with Lt. Dan Marcou
Facing civil litigation with a winning mind
Officers face the fight with a mindset to win every confrontation — it’s refreshing when the City attorney “follows suit”
In a recent article, Charles Remsberg told of a city attorney who could have made a made a million dollar lawsuit “go away,” by paying the person who had been arrested a $35,000 settlement.
The city attorney made a courageous decision, after deciding that the force was justifiable, to let “the matter be decided on its merits.” The word courageous fits, because all too often jurisdictions choose to “pay to make it go away.”
Any officer involved in one of these matters can tell you that after the suspect is paid off, the matter does not simply go away. Officers involved in a physical altercation that they could not avoid look at these frivolous lawsuits as an extension of the fight. They look to their administrations to back them up when the fight is carried from the street to the court room. The case in Modesto was newsworthy because too often convenience wins out over conscience.
Cowardice in the Face of Civil Litigation
Can you imagine calling for backup, and then being told by the arriving officer that he or she might be injured by engaging in the struggle to assist his fellow officer? Picture the back-up officer negotiating with the suspect and arranging to let the suspect go without charges, while giving the suspect authorization to kick the arresting officer one more time. After that one last kick is accomplished, the back-up officer then pays the suspect $35,000 of the tax payer’s money to walk away.
All would agree that this would be an example of an outrageous act of cowardice. This is however, exactly what happens, when municipalities and counties “pay to make it go away.”
Continuation of the Struggle
Attorneys representing cities and counties that settle lawsuits where officers have been in struggles, literally for their life, need those attorneys to realize that the lawsuits are a continuation of their desperate struggle. Paying a settlement to a suspect in a justifiable use of force case is just as wrong as it would be for the officer to use excessive force. The officers will view the actions of those attorneys and administrators as an example of outrageous cowardice and they will be right.
A street confrontation must be won. The court litigation, when the force is justified, needs to be viewed as an extension of the struggle.
If the force used is defensible then it is incumbent upon the community, police administrators and the attorneys representing them to support the officers, who engaged in that righteous struggle, because it was their struggle also.
Sir Robert Peel (the father of modern policing) says, “The police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”
Cities and counties in these defensible lawsuits must stop the unwritten policy that says let’s just “pay to make them go away.” A large sum payment in a defensible case to attorneys is very much like blood in the water is to sharks. It will not make them go away.
The approach of the attorney and the administrators in the City of Modesto California was laudable, courageous and the right thing to do. “The Modesto Model,” needs to become standard operating procedure across the country in cases of justifiable use of force by police officers.
Ask any officer and they will tell you it is easier to be effective and decisive, when you have a reliable back-up, standing behind you.