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On GTTF indemnity, is Baltimore choosing fiscal policy over public policy?

In this October 2016 photo released by the Baltimore police, officers, Det. Evodio Hendrix, Det. Marcus Taylor, Sgt. Wayne Jenkins, Det. Jemell Rayam, Det. Maurice Ward, from left, are seen in Baltimore. Federal prosecutors and defense attorneys are set to make their closing arguments Wednesday, Feb. 7, 2018, in the trial of two Baltimore detectives, Marcus Taylor and Daniel Hersl, fighting racketeering and robbery charges. The case involves one of the worst U.S. police corruption scandals in recent memory. (Baltimore Police Department/The Baltimore Sun via AP)

In this October 2016 photo released by the Baltimore police, officers, Det. Evodio Hendrix, Det. Marcus Taylor, Sgt. Wayne Jenkins, Det. Jemell Rayam, Det. Maurice Ward, from left, are seen in Baltimore. (Baltimore Police Department/The Baltimore Sun via AP)

Potential civil lawsuits against the Baltimore Police Department’s corrupt and disbanded Gun Trace Task Force are piling up, and the city is prepared to spend years litigating whether it should have to pay for any judgments against the imprisoned officers.

But in a city struggling to heal relations between police and citizens, some attorneys say the attempt to save taxpayers from footing the bill for years of illegal conduct by uniformed officers sends a bad message to victims and possibly set a dangerous precedent.

The city’s agreement with the police union requires indemnification of officers acting within the scope of their employment, but City Solicitor Andre M. Davis does not believe the eight officers convicted of federal racketeering charges qualify and announced a policy of non-indemnification in civil lawsuits.

In an interview last month, Davis called the circumstances surrounding the GTTF unprecedented both locally and possibly nationally.

“We’ve never seen a situation like what we’re facing now where essentially you have a criminal conspiracy joined by multiple officers over a significant period of time,” Davis said.

Davis’ position is backed by the city’s police union, but it sends a bad message to victims, according to Mandy L. Miliman, who represents a plaintiff suing four GTTF members.

“When you are the ones who placed these police in this position of power and gave them the means to commit this abuse… I think that that does transmit an offensive message to people who were victimized at the hands of these officers who were wearing uniforms and carrying Baltimore Police Department badges and weapons,” she said.

Miliman, of D’Alesandro & Miliman P.A. in Baltimore, said she knows the city isn’t being malicious but merely trying to avoid massive payouts. Practically speaking, however, the officers have received sentences ranging from seven-to-25 years in federal prison, making it unlikely every plaintiff with a judgment will be able to collect from them in the near future if ever.

“There’s really going to be no way to collect a judgment without indemnity by the city so you’re leaving these plaintiffs who were victims of serious abuse of power by police, you’re leaving them without any means to recover,” Miliman said.

Natalie Finegar, a former Baltimore public defender, said compensating the victims of misconduct is a moral issue for Baltimore.

“We’re talking about a city that wants to heal the police-civilian divide. It may be time to set aside your fancy legal arguments and come down to common sense,” she said. “The city doesn’t have clean hands. These officers were rewarded for going out and getting handguns and there weren’t a lot of questions about how they got them.”

David Jaros, a criminal law professor at University of Baltimore School of Law, agreed, despite acknowledging the city should be fiscally responsible with taxpayers’ money.

“The public may have an interest not just in making the injured parties feel better but in a government that pays the penalty when it fails to effectively regulate its own agents and police force,” he said.

Declaratory judgment

A handful of lawsuits have already been filed in state and federal court by GTTF victims seeking damages for assault, wrongful arrest and constitutional violations. Davis filed a complaint for declaratory judgment in Baltimore City Circuit Court last month asking a judge to find the city is not responsible for indemnification in civil lawsuits being filed for actions underlying the officers’ federal convictions.

Davis has acknowledged the indemnification issue will require an appellate ruling and litigation will likely be protracted.

Attorneys for some of the plaintiffs called the declaratory judgment action premature given there are not yet any factual findings or judgments against the officers requiring indemnification.

