POWER: The Real Cost of Settling A § 1983 Excessive Force Claim by Ariana Gibbs

Modern day Americans have become accustomed to daily tales and stained images of history that seek to depict the experience of “being black in America.” The growth of technology has fostered the spread of such information by way of news outlets and social media. These stories have garnered so much coverage and commentary that many Americans have become desensitized to the deep-rooted experience that comes along with having brown skin. Incidents of violence, disenfranchisement, and lack of opportunity are mere fragments of the system of racial inequity in this country.

News outlets are strategic in their coverage of such matters. The relentless news stories on protests and acts of violence occurring in African American communities reinforce, to the American people, the negative stereotype that blacks are inherently violent and disorderly. These stories ultimately distract the public and divert the focus from investigating a particular crime, to shaming victims posthumously. However, if one were to look beyond the veil placed by protest-crazed reporters they would find that there is a larger hand at play in the outcomes of excessive force cases. Generally upon hearing of an incident of police brutality the story usually takes a very specific trajectory. It goes a little something like this. A black citizen is going about their day, doing whatever serves them, when suddenly a police officer approaches them. These encounters happen anywhere and in virtually every space. For example, one can be approached during a traffic stop, while walking down the street (Michael Brown), while standing on the corner engaging in commerce (Eric Garner), while at the playground (Tamir Rice), or simply while being in the wrong place at the wrong time (Freddie Gray). In many of these instances, there was no probable cause to stop the victim in order to conduct an investigation. At some point the encounter escalates, and what began as a Terry[1] stop consequently becomes a street side execution.

Settling a civil lawsuit in cases of excessive force is not an uncommon occurrence. Often, “settling” a lawsuit brought against the respective city is presented to communities as the grand gesture of apology and compensation for the precious life lost at the hands of law enforcement agents. However, settling an excessive force lawsuit ultimately undermines the overall goal of the lawsuit. Although there is something to be said to the idea of being compensated after a tragic event, settling does not force the practice of discriminately attacking black citizens to stop. To the contrary, a settlement buys the silence of a victim’s family and forecloses any opportunity to hold police departments or officers accountable.

Communities of color are plagued by the attitude of indifference exerted by police departments across the country. As American citizens, black individuals are entitled to a color-blind system that enforces the Constitution irrespective to any consideration of race. These blog entries seek to shed light on how settlements in excessive force cases are used as mechanisms to divert grieving families from their ultimate cause. Among the consequences of settling, is the guarantee that the respective police department will not change their patterns or practices. Ultimately, settling is a promise from the city that although they are sorry for “your” loss, law enforcement officials will continue to disregard the Constitution and exert their presumed power in whatever manner they deem fit. If the overall goal is to force adequate training throughout police departments and to upset the systematic indifference shown towards black citizens, it is necessary to evaluate the benefits and consequences of settling § 1983 claims of excessive force.

Specifically, this blog will investigate the $6.4 million settlement awarded in the Freddie Gray case. An evaluation of the circumstances surrounding Gray’s arrest and the subsequent outcome will provide a backdrop for which to consider how settlements in excessive force cases are not always as helpful as they appear.

A. Power Dynamics

Power is an important element in any consideration of police brutality in this country. Police departments and officers are fueled by the idea that, as those charged with enforcing order, their power reigns supreme. This is blatantly apparent in light of the circumstances that led to the murders of Freddie Gray, Tamir Rice, and Eric Garner, to name a few. Legal protection coupled with the deference shown by the court towards police officers has fostered a system of systematic indifference. In addition, legal mechanisms such as, qualified immunity has afforded police officers heightened protection from liability and thus, encourages a “God complex” exhibited by some officers.

In the age of cell phones and video cameras, the excessive exertion of power against American citizens by police officers has become difficult to ignore and has forced many to question the seemingly limitless power that police officers enjoy. For example, the video footage of Gray’s arrest depicts officers callously forcing Gray to the ground after an apparent foot chase. The National Public Radio chronicled the incident on its website stating that, “after being forced to the ground Gray was placed in a restraining technique known as the ‘leg lace’ move.” Kevin Moore, an eyewitness, reported that one officer had his knee on Gray’s neck, while another was bending his legs backwards. Throughout this video, Gray can be heard screaming in pain and pleading for his inhaler. However, at no point did officers avail him. Additionally, although Baltimore’s Police Department policy is to buckle an arrestee into the van’s seat Gray was not properly restrained. To the contrary, Gray was thrown head first into the police van unrestrained and left to die. These facts illustrate the overt manner in which the “assumption of absolute power” operates among police officers. However, the assumption of power is misplaced. The size of the settlement offered in the Gray case strongly suggests that the ultimate bargaining power, at least in the Gray case, rested with the victim’s family.

Upon announcing the size of the settlement, many officers charged back at the Mayor and the city of Baltimore. The police union president, Lt. Gene Ryan, issued a statement to the New York Times stating “it was obscene to settle with the family before the officers went to trial.”[2] Although Lt. Ryan expressed this sentiment as an attack on the city for precluding the “assumed” vindication of the six officers involved, his statement speaks to the idea that settlements are essentially a smoke screen used to distract any effort at receiving justice. Justice, in this context, would demand not only that the police officers involved assume responsibility for Gray’s death and be subject to criminal liability, but also that the police department end the pattern or practice of discriminately targeting and exerting force against black citizens.

