A tort time bomb
As a record number of lawsuits against the city's police move into litigation, the price tag is $150 million a year and growing. Where will it stop?
By Maura R. O'Connor
Lawsuits against the city’s police soared to a record 2,004 cases entering the courts in the year that ended July 1.
That’s a 28 percent increase over the previous fiscal year, as recorded in the recently released Mayor’s Management Report. It indicates that the flood of cases brought against the New York City police — which have seen a 63 percent rise over the last decade — has not subsided.
Because cases against the NYPD can take at least two to three years to conclude, a spike now means that payouts for court judgments and settlements are likely to squeeze the city budget in coming years.
“It suggests the city has a ticking time bomb for making payouts for police conduct,” said Mark Taylor, an attorney who represents plaintiffs in police misconduct cases. “There is tremendous pressure on the police to make arrests and keep crime numbers low but if there is little legal basis, that costs them money years later.”
In 2010, the NYPD became the city agency with the highest volume of tort claims with more than 8,100, surpassing the Department of Transportation and the Health and Hospitals Corporation, and accounting for $135.8 million of the city’s total expenditures for judgments and settlements, according to the New York City Comptroller.
The Mayor’s Management Report only includes claims that have been assigned a litigation start date, and not all claims result in litigation.
Some claims may be settled between the city and the plaintiff outside of court, and others never develop into a lawsuit because the claim was baseless or too weak to build a case.
Though the Mayor’s Management Report does not break down its data on cases by type, in past years the rise has been fueled by civil rights lawsuits, which are handled by the Special Federal Litigation Division of the Law Department.
In the most recent five years documented by the Comptroller’s Office, civil rights claims brought against the NYPD increased by 70 percent, from around 1,500 in 2006 to more than 2,600 in 2010. The cost of those claims totaled about $78 million in fiscal year 2010.
The Comptroller’s Office has not yet released the 2011-’12 edition of its biannual report on legal claims against the city, but lawyers who file civil rights cases say the volume of litigation has likely continued to rise.
“All of us have noticed a huge increase in lawsuits against police,” said Joel Berger, a civil rights attorney for 45 years who was a senior litigator with city’s Law Department from 1988 to 1996. “People are going to the [Civilian Complaint Review Board] less and going to the courts more. The city is overloaded with complaints and lawsuits.” (The Mayor’s Management Report shows a 25 percent decrease in Civilian Complaint Review Board cases since the previous edition, to 5,724 last year.)
“Whether it’s stop and frisk, marijuana arrests, trespassing — this stuff is completely out of control,” said Berger.
The NYPD paid out $80 million to plaintiffs who had filed tort lawsuits against the department — a sharp decline from the $99.8 million it paid out last year and a return to a level last seen in 2008, according to the Mayor’s Management Report.
But that’s not the entire picture of the NYPD’s exposure to legal claims. The mayor’s official budget statement, filed earlier this year, shows that the NYPD expected to spend $154 million in 2012 on judgments and claims. For fiscal year 2013, now underway, the NYPD has budgeted $180 million for payouts.
New York City has made efforts in recent years to limit the extraordinary sums of money it spends on tort cases. While Los Angeles pays approximately $14 dollars per capita each year, New York City spends about $81.
In its 2011 bi-annual report on legal claims, the Comptroller’s Office recommended that the police department begin pilot programs to reduce risk and the costs of litigation. The number of claims, the report said, represent a “growing area of concern.”
In response to the rise, the city has been lawyering up, increasing the size of its Special Federal Litigation Unit staff from 92 to 127. Rose Weber, a plaintiffs’ attorney who previously worked for the Law Department, says she saw a clear shift in the city’s posture as the number of lawyers boomed. “They got really cocky, saying we’re not going to settle, we’re going to take them to trial,” said Weber.
However, the city’s eagerness to file motions for dismissal of cases angered some judges, according to Weber. “In two of my cases, the judges were furious. In one, the judge threatened sanctions. I think the city decided ‘let’s pull back on that strategy’ once they saw they were not going to get them all thrown out,” she said.
The Law Department declined to comment for this story. But its 2011 annual report stated that the Special Federal Litigation Division expanded its trial practice and won an “unprecedented 21 consecutive defense verdicts.” The report also indicated that the department is advocating for tort reform measures in an effort to end what it calls the “litigation lottery.”
City Councilmember Peter Vallone, Jr., who chairs the council Public Safety Committee, contends that too many cases gets settled regardless of actual wrongdoing, and that the Law Department should be taking even more to trial.
“Their policy is to settle way too many cases,” said Vallone about the Law Department. “If the Corporation Counsel only settled cases where the police department was wrong, the police could learn a bunch of stuff from that. But if they settle for reasons unknown, then it makes it much harder for police to know.”
To save millions of dollars down the road, the city’s approach to police claims, said Vallone, should be “settle when you’re guilty, learn from it, and fight like hell if you’re not.”
In the past, some within police ranks have claimed the rise in cases is the result of a cottage industry of greedy plaintiffs’ lawyers. But the increasing media attention paid to the NYPD’s tactics might also explain the increase. Coverage of several high profile court cases challenging stop-and-frisk practices, for example, mean plaintiffs are more aware of their rights and the ability to use the courts as a forum for redress, said one attorney.
“There’s been a lot of public analysis of whether police are engaging in these tactics and whether they are discriminatory,” said Katherine Rosenfeld, who represented 22,000 plaintiffs in a loitering class action settlement against the NYPD that resulted in a $15 million settlement this year. “I think it has filtered into the public consciousness, perhaps even more than other police misconduct lawsuits have in the recent past.”
During budget hearings in May, City Council members raised concerns about the toll of NYPD judgments and claims on the city’s budget. “It is a significant amount, and some of it may be associated with Stop, Question and Frisk,” said Police Commissioner Ray Kelly in response to questioning. “You have to look at the totality, and you have to look at the effects of the tactics and strategies and practices that are in place.”
Berger maintains that the city has so far taken the wrong approach to decreasing litigation against the police and should be following the example of cities like Los Angeles and Chicago, which track litigation data and use it to identify problem officers and issues.
“It is absolutely absurd to respond to an increase in lawsuits by simply hiring more lawyers and defending to the hilt,” he said. “That is such poor public policy. What they should be doing is asking themselves, ‘Why?