Correction (10/1/2020): This story was updated to reflect the settlement of a lawsuit against East Pittsburgh stemming from the death of Antwon Rose II.
Update (10/21/2020): The City of Pittsburgh has settled, for $392,000, a lawsuit in which police officers are accused of engaging in a high-speed chase that resulted in injuries to a 12-year-old, according to a filing this week in federal court.
According to a motion to approve the settlement filed by attorney Alec Wright, representing the plaintiff, the settlement also comes after a dramatic drop in both the number and duration of high-speed pursuits by Pittsburgh police.
The 2015 chase started when Pittsburgh police perceived that the driver was lost or scared, and then concluded “falsely” that he ran a stop sign, according to the motion. It ended with a head-on collision in which the sister of the driver of the pursued vehicle was rendered unconscious, with lacerations to her forehead and liver, fractures to her nose and a rib, and “traumatic brain injury,” according to the motion. The girl’s injuries healed, and she hasn’t suffered any long-term medical or economic damage, according to the motion.
The girl’s full name is not provided in the court documents.
Wright writes in the motion that “from 2012 through 2015, the PBP engaged in 729 high-speed pursuits, 393 of which began over minor traffic offenses, and 89 of which ended with vehicle collisions causing property damage and bodily injuries to suspects, police, innocent bystanders, passengers and others …”
He writes that from 2016 through 2019, the frequency of chases by Pittsburgh police dropped to less than half of the previous level, and the average pursuit time decreased from 29.45 minutes in 2012-2015, to just 2.18 minutes after that.
Robert Aldred finished his shift as a waiter one June night in 2017, went out with friends, returned home and thought little of the broken screen door on his Mount Washington rental house. Aldred went to his third-floor bedroom and fell asleep.
In the wee hours, multiple Pittsburgh police officers with a dog entered the room, according to the lawsuit Aldred filed last year. He said he was in his bed. The city, in a legal filing, alleged he was “lying on the floor.”
Aldred’s lawsuit said the police “unleashed the canine officer on Mr. Aldred and allowed and encouraged the canine to attack” him, and that the dog “sunk his teeth all the way down into Mr. Aldred’s right forearm” and bit his right thigh.
The city’s lawyers, in a motion, wrote that the officers were responding to an anonymous report of a burglary in progress, found Aldred’s screen door open, and described the resulting encounter more succinctly: “Officers used K9 force to detain plaintiff.”
Aldred, now 35, was not charged with any crime in the incident.
Aldred’s lawsuit was one of 40 federal cases filed since 2009 alleging excessive force by police in Allegheny County and reviewed by PublicSource. Some are ongoing, while others resolved with judgments or settlements ranging from $5,400 to $5.5 million.
PublicSource reviewed the cases because federal court is typically the referee of last resort in disputes between citizens and police. Officials sometimes portray the court as a backstop against other systems’ shortcomings. For instance, Pittsburgh Mayor Bill Peduto, questioned by PublicSource in August about the record of the city’s Office of Municipal Investigations, said: “Certainly, if OMI were making decisions that were going against what people believed, people would have the ability to take us to court and to be able to settle in court.”
Scholars of law enforcement, though, view federal court as an uneven playing field on which results have little to do with the severity of a constitutional violation or the injuries caused.
Courts are “not very good regulatory mechanisms,” said Seth Stoughton, an associate professor at the University of South Carolina School of Law, focused on policing, who was an officer in Tallahassee, Florida. “Only a relatively narrow subset of cases are actually subject to litigation. Among those, an even smaller subset are ultimately successful in litigation.”
Even when there are settlements or verdicts, Stoughton said they result in payments “without really incentivizing or pushing a policing agency or police officer to change what they’re doing.”
Aldred’s case ended in a $16,000 settlement, shared with his lawyer, Todd J. Hollis. “It was either settle or we were going to fight the police department,” said Aldred.
“The odds were extremely poor, because I was by myself” at the time of the incident, with no civilian witnesses, he said. “The mediator told me, ‘At this point, it’s you against the police, and I don’t need to tell you who is going to win.’”
Varied cases, wildly different outcomes
PublicSource, using federal court dockets and other public documents, found 29 lawsuits alleging excessive force by police departments in Allegheny County, filed since 2009, that resulted in judgments or settlements.
The settlements and judgments for nearly 12 years of cases totaled nearly $12.2 million, of which $5.5 million was paid to Leon D. Ford Jr. He was paralyzed in a much-publicized 2012 incident that started as a traffic stop. Pittsburgh police mistook him for another man and the confrontation ended in a struggle in a moving car and point-blank shots by an officer into Ford’s torso.
