George Nilson had had enough.
Enough of the same kinds of police misconduct allegations year after year, enough fix-it talk without follow-up within his Baltimore City Law Department, and perhaps enough calls from the media and City Council members about the steady stream of suits and how much they cost the city.
According to a report he released in May, a low-end estimate of payouts between July 2004 and March 2011 was $16.8 million. More than $1 million in judgments or settlements have piled up in the months since.
So this spring, the no-nonsense city solicitor drew up a one-page protocol that he hopes will result in a smaller taxpayer bill and better-behaved cops.
“We need to figure out a way, in a more disciplined, regular fashion, to learn lessons from … this litigation,” Nilson said shortly after the new policy went into effect in early June.
Analyzing police misconduct litigation to prevent repeat incidents, instead of simply settling and moving on, is part of a national trend, Joanna C. Schwartz, a professor at UCLA School of Law, wrote in a New York Times op-ed piece last month. She faulted the level of introspection undertaken by the New York Police Department, which has paid out more than $500 million in the last five years.
Baltimore’s new protocol, Schwartz said in a recent interview, is “not bad — certainly better than most departments do — so on that level alone, it’s a positive thing.”
Nilson’s plan has two primary components: legal counseling for officers involved in the settled claims, and incorporation of costly incidents into the police department’s training programs.
According to the policy, certain police settlements won’t go forward until some corrective action has been taken or at least scheduled.
Nilson has “a specific hope to reduce the money spent in settlements and judgments,” he said, “but the behavior is more important.”
Members of the City Council, who questioned Police Commissioner Frederick H. Bealefeld III about related issues at a May budget hearing, seemed pleased, if not bowled over, by the change.
Belinda Conaway, chair of the City Council’s Budget and Appropriations Committee, said it represents a “good step,” one that will “keep some people out of trouble.” And City Council President Bernard C. “Jack” Young, who suggested at the May hearing that the actions of a small group of bad officers had prevented the city from funding more youth recreation centers, is “encouraged” by the policy, his spokesman said.
But there are also concerns about the short document with the long title: Baltimore City Law Department Process for Relating Police Department and Similar Decisions with Police Training and Instruction.
Robert F. Cherry Jr., president of the Fraternal Order of Police, was not aware the policy was in effect and said FOP attorney Herbert R. Weiner has scheduled a meeting for this week with the law department. Cherry wishes the city agency would have reached out to the police officers’ union instead of the other way around.
“We’re also concerned that whatever the city does move forward with, that it doesn’t violate our collective bargaining agreement and our Law Enforcement Officers Bill of Rights,” he said.
Nilson said the idea has been in the works for a while, and since Weiner’s firm, Schlachman, Belsky & Weiner P.A., is one of the private firms that defends police officers from suit on a contract basis, he thought the FOP would know of it.
In any event, the union has nothing to fear from the new protocol, Nilson said.
“We are very aware of the collective bargaining provisions and we are being very careful not to tread on them,” he said, adding, “We’re not talking about punishment here, we’re talking about teaching.”
Nilson said members of the law department’s settlement committee — he and half a dozen deputies — have long suggested “an exit counseling session” for defendant officers, or using the incident in future trainings.
“We’d all say, ‘Yes, yes, yes,’ but there wasn’t any formal policy or requirement with assigned responsibility, timetables, reports back,” Nilson said.
Instead, the task would be left to outside counsel, he said. Handling the counseling in-house will lead to “more effectiveness and more accountability,” according to Nilson.
Nilson said he developed the new policy in conjunction with other members of his settlement committee, including Mark Grimes, who is stationed at police headquarters, and spoke to Commissioner Bealefeld about it. Bealefeld has promoted officer training on several occasions, including the May budget hearing.
As of late June, Bealefeld’s spokesman was not aware the policy had gone into effect.
“If legal counsel determines it’s in the best interest of the city and the best interest of the department, then we would have no objection,” Anthony Guglielmi, the spokesman, said.
Schwartz, the UCLA law professor, was skeptical about the apparent lack of communication with the police department, specifically the chief. She said it doesn’t much matter who physically drafts the policy but rather “whether there’s buy-in and if people follow it.”
Discretion by design
Schwartz, who has also recently written a pair of law review articles on the subject, had other suggestions for improvement.
“I would look more broadly than they are,” she said.
Nilson’s protocol only applies to a subset of police cases, specifically those “based on an allegedly [tortious] or unconstitutional conduct of police officers, that is not a mere auto tort, and that … was or may have been problematic, sufficiently serious, and amenable to training or instruction or counseling so as to minimize the chances of the conduct being repeated by the defendant(s) or others in the Department.”
Even determining whether a case qualifies for the policy involves “a lot of discretion,” Schwartz said.
“My sense from looking at the plan that your police department has is they don’t have to file any plan at all unless they decide there’s something they can do, and I think there’s value in filing a report about every suit,” Schwartz said. “And then you have to justify in the document itself why there isn’t a broader policy implication arising out of that particular incident.”
Nilson said the policy casts “a pretty wide net” but sets out eligibility standards for a reason.
“There are cases that settle not because we think the officer’s conduct was bad but for all the other reasons that you settle cases,” he said, referring to the economics of avoiding the expense of trial. “That’s why it’s a case-by-case thing.”
According to the policy, if a case qualifies, the law department’s settlement committee will not authorize a settlement offer until at least one of three things happens: the defendant officer is taken off the street, the officer has been scheduled for a minimum half-hour counseling session with a city lawyer, or the conduct at issue has been slated for inclusion, as a hypothetical, into regular police training.
The counseling must happen within 30 days of the committee’s approval of the settlement. The incorporation into training would take longer — 30 days for “incorporation,” and “implementation” following “in due course.”
“We’re supplying supplemental textbook material to the trainers,” Nilson said.
Schwartz worries that the categories of corrective action “all concern the individual officer.”
“It takes as an assumption … the problem is always a problem related to the officer. But there are other kinds of problems that could result in litigation that could result in different policies,” she said. “Not just different kinds of training but the department writing its policies or managing its officers.”
Nilson said a racial discrimination case brought by officers against the department in 2004 and settled for $2.5 million two years ago might be an example of what Schwartz is talking about.
“You learn differently from those kinds of allegations and those kinds of cases,” he said. “They’re just different.
“And she’s right: this policy does not cover every single kind of [lawsuit] that could be brought against the police department.”
The policy also calls for quarterly reports to the settlement committee from the Office of Legal Affairs, the division Grimes leads at police headquarters, on “whether and for what amount and when the matter actually settled, what counseling occurred and when, and whether any training modifications were made and when.”
Already in action
In addition to cases approved after June 9, the protocol applies to settlements approved by the committee on that date but not yet ratified by the city’s Board of Estimates, consisting of Nilson, Council President Young, Mayor Stephanie Rawlings-Blake, Comptroller Joan M. Pratt and Department of Public Works Director Alfred E. Foxx.
Young and the mayor also were briefed on the changes, Nilson said.
The policy already has been applied to a few cases, he said. One will entail a counseling session and a tweak in training, while the other only implicates future training.
Nilson would not name the cases. But there was a $375,000 settlement reached in a fatal police shooting case on June 2 that has not yet been approved by the Board of Estimates.
And there were two more police-related settlements last week — one for $49,500 and another for $25,000.