“The issue with the individual officers is very factually specific and in my opinion, they’re putting the cart before the horse because it’s going to be very difficult for a judge to make a blanket ruling that there can be no indemnification of the officers’ tortious conduct as a matter of law,” said Steven D. Silverman, one of the plaintiffs’ lawyers.

Silverman’s firm represents two men whose car was pursued by at least one GTTF officer and involved in a fatal crash after which drugs were planted that led to their arrests and convictions.

Former Sgt. Wayne Jenkins admitted to the incident in his plea agreement and Silverman said he is weighing whether to intervene in the city’s declaratory judgment action.

“At the end of the day, sometimes the facts are so egregious that justice becomes inevitable no matter what legal impediments the other side may try to raise,” said Silverman, of Silverman, Thompson, Slutkin and White LLC in Baltimore.

Paul H. Zukerberg represents a plaintiff who initially sued pro se in 2016 before the officers were ever federally indicted. Throughout his criminal proceedings, Ivan Potts was adamant that the police had planted a gun on him. The city filed a counterclaim for declaratory judgment on indemnification in his federal case, which Zukerberg called “entirely misplaced both factually and legally.”

“You can’t get a ruling on something until you’ve found out whether there is a judgment against the person and what is the basis of the judgment,” said Zukerberg, of Zuckerberg & Halperin PLLC in Washington.

Miliman opposed a request for declaratory judgment in her client’s case last month and a Baltimore judge denied the motion, noting that the issue was premature.

Fiscal impact

Approximately 60 claims have been submitted to the city, a required step before filing suit, and Jaros said the city solicitor could be staking out a position on indemnity with the belief that enough successful lawsuits could bankrupt Baltimore.

“If you’re Andre Davis and at one level you’re thinking, ‘Well, my client is the city and therefore my goal is to make every legal argument that saves the city money,’” Jaros said. “I would say the question is more complex than that. The city is ultimately a more effective institution when it recognizes it’s responsible for what its agents do whether or not it’s within the scope of their employment.”

Federal civil rights claims are not capped, unlike state law claims that are governed by the Maryland Local Government Tort Claims Act, which allows for a maximum recovery of $200,000 for negligence. Plaintiffs can recover more on state law claims if they show actual malice.

Successful federal plaintiffs can also recover attorneys’ fees, according to Silverman, which just adds to the total due.

“When it comes to police misconduct lawsuits, the city is just basically a debtor that inevitably has to pay and every debtor simply wants to push off the debt for as long as possible and it just piles on,” he said.

Zukerberg said if the department and the city aren’t responsible for the GTTF, no one is.

“The only reason they’re doing it is because they’re gotten so out of control, so many people have been wrongly convicted, they can’t afford it,” he said. “That is the motivating force for them to raise the whole indemnity issue.”

Matter of precedent

Jaros said the law places liability on parties in part to incentivize them to avoid repeating the harm. If Baltimore is not liable for the actions of officers acting under the authority of the city in the GTTF cases, he said it would not provide a strong fiscal incentive for police oversight.

“I think it’s important to pull back and see what are the larger implications of saying the city is not responsible,” he said. “Liability rules have reverberations in how the city deals with the police department and the police union that are really important.”

Domenic R. Iamele, whose firm represents plaintiff suing two GTTF officers in state court, said liability on the city also gives it a reason to reform the department.

“Part of the effect of the judgments should be that the police force recognizes the fact that there are these errant police officers and they should want to, within the police force, either discipline them, rehabilitate them as errant officers, or dismiss them,” said Iamele, of Iamele & Iamele LLP in Baltimore.

Gene Ryan, president of the Fraternal Order of Police’s Baltimore lodge, said rank-and-file officers are concerned about the city’s overall position on indemnification, since some are non-GTTF officers who were at the scene or working with the indicted officers the day of an incident.

But the police union backs Davis in not supporting indemnification of the GTTF officers.

“We’re not asking the government to protect someone that was outside the scope of their authority, which, they were criminals and they made us look bad and we need to come out from under that cloud,” Ryan said.

But Finegar said police officers should be concerned if the city prevails.

“We could lose a lot of good officers who are worried about who they are going to be paired up with in the future,” she said. “That’s something that our city can’t afford. We can’t afford to lose good officers.”

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