The timing of the settlement in Freddie Gray’s case is also important to note. Baltimore Mayor Stephanie Rawlings-Blake announced on September 8, 2015 that a $6.4 million settlement had been reached with the city of Baltimore. This settlement was reached, just days before a judge was to consider whether to move the trials of the six officers facing charges in Gray’s death. Equally striking, the settlement was reached even before Gray’s family filed a civil suit. In an attempt to quiet any speculation that the settlement was an admission of guilt, Mayor Blake offered the following statement: “The settlement should not be interpreted as a judgment on the guilt or innocence of the officers facing trial, but had been negotiated to avoid “costly and protracted litigation that would only make it more difficult for [the] city to heal.”[3]

This statement is particularly peculiar. Although it was purposed with dispelling any rumors to the contrary, Mayor Blake’s statement in fact spoke to the concern that the settlement served as a means of silencing the victim’s family and avoiding any admission of guilt. As Yvonne Wenger reported in the Baltimore Sun “by entering into a settlement, the city would avoid a lawsuit that could have played out in public court filings and testimony.”[4] Additionally, the settlement allows the city to avoid acknowledging any wrongdoing by the police. To this point, entering into a large settlement with the Gray family served the city’s interest in avoiding a very public trial that had the potential to bring extensive attention to the discriminatory practices observed by the Maryland Police Department. Further, the large settlement awarded in Gray’s case coupled with the swiftness in which it was reached, reflects the likelihood that Gray’s family had a substantial claim against the city of Baltimore.

Making a settlement offer of that size has several implications. Legal specialists reported that the $6.4 million offered was in line with the settlements for recent racially charged police misconduct cases. However, the Baltimore Sun reported that, “the Gray settlement exceeds the combined total of more than 120 other lawsuits brought against Baltimore police for alleged brutality and misconduct since 2011.”[5]

B. Justice v. Closure

The power that operates to empower police officers is also evident in an evaluation of why the family of a victim ultimately chooses to settle with a city. There are many layers to understanding the conundrum that dictates a decision regarding whether to take a settlement offer. Not only is a family dealing with the tragic loss of a loved one, but they are also charged with reconciling the violent manner in which they died.

In light of such events, it is may be easy for a bystander, or avid protestor, to remain committed to the charge of seeking justice. In part, this blog argues that the pattern or practice of discriminately targeting black citizens will not change unless the demand for justice remains a priority. However, as this blog is purposed with exploring how power operates to the detriment of black lives it is equally important to consider how power encourages the act of settling. In the face of senseless tragedy a victim’s family is forced to navigate the important social justice issues implicated while also balancing the need for closure. For this reason, a large settlement award can be very persuasive to a family suffering a loss. This is especially true when the alternative is bringing a lengthy and costly lawsuit.

It is not uncommon for a family to show deference to a city when a settlement is offered. To some degree, there is a presumption that the “city government is right” that families buy into. This sentiment can be attributed to the history of dealing with oppression in the city of Baltimore. Further, it presents a question of whether the victims feel that they have equal standing when opposing the city government. Historically, the relationship between local government and the black community has not been one built on trust. This speaks to the idea that many members of the black community, particularly those who seek to bring suit against the city, do not feel confident in their ability to bring a successful claim against a law enforcement official. So in considering the potential for success, it is likely that a family considers the difficulty in bringing a suit against the city versus accepting a monetary award.

The social class of victim’s also plays a substantial roll in the success of reaching a settlement deal. Often, victims of excessive force cases come from lower middle class communities. This is significant because it also emphasizes what may motivate the family of a victim to accept a settlement in lieu of pursuing a civil lawsuit. Bringing a civil lawsuit can result in a costly legal proceeding and can subject a family to extensive mental and physical pain. A family seeking normalcy after suffering a painful loss is searching for any form of relief that will alleviate the wrong executed at the hands of a police officer. To this point, a monetary award is undoubtedly more attractive to a grieving family because it in essence creates a false sense of closure. It is likely that the city of Baltimore was motivated by these factors when it affirmed the settlement amount in Gray’s case. In this case, the manner of which the settlement was reached in Gray’s case reflects the manipulative power of settlements. Moreover, it also represents awareness by the local government of the potential liability faced if the Gray family proceeded with filing a civil suit in lieu of the settlement.

C. Aftermath

Although a settlement might provide some relief to the victim’s family, the consequences of settling should not be overlooked. The settlement reached in the Gray case, though large, precludes any party involved from speaking publicly about the case. In addition, Gray’s family is prevented from bringing a civil lawsuit against the officers or the police department as a whole. This means that no challenge to the pattern or practice that led to Gray’s murder is subject to reform. Although settlements attempt to soothe the burden placed on a grieving family, it does not serve any interest in justice. Justice not only demands that police departments and officers acknowledge any wrongdoing, but it also requires that departments put an end to policies that encourage officers to act in disregard to the bounds of the Constitution.

[1] Terry v. Ohio, 392 U.S. 1 (1968).

[2] Sheryl Gay Stolberg, Baltimore Announces $ 6.4 Million Settlement in the Death of Freddie Gray, The New York Times (2015), http://www.nytimes.com/2015/09/09/us/freddie-gray-baltimore-police-death.html?_r=0

[3] Id.

[4] Yvonne Wenger and Mark Puente, Baltimore to Pay Freddie Gray’s Family $ 6.4 Million to Settle Civil Claims, The Baltimore Sun (2015), http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-boe-20150908-story.html

[5] Id.

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