Police keep a perimeter near the White House as protesters gather in Washington, DC in the morning hours of May 31, 2020 to protest the police brutality.
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In a summer of unrest over police violence, one might think that suing the police is a way for the families of those killed to seek justice. It may be, but the level of justice available – in urban and community settlements – may depend on the local politics in which the murder took place.
This emerges from an NPR analysis of civil litigation in 2015, the year after protests in Ferguson, Missouri, over the police murder of Michael Brown. We chose 2015 because it was the immediate aftermath of the Ferguson protests and because it has been long enough since most cases would have been resolved.
That year we found 93 police cases in which an officer killed a person who was not armed with a gun or other weapon. Of these cases, we found that 29 of them – almost a third – ended up in a settlement for the families of those killed. In order to find and categorize the cases, we examined reports in other media as well as documents from courts and local governments.
The largest settlements resulting from these deaths were in counties that voted for Hillary Clinton in the 2016 presidential election.
There have been 61 fatal incidents in the counties that voted for Clinton. Twenty of these cases were resolved for a total of more than $ 50 million, or approximately $ 2.6 million per case. Most of the settlements were for over $ 1 million.
There have been 31 deaths in the counties that voted for Donald Trump. Eight of these cases were settled for a total of $ 14 million, or about $ 1.8 million per case. Three settlements exceeded $ 1 million.
(One death that resulted in a large settlement occurred in a city spanning three counties where the presidential election was mixed. It was excluded from our record, as was one settlement for which the amount was not disclosed has been.)
Now, six years after Ferguson, civil rights lawyers say new links may be developing between the courts and public opinion about the police. The protests against Black Lives Matter are polarized and exacerbate political divisions over law enforcement on both sides.
The latest poll by Ipsos / NPR on September 3 confirms this: three in four Democrats support recent protests after the shooting of Jacob Blake by Kenosha, Wisconsin, while less than one in ten Republicans do.
Lawyers say there can be wide disparities across the country when such divisions extend to litigation over police behavior – in terms of municipalities' propensity to settle cases and the willingness of local jurors to hold police officers accountable .
Dave O & # 39; Brien, an Iowa lawyer who only represents civil rights claimants, spoke to NPR shortly after losing a trial in a police brutality case in Sioux City, a Conservative city in a Conservative state.
It was a case that he expected to win. And while he says he doesn't want to read too much in a single case, he blames the loss on a community backlash against the Black Lives Matter movement.
"I've had a lot of success with real blue conservatives (jurors) – someone who believes in individual freedom and doesn't allow the government to take advantage of an individual," says O & # 39; Brien. "Those people I love on my juries. But I read this case that because of the Black Lives Matter, the backlash pushed them into a police stance that they didn't take before."
O'Brien says he used to convince conservative gun owners to value the civil rights for which he fought in cases of police brutality, just as they value their right to bear guns. But something has changed.
A protester faces police during demonstrations against the shooting of Jacob Blake on August 25, 2020 in Kenosha, Wisconsin.
Kamil Krzaczynski / AFP via Getty Images
Speaking to potential jurors during the jury selection process, he said judges "just felt that Black Lives Matter was a little too much overreaction and anti-police. We had to get over it and we didn't do it successfully."
On the other hand, veteran civil rights attorney James DeSimone sees a different effect in the more liberal Los Angeles County.
"I believe the jury pools here in California have become more open to holding police accountable in appropriate cases," he says. "The more people become aware that not all police officers can be believed that, in the event of excessive violence, police officers should be held liable, which makes our work easier."
Clark Neily, former trial attorney and vice president of criminal justice at the Cato Institute, a libertarian think tank, says NPR's findings and proposals at the current political moment are not surprising. "This is likely to reflect, to some extent, the plaintiff's attorneys and the defense attorney's predictions of what is likely to happen when the case goes to trial and a verdict," he says.
The Cato Institute has called for increased legal accountability on the part of the police, particularly by ending the doctrine of qualified immunity that has isolated them from liability.
"We have a persistently racially diverse criminal justice system," says Neily. "
However, some lawyers wonder whether the legal environment this year and next will be more like the Ferguson protests of 2014 in some cities and the opposite in others.
"The cases where I had the greatest success and settlement values were the Ferguson riots," said Joshua Roberts, lawyer in Missouri.
"The cities down here were, 'We want to get this out of the news, we want to solve this.' And they were a lot less awkward to deal with."
Currently, however, the climate in southwest Missouri is "very pro-criminal," he says.
This summer of protests, William O. Wagstaff III, a New York civil rights attorney, says he routinely brings together groups of people from diverse demographic backgrounds to respond to the facts of specific cases. He says he doesn't want to make "outdated assumptions" about it.
"I've noticed a shift in perspective from people I previously viewed as liberal and sympathetic to issues of racial inequality in policing," says Wagstaff, "because they believe the call for accountability has gone too far."
In order for families of those killed by the police to file lawsuits, they must first believe that they can fight the town hall and find a lawyer who will agree. And when local politics comes through, families may be deterred from filing a lawsuit in the first place. In fact, about half of the deaths reviewed by NPR did not result in a lawsuit.
To Sherene Mayner, the city of Paris, Texas, where her son Garrett McKinney was killed by police in 2015, appeared to be policing and wary of outsiders – as some there called their son after his death.
Mayner, who works as a realtor in Austin, says her son suffered from schizophrenia and physically assaulted the officer after Tased. She says the small-town climate in Paris prevented her from asking questions about Garrett's death.
She fights tears as she recounts that months later the Texas Department of Public Safety and Security awarded the Highway Patrol officer who shot Garrett to death a purple heart in connection with the shooting. “He just shot my son and no one called me to say, 'I'm sorry,'” she says, recalling seeing a photo of Officer Timothy Keele on the his award is on display.
"That always bothered me," she says, "he got that award, and he smiles and grins when he gets that award, and I say," Oh, you have to kid me. "" "
So far, Mayner has not filed a lawsuit in the shooting.
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