Police misconduct is costing Washington taxpayers millions. Is George Floyd's murder one of the reasons? [The Seattle Times]

Apr. 24—Giovonn Joseph-McDade, Tommy Le and Brent Heath likely never met each other in life.

But in death, they represent a growing trend among those who died at the hands of police under questionable circumstances in Washington state.

Lawsuits filed over their violent deaths resulted in more than a dozen multimillion-dollar settlements in 2021 as cities and counties increasingly decide to forgo civil trials and offer grieving families a kind of financial accountability. While settling police misconduct cases before they reach a courtroom is hardly a new tactic for risk managers, the steadily rising numbers and amounts are.

Last year saw Washington cities and counties settle 15 misconduct and wrongful death cases for a total of at least $34.3 million, a 146% increase over what was paid out in 2020 — and a 363.5% increase over the 2019 amount, according to data compiled by The Seattle Times through public disclosure, court dockets and news accounts.

In fact, Washington cities and counties have paid more than $100 million over the past five years to resolve lawsuits and claims arising from allegations of police misconduct.

The data shows that the number and size of settlements have grown precipitously over that time period — from $1.15 million in 2017 to the more than $34 million in 2021, a 2,990% increase. Nearly two-thirds of the total $100 million has been paid since the May 2020 murder of George Floyd by Minneapolis officers renewed outrage over unchecked police brutality and bolstered the Black Lives Matter movement.

"No amount of money will replace a life," said Sonia Joseph, the mother of 20-year-old Giovonn Joseph-McDade, who last year settled a lawsuit over her son's 2017 shooting death with the city of Kent for $4.4 million. "It was insulting, but for my family it was never about the money. It was about raising awareness. And I wanted to raise the bar for the families who come after us."

"The climate is changing," said Joseph, who now sits on the state's Criminal Justice Training Commission. "I think people in the community are aware of what is happening ... There's no longer that veil that police are perfect."

The trend shows no indication of slacking off. Legal settlements in police abuse claims and lawsuits reached in the first three months of 2022 total nearly $19 million, just about half the amount paid in all of last year, the data shows.

The settlements reviewed by The Times involve 56 high-profile police incidents from across the state, including allegations of excessive force — such as fatal and nonfatal shootings — wrongful arrests and officer negligence.

Uncertain verdicts

"Two distinct reasons" are driving the trend, said professor John Rappaport, who teaches criminal law at the University of Chicago and has conducted research into how insurance carriers can influence police behavior.

"The first is the now-unpredictable nature of what a jury might do if a case goes to trial," he said. Growing public concerns over police violence means "there is a greater uncertainty when it comes to verdicts. Not only might you lose, but you need to worry about how much it will cost you if you do."

The other related reason, Rappaport said, is the advent of video, either from police body- and dash-cameras, or from bystanders armed with the now-ubiquitous smartphones recording police interactions. Some of the footage — like the agonizing video of Floyd's murder, or the police shooting of 12-year-old Tamir Rice — have shocked the public conscience and shaken confidence in law enforcement.

"The decisions to settle these lawsuits, or take them to trial, is based on uncertainty" of the outcome, Rappaport said. "Body-camera and cellphone video is helping to raise that uncertainty and the effect has been to drive up the settlement rate."

Risk managers, the Washington Cities Insurance Authority and officials with the city of Seattle and King County declined to weigh in on Rappaport's theories. None was willing to be interviewed for this story.

More settlements, more money

What the data demonstrates is evident in Washington — more settlements for more money — is being seen elsewhere around the country as well, Rappaport said.

Another factor is at work in pushing settlements in some cases: criminal prosecutions of some officers. While still a rarity, publicity surrounding those incidents plays into the increasing public skepticism of law enforcement, officials say.

Video played a key role in the recent decisions by prosecutors to charge police officers in the death of Manny Ellis in Tacoma and Jesse Sarey in Auburn. The Ellis family received a $4 million settlement in March from the Pierce County Sheriff's Department, whose deputies were on the scene when Ellis died, with claims against the involved Tacoma officers still pending.