The other payouts run as low as $5,400 paid to Timothy M. Arnold, whose lawsuit said he was bit by a loose Pittsburgh police dog. The second-highest is a $2 million settlement entered into by East Pittsburgh in the death of Antwon Rose II. The third-highest is $1 million paid to the survivors of Jennifer Piccini, shocked with a Taser by Glassport police as she held a gun to her own head, which then fired, per her family’s court complaint.
- The City of Pittsburgh’s total payout on completed cases was $7,060,006. Because the city is self-insured, that cost was borne directly by taxpayers.
- The self-insured state government paid $650,000 in a case involving a trooper and a city officer.
- Ten suburban governments participated in settlements totaling $4,381,500, much of which was likely covered by insurers, which recoup payouts via premiums.
- The U.S. Marshal Service paid $57,500 in a joint settlement with Harrison Township.
Complaints are allegations, and settlement agreements often note that the municipality continues to deny any liability.
PublicSource identified 11 more cases moving through federal court, alleging everything from an officer-fueled bar fight to overzealous protest responses to fatal shootings. The 40 total cases involve 14 of the county’s 109 municipal police departments, plus the Port Authority police.
PublicSource’s analysis doesn’t include cases that did not make it to federal court, where the most significant accusations against police are adjudicated. Nor does it include cases that were dismissed or ended in defense verdicts.
Layers of protection
The City of Pittsburgh provides lawyers for officers who are sued for their on-duty actions, and it pays the vast majority of judgments and settlements of cases against officers, including those listed above. The city also puts $100,000 a year into a Legal Defense Fund, managed by the Fraternal Order of Police, under the arbitration decision setting the terms of the city’s contract with its officers.
The city’s police union leader notes that lawsuits and other complaints of excessive force represent a small fraction of the forceful encounters between police and civilians. In the city alone, there were, for instance, 549 of what police call “subject resistance incidents” in 2019, according to the Pittsburgh Bureau of Police annual report.
When they are sued, officers, through their lawyers, often argue that they followed a “continuum of control,” described by attorney Bryan Campbell, who represented Fraternal Order of Police Lodge 1 in Pittsburgh from 1971 to 2017.
“You, as an individual, determine what the officer is going to do by your actions,” he told PublicSource. “If you take certain actions, the officer is permitted to go a step above that” in terms of use of force. “When you punch [an officer] in the head, that raises the level” and can justify significant force by the officer, he said.
“On occasion, officers will use excessive force,” Campbell added. “They have to make split-second decisions as to how much force to use and the level of force they use.”
People who feel their rights have been violated by governments can sue in state or federal courts. Often when a plaintiff sues in state courts, the defendant government transfers the case to the federal court. There, the government can use defenses that stem from the Fourth Amendment, a concept called qualified immunity and limits on municipal liability — plus tap a very different jury pool.
In court, the decisions made by officers — and their employers — are evaluated against several legal yardsticks.
Lawsuits against police often invoke the Fourth Amendment to the Constitution, according to Stoughton. That amendment protects people against “unreasonable searches and seizures,” including arrests. The presence of the word “unreasonable,” he said, “gives officers a tremendous amount of leeway and allows officers to make mistakes and be wrong so long as they’re reasonable.”
Beyond that, officers have another protection in ”qualified immunity,” which was born of a 1982 U.S. Supreme Court decision. That doctrine holds that a government employee is only liable for a constitutional violation if they run afoul of a “clearly established” right and do something which a hypothetical reasonable official would have known to be a violation.
Qualified immunity allows officials to act without constant worry about liability, said Stoughton. As an officer, he said, “I knew that essentially I would be given the benefit of the doubt.”
The doctrine has evolved in a series of court decisions, said Rachel Harmon, a professor at the University of Virginia Law School, and author of the forthcoming book, “The Law of the Police.” “Over the last 10 years, [court decisions have] made it increasingly difficult to overcome qualified immunity,” she said. Now qualified immunity “protects all but plainly incompetent officers or officers who knowingly violate the law,” she said.
“Congress could step in tomorrow and eliminate qualified immunity,” added Harmon, a former federal prosecutor who handled civil rights cases against police.
While officers have qualified immunity, municipalities themselves do not, leaving them open to lawsuits. However, municipalities are not necessarily liable for the actions of employees, Harmon said. A municipality is “only responsible for its own policies,” she said.
