, receiving just under $75,000 in fees.
Ketty Sully, Joseph's mother, in 2017 reached a $3.25 million settlement with the city in that case, the largest of the 20 settlements paid out during this time frame. The 17-year-old Joseph, thought to be experiencing a mental health crisis at the time, was naked and unarmed when he was shot by Freeman, who did not face criminal charges. He was fired by then-Chief Art Acevedo shortly after the killing but appealed his "indefinite suspension" and eventually reached his own settlement with the city in December 2016, by which time Acevedo had already departed for Houston (he's now the police chief in Miami).
In addition to the killings of Jackson and Joseph, a settlement of nearly $900,000 was approved by City Council in 2018 for the family of Richard Munroe, shot by APD officers in 2015 while holding a BB gun in what police sources at the time described as a possible case of "suicide by cop." The three officers involved were cleared of all charges and were not sued individually.
None of the remaining 17 settlements within this time frame involved fatalities; the largest among them, for $425,000, was with Breaion King, the elementary school teacher whose violent arrest in 2015 after a traffic stop (followed by a racist lecture about Black people's "violent tendencies" on her way to jail) sparked national outrage a year later when video from the officers' dash and body cams became public, via the Austin American-Statesman's Tony Plohetski, once King filed suit. Until then, neither Acevedo nor then-District Attorney Rosemary Lehmberg knew of the incident, which had been quietly and questionably handled by the officers' chain of command; former Officer Bryan Richter, shown slamming King to the ground in the video, was later "no-billed" by the grand jury.
Most settlements in cases stemming from violent arrests were for substantially smaller sums, such as the $75,000 received by Quentin Perkins after he was shot with a Taser at 12th and Red River in 2018. The two officers involved in that case, Donald Petraitis and Robert Pfaff, were indicted by Lehmberg's successor Margaret Moore but acquitted at trial. They were then fired by Acevedo's successor Brian Manley for lying in their original reports (as was clearly shown by the incident video), but were reinstated and awarded back pay after prevailing in civil service arbitration.
Those proceedings added to the city's total price tag, but these cases become even more expensive in the rare event that they result in a jury verdict for the plaintiffs. Both of the two such cases in this time frame, involving excessive force during arrests where the plaintiffs were ultimately freed without charges, resulted in $1 million judgments against the city, one of which was reduced in later proceedings and eventually settled for $150,000.
The pace of legal activities to defend APD officers and reach any settlements with those alleging excessive force is expected to ramp up substantially. The city is facing civil litigation in two fatal police shootings, as well as at least six cases stemming from APD's use of force against Black Lives Matter protesters in the summer of 2020. Since the beginning of the current city budget year in October 2020, Council has approved eight contracts with outside counsel to handle these cases and authorized up to $1.56 million in spending on those legal fees, although depending on how the cases proceed to trial, dismissal, or settlement, the actual bill to the city may be significantly less than that.
The Money's in the Bank
All these payments come from the city's Liability Reserve Fund, which collects "premium transfers" (the city does not carry private liability insurance) from and disburses payments to departments backed by the tax-supported General Fund. (Enterprise funds that have their own sources of income, such as Austin Energy, have their own liability reserves.) As the largest General Fund department, APD is naturally the largest contributor to and user of the LRF; last fiscal year, the police deposited $2.25 million and withdrew just over $939,000. The second-largest department, Fire, contributed nearly $408,000 and withdrew just under $6,000.
The money paid to victims of police violence, to the police causing that violence, and now to the departments funded as alternatives to those police responses that lead to violence – it all comes from the same place, the General Fund. That's common for cities Austin's size, which seek to avoid the added costs of carrying third-party liability coverage from a for-profit insurer. A city spokesperson told the Chronicle that the current arrangement offers "greater autonomy in determining how to handle cases in the best interests of the City, as opposed to taking direction from an insurance company."
It's understood that those "best interests" may also be more advantageous to the plaintiffs than a hard-fought battle with an insurance company that has no obligation to protect the city of Austin's reputation or foster greater community goodwill and dialogue. Carrying private liability coverage would reduce the hit on the General Fund in those cases where a big payout is inevitable; George Floyd's family settled with the city of Minneapolis for $27 million (as well as commitments to police reform), and the suit filed by Brenda Ramos over her son Mike's killing by Austin Police Officer Christopher Taylor in April 2020 (for which Taylor is now facing murder charges) seeks as-yet unspecified damages. But if 2020 and 2021 prove to be outliers, or if ongoing "reimagining public safety" efforts do contribute to a decline in allegations of excessive force, the cost of insurance premiums may surpass the cost of direct payouts.
When the city of Austin or one of its police officers is sued by a resident of the city, whose interests should defense attorneys in those cases serve? It depends on who you ask. First, a response from the city's Law Department: "Our lawyers represent the city as a whole in all litigation," a spokesperson said in a statement. "The city is made up of residents and taxpayers, the elected officials, city management, and all employees and volunteers."