Sarey's family settled with the city of Auburn for $4 million last year, according to information provided by the Washington Cities Insurance Authority, an insurance pool that provides coverage to roughly 90 small and midsized police agencies statewide.

Auburn in 2020 paid $1.25 million to settle a lawsuit filed by the family of Isaiah Obet, another man killed by the same police officer who shot Sarey. That payment came shortly after that officer, Jeff Nelson, was charged with murder and assault for Sarey's death.

Those criminal charges were the first filed against any police officer in Washington since 2009, when an Everett police officer was charged for a fatal shooting outside a bar. That officer, Troy Meade, was acquitted. Before that, it had been nearly 40 years since an officer was charged in a homicide.

Nelson's charges were followed by criminal charges against three Tacoma officers in Ellis' death.

Those recent criminal charges were made possible by changes in the law governing the police use of deadly force that came with the passage of I-940 in 2019, a citizen initiative championed by families who lost loved ones to police violence. The initiative passed with strong support underscoring widespread concerns about the use of force by officers. Before I-940 passed, Washington's uniquely restrictive statute — which required a finding of "malice" — made it virtually impossible to charge an officer with murder.

Unexpected, unprecedented verdict

The passage of I-940 followed another red-flag incident in 2017 that rattled risk managers and police agencies in Washington: an unprecedented and unexpected multimillion-dollar federal jury verdict in a civil rights lawsuit filed by the family of a young father killed by police in Pierce County. The jury awarded the family of Leonard Thomas $15.1 million after a Lakewood-led SWAT team surrounded his house and shot the unarmed Thomas as he held his 4-year-son in his arms.

The verdict included $6.5 million in punitive damages against three Lakewood officers, including Mike Zaro, who is currently the city's police chief, finding they acted maliciously, recklessly and with callous disregard in storming Thomas' house, shooting the family dog, and giving a police sniper the green light to shoot the30-year-old Black man.Lakewood officers insisted Thomas was holding his son hostage, but the unanimous jury didn't buy it.

Even without video, the jury found against the city on every cause of action after hearing testimony that one of the SWAT officers, Mike Wiley, exclaimed that the sniper round that tore through Thomas' abdomen was a "million-dollar frickin' shot."

Lakewood negotiated a $13.1 million settlement with the family in 2018, after the trial judge rejected their argument that the jury had been influenced by race.

Annalesa Thomas, Leonard's mother, said at the time she didn't realize the significance of the verdict, which remains unprecedented in Western Washington in a police civil rights and wrongful death case.

"We were so naive," said Thomas, who also sits on the Criminal Justice Training Commission. Her husband, Fred — who the jury found was wrongfully arrested that night trying to save his son — was appointed by Gov. Jay Inslee to the advisory board overseeing formation of a new Office of Independent Investigations for police shootings.

"That lawsuit was the only way for us to see any justice," she said. The Pierce County Prosecutor's Office had found the shooting was justified and declined to file criminal charges against any of the officers involved.

"The only thing is, you have to live with the stigma that people actually think you did it for the money," she said.

The verdict was particularly stunning since Lakewood and its attorneys followed what has historically been the defense pattern in handling police-abuse lawsuits.

Up until then, cities and counties routinely rolled the dice and took the cases to trial, where plaintiffs — whose dead loved ones often had troubled backgrounds or criminal histories — faced the daunting task of challenging the word of a sworn officer of the law. By putting the uniformed officer on the witness stand to recite a well-rehearsed version of events, police were all but assured of a favorable verdict.

When there were settlements in these earlier cases, they were largely for smaller amounts, often considered "nuisance payments" doled out simply to make the litigation go away.

No longer. The shock of the Thomas verdict and incidents such as the deaths of Ellis and Sarey locally and, nationally, cases such as the 2020 murder of Floyd and others, has risk managers reevaluating their strategies.

