Victims of police wrongful shootings and other abuses have won millions from Miami in court
Miami Daily Business Review
November 8, 2001
Raul Sosa and other victims of police brutality and misconduct have won millions from the city of Miami in the courts. Is this simply the city's cost of doing business?
Miami has paid more than $17.8 million since 1990 to resolve more than 110 federal and state lawsuits alleging brutality, misconduct or unnecessary death inflicted by city police officers, according to city records.
And Miami's liability exposure for the actions of its police officers, problems with Police Department policy and administrative failures of top officials is far from over. Another 70 lawsuits seeking damages for alleged police wrongdoing -- some entangled in the courts since 1994 -- are awaiting trial or are on appeal.
Beyond that, the city has received formal notice of other planned lawsuits, including one by Jerry Frank Townsend, who was freed from prison in June after serving 22 years for six murders and a rape he didn't commit.
This year alone, through mid-October, the city has disbursed more than $1 million to satisfy judgments or pay settlements in 15 police misconduct cases.
The pace of litigation against Miami and its Police Department doesn't look to slacken anytime soon. New accusations of wrongdoing are being filed in federal or state court at a rate of about once every three weeks.
How Miami stacks up against other U.S. cities when it comes to police misconduct litigation isn't known; experts say litigation data haven't been compiled elsewhere.
But even as 73 percent of Miami voters on Tuesday voted to create a civilian investigative panel with subpoena power to probe allegations of improper shootings and excessive force by police, statistics compiled by the Daily Business Review present a troubling picture of police misbehavior and the city's response to it.
The numbers were distilled from records of police-involved litigation provided by the Miami city attorney's office in response to the Review's requests for public records. The records include litigation papers, settlement memos and a log of cases compiled using the city's litigation tracking system database.
Monetary damages aren't the only way the city pays for wrongdoing by its officers. The city also foots the bill for the large, less quantifiable costs of defending police misconduct cases. Those costs include salaries for city lawyers and support staff, legal fees paid to outside counsel and various costs such as court reporters and copying charges.
Fort Lauderdale, Fla., lawyer Barbara Heyer, who won a $2.5 million federal civil rights settlement for the family of Richard O. Brown, who was shot to death by Miami police in 1996, says the problem underlying all this litigation isn't just rogue police officers. City officials, she argues, foment police misconduct by tolerating sloppy internal investigations and intentionally hiding police records that might show pervasive patterns and practices of misconduct.
"These officers aren't doing these things for no reason," Heyer says. "They are doing them because they know they can get away with it, because the city through its higher-ups is helping them get away with it."
City Attorney Alejandro Vilarello, whose responsibilities include defending the city against police-related lawsuits, sees things differently. "Many times, too, we'll conclude there was nothing wrong, but insufficient documentation to support that position," Vilarello says. As a result, he says, the Police Department has made "many changes" in its procedures to improve documentation of events and training.
Despite the city's organizational problems, winning a lawsuit against the police isn't easy. State law limits the city's liability in state court suits to $100,000 per person, and $200,000 per incident -- unless the Legislature waives the cap by passing a special claims bill. The city bureaucracy also puts up administrative hurdles to litigation. And the investigative documents that plaintiffs need to prove police misconduct are written by the police themselves.
Since Jan. 1, 1990, Miami has prevailed in 100 police misconduct cases, city records show. Most of those lawsuits were dismissed or withdrawn before trial; a few were won before a jury.
"It's truly an uphill battle for a claimant who's been wronged," says Miami lawyer Robert N. Pelier, who recently settled for $200,000 a misconduct case arising from a Fort Lauderdale couple's humiliating encounter with Miami officers during a football game at the Orange Bowl.
MAYHEM AND MONEY
As compiled by the city attorney's office, police misconduct lawsuits fall into five general categories: false arrest, brutality or excessive force, shootings, wrongful death and federal civil rights violations. False arrest, a state tort and federal civil rights allegations account for nearly two-thirds of all complaints.