Working for Both Sides
The city's attorneys believe that their role in use-of-force cases serves the interests of both plaintiffs and defendants – a position that is untenable in America's adversarial legal system. They do have a fiduciary responsibility to try to limit the city's financial liability, but they are also supposed to be responsive to the values of Austin's people, who elect the council that (currently) hires and oversees the city manager who (currently) hires and oversees the city attorney who runs the Law Department. Austin voters are being asked in the upcoming May 1 election to decide whether a "strong mayor" should instead be the city's chief executive; prior, and perhaps future, proposals to amend the city charter would give Council direct authority over the city attorney, alongside the city clerk, auditor, and municipal court.
The motivations that go into defending, settling, or winning civil lawsuits are complex and difficult to chart, as for the most part these are black-box proceedings negotiated in private between plaintiffs and the city, whose council deliberates on them in executive session. Interviews the Chronicle conducted with various participants in these conversations, whose names are being withheld since they are not authorized to discuss the city's legal matters, shed some light on the proceedings.
It's clear that ideology plays a role in how individual actors – city lawyers, the city attorney, the chief of police, the city manager, and Council – view the city's obligations. While city lawyers are discouraged from projecting their own politics on cases, individual perspectives unavoidably influence decision-making. For example, as one former city lawyer told us, if an attorney assigned to defend a use-of-force case is motivated to win the case – or, at least, not settle expediently – they would have autonomy to work the case as they see fit. That could mean filing motion after motion trying to get the case dismissed while avoiding meetings with APD leadership to work on settlement terms.
But an attorney motivated by a desire to see justice for a victim of police violence might work in the other direction – advising the city attorney (and then the city manager and Council) that a drawn-out legal battle is unwarranted over a valid claim. The legal work then becomes focused on fairness and negotiating a settlement agreement that works for the plaintiff and the city and its residents, whose taxes will fund it.
Outside counsel brought in to defend the city or APD officers has the added incentive of earning more money by prolonging the cases, whatever their outcome. That's one reason why a lawyer such as Icenhauer-Ramirez, with a long career and who is well-regarded on both sides of the courtroom, could often be a go-to in this delicate role – someone whose work would be acceptable to both plaintiffs and defendants.
For Council Member Greg Casar, who has to vote to approve the settlements or decisions to contest these cases, the adversarial nature of the system puts him in a difficult position. Like all elected officials, he is expected to be a responsible steward of the city's budget. But he is also proudly progressive, winning reelection twice as a champion of justice reform and a defender of those victimized by police.
"I think of council members as serving in the interest of justice," Casar told us. "That means pursuing policy change, apologizing to victims, and paying people restitution if the city's done something wrong." As for negotiating settlements, Casar said, "We have to commit ourselves to the really hard work of working with families and attorneys to get to settlements when that is the right thing to do. We have to get past the 'us vs. them' litigation strategy," even if that means amounts that punch holes in the city's budget. If that happens, the CM told us, it's the city's responsibility to figure out the funding issues, "but we can't short-change families that were truly wronged."
More Than Just Money
Settlements paid to victims are not the only costs of police violence to the city, let alone to the community, as is highlighted by a report titled "The Costs of Police Violence: Measuring Misconduct," issued in February by Measure, an Austin-based nonprofit that examines data related to social justice issues. The group acknowledges from the outset that some harms are incalculable in fiscal terms. "We can tally deaths, track settlements paid, and examine city budgets, but we cannot put a value on community suffering or distrust," the report reads. "There is no dollar amount you can assign for the pain of losing a child. The ripple effects of police misconduct run deep, and by focusing on the measurable, we will only scratch the surface of its real impact."
In an interview, Paulette Blanc, Measure's research director and co-author of the report, told us that excessive-force cases – and the general lack of transparency around them – impact how communities disproportionately impacted by police violence feel about law and order in general. "When the social contract is broken because the people who uphold the law break the law and then aren't held accountable, it creates distrust in communities," Blanc told us. "That makes people wonder why they should even follow the law if cops don't."
With those caveats, the Measure report does quantify costs associated with police misconduct that go beyond civil litigation. Officers who violate APD's general orders, as determined by an Internal Affairs investigation, are punished by suspension. The report examines five years of suspensions (from December 2014 to March 2020) for misconduct related to violence, substance abuse, and sexual behavior, and uses the average salary for each officer's rank to conclude that the city paid $882,131 in salaries for 3,775 days of leave. Measure also found that of the 95 violations from 2015 through the end of 2019, 10 were committed by officers who had been previously suspended for misconduct; in 2019 alone, four of 19 officers were repeat offenders.
Blanc says these costs need to be, and hopefully will be, better understood in the future. "Members of the public deserve full transparency in these matters, because this is part of how our tax dollars are spent," he told us. "When it comes to policy, what matters gets attention from policymakers. The effects of police violence haven't been on the forefront for the city until recent years. Now that it is an important issue for the city, we need more transparency around the costs of police violence."
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