"Municipal risk managers certainly seem more risk averse and seem to be paying relatively higher settlement amounts after George Floyd's murder," said Seattle civil rights attorney Gabe Galanda, who has negotiated several high-profile settlements, including a $2 million payout last month (March 2022) to the family of Stonechild Chiefstick, who was killed by a Poulsbo officer in 2019.

But Galanda said the system is still stacked against the plaintiffs in police misconduct cases.

"Involved officers, guild lawyers, purported investigators, municipal attorneys and other state actors still conspire to conceal and falsify evidence and obfuscate the truth from the public, especially when there's not nine minutes and 30 seconds of clear and convincing videotaped evidence of the killing," he said, referring to the Floyd case.

"These dynamics persist notwithstanding nascent police reforms and continue to impact whether cases settle or get tried before a fact-finder," he said.

"There has been a change," added Jack Connelly, one of the attorneys who tried the Leonard Thomas case in U.S. District Court. "For the first time, we have video evidence of what really happened.

"However, it's still too easy for police to issue a statement and make up what occurred and have that be accepted by prosecutors," Connelly said.

Tim Ford, a Seattle civil rights attorney who, like Connelly, has been trying civil rights cases for close to three decades, agreed that "there is more skepticism of police" and that, as a result, risk managers and civil defense lawyers are more amenable to settlements.

"It is certainly true here," he said.

Risk managers 'take a pass'

No municipal risk managers, either locally or nationally, would discuss the issue.

The New York City-based Insurance Information Institute, which provides training and information to insurance providers around the country, said it "doesn't have enough data on this [issue]," and suggested talking to Marsh McLennan, also headquartered in New York, which advertises itself as a "global leader in insurance broking and risk management."

"I appreciate you thinking of Marsh for your story," said the company's U.S. media director Sally Roberts. "Our public entity team, however, would like to take a pass on this one."

The city of Seattle's Department of Finance and Administrative Services said it doesn't track police settlement data and deferred to the city attorney's office, which defends such cases. The office declined to be interviewed on the topic, and referred back to the Department of Finance. A city attorney spokesman said the office's attorneys "assess the risks and opportunities in prevailing in each individual case, including the cost to litigate and how a jury might perceive an action."

The King County Prosecutor's Office, whose civil division defends civil rights cases against sheriff's deputies and jail corrections officers, declined to discuss its risk management procedures.

Likewise, the director of the Washington Cities Insurance Authority, an insurance pool covering roughly 90 state police agencies, declined to discuss police risk management or remark on the data.

The WCIA and other municipal pools are collectives that use premiums paid by the individual cities to either purchase insurance or actually provide the insurance themselves. Having a number of cities and counties pay spreads out the costs of risk management and can help in purchasing broader coverage. Like most insurance purchases, they pay a deductible or absorb the costs when something occurs that isn't covered by the policy.

Cities and counties purchase insurance as protection against negligence or liability claims by their employees or outside entities, much as a homeowner buys insurance to protect against accidents and disasters. In some cases, larger government agencies are self-insured, but still purchase secondary policies to cover unexpectedly large payouts or unanticipated liability.

Risk managers within those agencies — sometimes the city or county attorney, sometimes an outside individual — review claims made against the government or its employees to weigh possible liability. In some cases, they'll make an offer to settle, or negotiate with the claimant to find a compromise both can live with. Sometimes, they'll take a claim to trial.

The WCIA's 2020 annual report notes that the U.S. has experienced "a social justice movement that placed an emphasis on police reform and accountability.

"The accountability sought by the movement resulted in law enforcement claim exposures significantly increasing, placing pressure on our ability to renew insurance coverage in addition to rates we were required to pay to obtain that coverage," the report said.

Big verdicts, such as the Leonard Thomas case and "high profile settlements," have resulted in changes in the way the WCIA reviews and values such claims, according to the report.

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