There were 66 brutality cases, 29 police shootings and eight wrongful death cases filed in the last decade. Some lawsuits, however, alleged multiple claims of wrongdoing, so the city's categorizations aren't always precise.
Excluding big settlements in two cases, those 103 cases have cost the city more than $3 million since 1990.
Specifically, 36 of those brutality cases were settled or went to trial; the average amount of damages was about $26,000. In eight shooting cases, the average cost to the city was $135,500.
Three wrongful death cases were settled for just over $1.1 million.
Eight brutality cases, 12 shooting cases and one wrongful death case currently remain open.
Allegations of false arrest led to the filing of 115 cases against the city. Thirty-seven of those cases were dismissed, withdrawn or otherwise won by the city. Another 53 cases led to payouts by the city totaling more than $693,000, or an average of more than $13,000 per case.
The most expensive cases generally are those alleging brutality, unjustified shootings or wrongful death. Two such cases account for most of the money Miami has been forced to pay during the last decade.
In 1993, the city settled with the family of 24-year-old Antonio Edwards for $10.9 million. That's the largest amount ever paid by a municipality for a police brutality case in the U.S., says Edwards' lawyer, Stuart Z. Grossman, of Grossman & Roth in Miami.
Edwards went into a coma in January 1992 while Officer Carl Seals was using a chokehold to subdue him. Later, Seals was fired, and the choke maneuver was outlawed. A brain-damaged Edwards has since come out of the coma but is confined to a wheelchair and can't speak. He communicates by blinking, said his mother, Wauneda Fain of Plantation, Fla.
"Money could never heal the wound that's been inflicted on this family," she said. "I would trade everything just to hear my son say 'I love you' one more time."
Records provided by the city attorney's office state that the settlement in the Edwards case was $7.5 million. Court records and other city documents, however, show that number doesn't include $3.4 million paid by the city in 1993 to purchase an annuity that pays for Edwards' daily medical care for life. If Edwards lives to age 65, the total value of the settlement will be $34.5 million.
The second big payout was in March of last year, when the city finalized a $2.5 million wrongful death settlement with the family of 72-year-old widower Richard O. Brown. Brown, who had no criminal record, was machine-gunned by police in his own bedroom during a 1996 drug raid. Officers fired 122 shots, striking Brown nine times. Five Miami officers are currently under federal indictment that alleges conspiracy and a coverup in Brown's death.
City records show that, since the beginning of 1990, Miami reached pretrial settlements in about 90 percent of the cases ending in payouts. Sometimes, city commissioners agreed to settle after the city attorney's office warned in a confidential memo about the likelihood of much larger awards by a jury.
Even Miami police officers have sued the city for police misconduct, alleging victimization at the hands of fellow officers.
In August, the city paid Miami Officer Mariline Penn $156,000 to settle two lawsuits alleging false arrest that stemmed from her 1996 arrest, while off duty, by Lt. Kevin McKinnon.
A month earlier, retired Officer Jesus Del Rio received $75,000 to end litigation claiming he was retaliated against by superiors for blowing the whistle on allegedly illegal orders, including one that established arrest quotas disproportionately targeting minorities.
Among the pending cases are two police-on-police cases filed in Miami-Dade Circuit Court in 1999 and 2000 by Miami Officer Raynard Gilbert and his wife, Metro-Dade Officer Hawanda Gilbert. The two lawsuits cite separate incidents in which Hawanda Gilbert claims she was falsely arrested and brutalized by Miami officers.
As in the cases of Edwards and Brown, many plaintiffs who sue the city for police misconduct are black. That includes Miami-Dade Circuit Court General Master Joseph Lang Kershaw Jr., who settled an assault and battery and false arrest case with the city for $25,000 in 1997. Kershaw alleged he was brutalized after stopping to get the name of a police officer he says he saw mistreating a suspect.