The result: If the officer invokes qualified immunity to defend an action, and the municipality shows that the officer’s action did not reflect any policy, the plaintiff may be out of luck.
There’s another factor that can make federal court attractive to governments defending police: the jury pool. Whereas Allegheny County juries are drawn from within a relatively diverse county, juries in federal trials in Pittsburgh are drawn from a 13-county area.
“When I have an African-American client” in a federal case, said civil rights attorney Steve Barth, “I have to counsel them that it’s highly likely they’re going to have a jury that is all white, all rural, who may be sitting in judgment of you in this case.”
Settling up — but for how much?
Federal court encourages parties to resolve cases short of trial through mediation, arbitration or an evaluation by a neutral party, all of which can lead to settlements.
Besides the tilt of federal court, there are other factors that influence settlement negotiations, and potentially settlement amounts, in lawsuits against police, said Stoughton.
- Substantial monetary damages, like medical expenses, stemming from the encounter may drive up a settlement. So can perceived pain, suffering and emotional distress.
- If the plaintiff’s own actions spurred the police response, the settlement value may be less.
- The perceived nature of the plaintiff influences negotiations. “Is it a heavily tattooed gang member who was arrested after a gang-related shootout?” Stoughton asked. Or is it “a child that was minding their business when they were hit by a police car?”
- An attorney who has experience in civil rights cases might get bigger settlement offers.
- Public sentiment as trial approaches can affect talks. “When there’s a lot of public criticism to policing, the way there is right now, agencies might be inclined to settle more favorably to the plaintiff,” he said.
- If the officers’ actions or the municipality’s policies are egregious enough to warrant punitive damages, which can be as much as 10 times the amount of other “compensatory” damages, the settlement value could be higher.
Aldred’s damages included medical bills for infected bite wounds that led to multiple trips to hospitals and what he described as “constant nightmares.”
His attorney brought the case in the Allegheny County Court of Common Pleas, but the city moved it to federal court. There, the city, defending the officers, invoked the qualified immunity defense and argued that the complaint failed to show a “widespread policy or custom” or a failure to train, control or supervise officers, underlying the actions Aldred was alleging.
When the mediator implied that he’d lose, Aldred said, “I was kind of stiff-armed into an extremely bogus settlement.”
The officers named in his complaint remained on the force, according to city roster information obtained by PublicSource this year.
Stoughton said most settlements don’t spur change. “[T]ypically they just write a check and don’t think much more about it.”
Can lawsuits bring reform?
Barth has sued the city, alleging excessive force, three times in a decade. He said the process should be more transparent.
While court hearings are open to the public, and most federal court filings can be viewed by anyone with an account to the Public Access to Court Electronic Records [PACER] system, important parts of the process are hidden. The city and the courts compel plaintiffs’ attorneys to sign confidentiality agreements before the city provides internal documents and submits officials to depositions, according to Barth.
If it were not for those agreements, he said, he could make public the responses of police chiefs and others, under oath, to questions about use-of-force policies and practices. “It would allow everybody to see what people are saying under penalty of perjury,” he said.
Asked whether he could have the City of Pittsburgh Law Department release limited case materials — like depositions of the mayor and police chief — Peduto said: “I don’t know if I can do that because you’re talking about two sides, and unless both sides were to agree, I don’t think you could provide information” from court discovery.
Attorney Timothy P. O’Brien is suing the city for its forceful handling of a June 1 protest. It’s the latest in a string of police use-of-force cases he has litigated since 1982.
He said the cases sometimes vindicate the plaintiff and occasionally bring about the dismissal of an officer. Once in a long while, they spur systemic change, as happened when a class-action lawsuit he helped to file got the attention of the U.S. Department of Justice, which then pushed the city into a 1997 consent decree that forced reforms.
George Floyd’s May 25 death under the knee of a Minneapolis police officer may alter the playing field, O’Brien said. “This is the event that tied it all together for anyone who had any doubts about the extent to which police abuse is a profound problem in our communities, and particularly as it applies to people of color,” he said.
Stoughton, though, said the current tumult over policing may cut both ways.
“In some places, public criticism of policing is going to have a rallying effect on people who may want to support the police.” he said. The federal court, he predicted, “is going to stay a relatively weak lever for having any sort of broad reform effect.”
Rich Lord is PublicSource’s economic development reporter. He can be reached at rich@publicsource.org or on Twitter @richelord.
This story was fact-checked by Matt Maielli.
