Police payouts a moving target in Mpls., other cities facing suits

May 28--A 24-year-old black man is fatally shot by Minneapolis police. Just over a year later, a Minneapolis police officer shoots and kills a 40-year-old white woman.

The Minneapolis City Council settled a federal excessive-force lawsuit with the family of the woman, Justine Ruszczyk Damond, for $20 million. When lawyers for the man, Jamar Clark, proposed last week that the city settle its case for the same amount, the city didn’t offer a counterproposal.

While the cases share similarities, a deeper look at them and other recent brutality settlements reveal the calculations that go into determining how much gets paid out by a municipality.

“Once you drill down, there are differences in key facts,” said Mitchell Hamline School of Law professor Allen Blair.

Along with the actions of the victims and the officers, the reputations of the lawyers and the political climate also funnel through the legal calculus to determine the settlement size.

Damond and Clark’s families each filed federal wrongful death cases, as did the mother of Philando Castile, the 32-year-old black man who was shot behind the wheel of his car by a St. Anthony police officer after a traffic stop in July 2016.

Castile’s girlfriend broadcast the shooting’s aftermath live on Facebook, when she desperately pleaded with him to live after being shot by police officer Jeronimo Yanez.

Damond, an Australian native who had moved to southwest Minneapolis to live with her fiancé, was shot by Minneapolis police officer Mohamed Noor in the alley behind her house after she called to report a possible sexual assault in progress.

Damond’s family got the biggest settlement in city history earlier this month: $20 million.

Her lawyer, Bob Bennett, called the settlement a bargain for the city; he had initially asked for $50 million. Bennett had also represented Castile and settled that case for $3 million.

In the Clark case, Hennepin County Attorney Mike Freeman declined to file charges against the officers, despite an 18-day protest encampment and calls for “Justice for Jamar.”

The case appeared headed to trial after mediation hit an impasse last week, though sources have told the Star Tribune that the City Council rejected a five-figure proposal. Council Member Phillipe Cunningham publicly stated that the council considered the amount too low.

Pulling heartstrings

Bennett, a brass-knuckled negotiator of large settlements in brutality cases, said federal damages are based on two things: the suffering endured from the moment of injury until death, and the cost to the victim for losing the rest of his or her life -- both intangibles about lifestyle along with actuarial calculations about life expectancy and earning potential.

Damond, who statistically would have been expected to live another 48 years, was looking forward to marrying her partner and attending veterinary school, Bennett said.

A video produced by his staff helped make the case for a large settlement by showing a beloved and attractive woman who would prove an immensely sympathetic victim to a jury should the case go to trial.

“We had every heartstring pulled. That’s my job,” Bennett said.

While Damond, a yoga instructor, wasn’t expected to make a lot of money, Bennett said $10 million of the settlement represented the general value of the rest of her life -- her connections with friends and family, plans to get married and have a child.

The other $10 million, according to Bennett, represented the pain she suffered in the 10 minutes from the time Noor shot Damond until she died in the alley behind her house, gasping for air and bleeding from a stomach wound.

As to why those minutes were worth $10 million, Bennett said of the police body camera video, “Go look at it.” It shows Damond on the ground, gasping and moaning, her right arm reflexively jerking across her torso to cover her wound.

The jury in Noor’s criminal case saw the video and convicted him of third-degree murder and manslaughter. While not determinative of damages, the jury’s willingness to send Noor to prison was a warning to city leaders that a civil jury might well find Damond to be a victim worthy of a massive award.

Moreover, Minneapolis is self-insured and so has no cap on payouts. Bennett said the Damond case was a perfect convergence of factors adding up to a large payout. As Blair said, the case posed “a lot of risk to the city.”

Determining factors

For a defendant municipality, settlement cases are about risk management: Trying to calculate how they would fare on their worst day and the probability of that happening.

In addition to the risk of losing, defendants also have to factor in the millions of dollars it could take to fight the case through the appeals process. While a settlement of $20 million might seem surprisingly large, it reflects a defendant betting that a jury could award a lot more.

Bennett also represented Castile’s family and got the maximum -- $3 million -- allowed by St. Anthony’s city insurance. The cap meant that there was not much room to negotiate.

Had Castile been shot in a bigger city, Bennett said, the settlement would have been higher.

But other factors would have kept the settlement lower than Damond’s. Yanez was acquitted of criminal wrongdoing by a jury; Noor was found guilty. Castile had a gun, raising Yanez’s fear level even though Castile said right away that he was armed; Damond had no weapon.

The reputations of the lawyers and the judge, as well as the cultural climate, also factor into the calculation. In recent years, the public’s growing awareness of police violence helps plaintiffs, Blair said.

In Clark’s case, he didn’t have a gun. Nor does his family have Bennett fighting for them; one of their lawyers is mostly retired and the other handles mostly drunken driving and personal injury cases.

Police were called not by Clark, but by someone who claimed Clark was trying to break into an ambulance where a woman he was accused of beating was being treated. When Clark resisted, police officer Mark Ringgenberg took him to the ground, then told his partner, Dustin Schwarze, to shoot, saying Clark was grabbing his gun. Clark was shot in the head and died the next day.

Clark’s lawyers have agreed to dismiss Schwarze from the case, saying his use of force was not unreasonable; Clark’s DNA was all over the grip of Ringgenberg’s gun. The only claim left is excessive force for Ringgenberg’s takedown of Clark.

Not just compensation

Unlike federal court, harm in state court is measured by monetary value -- the loss of wages, medical costs and then the loss of relationships.

One of the best recent examples is the $20 million jury verdict that attorney Chris Messerly won in 2017 for the family of a woman who died of sepsis shortly after giving birth. It’s the largest medical malpractice verdict in state history.

In that case, Nicole Bermingham, 30, went to the hospital in 2013 with a fever and nausea shortly after giving birth to her first child. The nurse practitioner sent her home, ignoring lab results indicating sepsis. Bermingham returned to the hospital 12 hours later and died.

Unlike federal court, Minnesota state courts calculate potential earnings, so someone with a good salary would merit a higher award than a child or a retiree.

Punitive damages are rare because the plaintiff must prove the defendant acted with “deliberate disregard” for the patient, Messerly said. Even so, the prospect of a jury imposing them can make for a strong bargaining position; Messerly said that was the case with the victims he represented in the Interstate 35 bridge collapse in 2007.

Ultimately, settlements are also about prevention.

“It’s not just about compensation,” Messerly said. “It’s about hoping the wrongdoers stand up and pay attention.”

Rochelle Olson • 612-673-1747 Twitter: @rochelleolson

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