CIVIL RIGHTS VIOLATIONS
The city attorney's office lists another 67 lawsuits brought under Section 1983 of the federal Civil Rights Act, which allows people to sue police and others for deprivation of rights. Since 1990, those kinds of suits have cost the city $960,000 in damages. The biggest payout: a $380,000 settlement last March to Miami tow truck driver Raul Sosa and his wife, Maura.
In 1995, Miami police staged a drug raid on the Sosas' home. No drugs were found. But Raul Sosa was arrested and allegedly battered by the officers.
The Sosas filed a multicount suit in U.S. District Court in Miami alleging civil rights and other violations. In February of last year, a jury awarded the Sosas $775,000. The city was held liable for false arrest; two officers, Luis Diazlay and Jose M. Garcia, were found liable for battery and excessive force. A judge reduced the verdict to $300,000, and ordered a loss of consortium claim by Maura Sosa retried.
Three months later, the Sosas filed a second federal lawsuit claiming that after the verdict they'd been "extensively harassed, provoked and intimidated" by the officers they'd sued. The $380,000 payment by the city settled both lawsuits and the loss of consortium claim.
In August, Miami settled another civil rights case for $200,000. Fort Lauderdale stockbroker Gregory Langsett and his former wife, Kathleen, collected the money for an encounter they had with police officers during a 1996 football game at the Orange Bowl. The Langsetts, who won a $425,000 jury verdict last year, said they were falsely arrested and abused after Mrs. Langsett objected to Officer Anthony Proffitt's unwanted sexual advances.
The city settled on the recommendation of outside counsel Nina K. Brown, of Akerman Senterfitt in Miami, who cited the "inflammatory facts in this case."
According to a memo written by Brown, "Mrs. Langsett claimed that the officers kicked her, tore her clothes and fondled her exposed breasts ... she was paraded off to the holding cell at the stadium in front of many spectators while her clothes were ripped and breasts exposed."
Proffitt was cleared of wrongdoing by the Police Department's internal affairs unit, says Robert Pelier, the Langsetts' lawyer. Six months before the trial, however, Proffitt was fired for official misconduct involving sex with prostitutes, according to police records.
In April, the city settled a multicount complaint alleging false arrest and battery. Daniel Hoban, the victim of a police shooting and attempted gun-planting frame-up by officers in Coconut Grove in 1997, received $25,000.
In that case, ex-Officer Rolando Jacobo was convicted in Miami-Dade Circuit Court for official misconduct, a third-degree felony; four officers are now under a federal criminal conspiracy indictment in the case.
The city agreed to settle with Hoban at the urging of Assistant City Attorney Charles C. Mays. In a memo, Mays said the city should pay "without admission of liability, so as to avoid a probable verdict far in excess of that amount."
MANY PENDING CASES
Miami's liability exposure remains large. Pending lawsuits include actions in U.S. District Court in Miami seeking damages under both federal civil rights law and state tort law for the deaths of alleged robbers Antonio Young and Derrick Wiltshire, who were shot in the back by officers after leaping from an Interstate 395 overpass.
In that case, five officers are under federal indictment for a gun-planting conspiracy. Two other ex-officers, John Mervolion and William Hames, pleaded guilty in federal court in September to conspiring to violate Young and Wiltshire's civil rights.
There's also the wrongful death lawsuit filed in Miami-Dade Circuit Court by Betty Simpson in 1996, alleging that the Miami police failed to protect her late daughter, Morena. According to Simpson's Miami attorney Ronald S. Guralnick, Morena, 33, had obtained a restraining order against her abusive boyfriend.
The day before her death, she called the police to report that Carl Hurd, the father of her 14-month-old son, was threatening her. An officer detained Hurd, put him in his patrol car, but let him go after Hurd begged to be released. The law, however, requires that arrested violators be jailed.
Later, Hurd went back and killed Morena Simpson. Today, he is serving life in prison.
The oldest pending case against the city is a 1994 negligence action in state court involving 18-year-old twin brothers Shelton and Shellie Wilson. Shellie was shot and paralyzed by an unknown gunman in a nightclub parking lot in 1992. Minutes after that shooting, Miami Officer Reginald Kinchen shot and killed Shelton. Kinchen, off-duty but in uniform, was later absolved of wrongdoing at an inquest.
Kinchen claimed he fired after seeing Shelton holding a gun next to his fallen brother. In fact, Shelton had been trying to help his brother, who now is a quadriplegic. Trials on that case and a related state case filed in 1996 are set for January.
STATE OF DENIAL
Despite all the verdicts and settlements, top city officials insist that there's nothing systemically wrong with the Police Department or the city's oversight of it.
For example, City Attorney Vilarello rejects the idea that the $775,000 federal verdict in Raul Sosa's brutality and false arrest case -- and the alleged post-verdict retaliation against Sosa by officers and other city workers -- indicates any broader problems. "We don't agree with the jury verdict in that case," he says. "We tried that case because we believed what the officers told us."
"That's an amazing statement," says John D. Mallah, of Mallah Blaker Aronowitz & Starling in Miami Lakes, who represented the Sosas. "If I don't respect a jury verdict, how can I ever learn from the process?" Mallah says that to his knowledge, the Police Department never investigated Sosa's contention that he was retaliated against after winning in court.
Mallah and other attorneys who have won big police misconduct cases against Miami say the city's legal defenses have been undermined by poorly written police reports and lax internal procedures. Mallah says he's seen city arrest affidavits "almost devoid of material fact. How can an officer sustain himself on cross-examination when the documents he's using to refresh his recollection will make him look like a stuttering fool."
Mallah also questions how well a citizen oversight board can operate without adequate documentation. "How can you have citizen oversight to raise the level of confidence if the public records are written in a way that you can't make heads or tails out of what happened."
It's difficult to determine how the city has dealt with police officers involved in cases resulting in misconduct verdicts and settlements. The city keeps no records correlating the litigation with disciplinary action.
Police Chief Raul Martinez says his department's disciplinary response in a particular case depends on the purpose of any legal settlement -- whether it reflects a decision that the officer misbehaved or is simply a tactical legal decision.
"If the officer did something wrong, hopefully we have dealt with it beforehand or are dealing with it then," Martinez says. "Some settlements are business decisions, that is, the city attorney's office feels that jury could find against us."
But William C. Heffernan, professor at New York's John Jay College of Criminal Justice and editor of "Criminal Justice Ethics," says it's perilous for Miami and other cities to regard these cases in purely legal terms.
"The danger is that high-level police officials will not take these cases seriously -- even when there are six-figure judgments -- and respond by altering department practices," he says. "Instead, they may simply conclude that this is the cost of doing business in a large scale department."
Indeed, then-Miami Police Chief William O'Brien took the latter position when interviewed in March of last year by the Daily Business Review about the city's decision to pay $2.5 million to settle the Richard O. Brown wrongful death suit.
O'Brien said the decision to settle that case was strategic -- not based on any concession by the city that the police officers acted improperly. He noted the officers were cleared by an inquest judge and various police investigations; no officers were disciplined, and no departmental policies were changed. "I'm absolutely comfortable that the shooting was a good shooting," he said.
But federal prosecutors and a federal grand jury in Miami disagreed. A year after O'Brien's remarks, the grand jury indicted Officers Jose Acuna, Arturo Beguiristain, Ralph Fuentes, Eliezer Lopez and Alejandro Macias on charges of fabricating evidence and lying to cover up what happened the night Brown died.
Since then, six additional officers -- Jesus Aguero, Jorge Garcia, Israel Gonzalez, Jose Quintero, Jorge Castello and Oscar Ronda -- have been charged in a superseding indictment that added three other police shootings and alleged a broad conspiracy to cover up police wrongdoing by planting guns and lying. Two retired officers, Mervolion and Hames, pleaded guilty.