Settling Bell Lawsuit Made Sense, Say Legal Experts

James A. Cohen in The Chief, August 06, 2010

Media Source

By MARK TOOR

SETTLEMENT IN A TRAGIC CASE: ‘There is no victory here although the settlement was reasonable,’ Nicole Paultre Bell, fiancée of police shooting victim Sean Bell, tells reporters at her lawyer’s office. The city had just settled a lawsuit filed by her and two men who were in the car with Mr. Bell for a total of $7.15 million. The two children she had with Mr. Bell will share $3.25 million. She is flanked by attorney Sanford Rubinstein and her mother, Laura Harper. The Chief-Leader/Andrew Hinderaker SETTLEMENT IN A TRAGIC CASE: ‘There is no victory here although the settlement was reasonable,’ Nicole Paultre Bell, fiancée of police shooting victim Sean Bell, tells reporters at her lawyer’s office. The city had just settled a lawsuit filed by her and two men who were in the car with Mr. Bell for a total of $7.15 million. The two children she had with Mr. Bell will share $3.25 million. She is flanked by attorney Sanford Rubinstein and her mother, Laura Harper. The Chief-Leader/Andrew Hinderaker It’s easier to prove a civil case than a criminal case. No one can predict what a jury will do. And public relations was also a factor.

That’s why the city settled the Sean Bell case for $7.15 million July 27 rather than going to trial although the three police officers who two years ago faced criminal charges were acquitted, say legal experts.

Cops Fired 50 Shots

Police officers on an undercover assignment fired 50 shots at a car in which Mr. Bell, 23, was driving with two friends in Queens early on Nov. 25, 2006, the day he expected to get married. One of the officers, Det. Michael Oliver, fired 31 shots, which required him to reload. The officers said they believed that Mr. Bell was aiming the car at them and that at least one of the men in the car had a gun. All three were unarmed, although Mr. Bell had already struck one Detective and was driving at him again when he opened fire.

LISA SMITH: Easier to prove civil wrongdoing. LISA SMITH: Easier to prove civil wrongdoing. The case became a flashpoint for concerns about race relations; Detective Oliver and one other officer were white while the other three officers, like Mr. Bell, were black. The controversy was revived last December when the City Council voted to rename a Queens street for Mr. Bell.

The lawsuit, filed in U.S. District Court in Brooklyn in 2007, accused police of wrongful death, negligence, assault and civil-rights violations. Two of the officers were charged in State Supreme Court with manslaughter and a third with reckless endangerment; they were acquitted at trial. Federal prosecutors decided six months ago not to file civil-rights charges against the officers, saying, “Neither accident, mistake, fear, negligence, nor bad judgment is sufficient to establish a Federal criminal civil-rights violation.” The Police Department’s internal investigation is ongoing.

MICHAEL J. PALLADINO: Bell was the one most at fault. MICHAEL J. PALLADINO: Bell was the one most at fault. Children Get $3.25M

Under the settlement, the two children Mr. Bell had with fiancée Nicole Paultre Bell—Jada, 7, and Jordyn, 4 —will receive $3.25 million. One passenger, Joseph Guzman, will receive $3 million and the second passenger, Troy Benefield, will receive $900,000. Mr. Guzman was shot 17 times and four of the bullets are still in his body, according to the attorney for the Bell family, Sanford Rubinstein. Mr. Benefield was shot three times. Both men sustained permanent injuries, Mr. Rubenstein said.

CHARLES BARRON: Shocked payout wasn’t bigger. CHARLES BARRON: Shocked payout wasn’t bigger. The acquittals of the officers would not have been persuasive for the city regarding a successful civil-suit defense because the standard of proof differs significantly between civil and criminal cases, said Lisa Smith, a Law Professor at Brooklyn Law School. The standard for conviction in a criminal case is guilty beyond a reasonable doubt, she said, while in civil cases it is preponderance of evidence, “a much, much, much lower standard.”

James A. Cohen, a professor at Fordham Law School, said that in his experience criminal charges against a police officer are even harder to prove because juries factor in the danger of an officer’s job. (The Bell case was actually decided by a judge.) In contrast, he said, preponderance of evidence is often defined as 51 percent versus 49 percent—“the difference between dusk and twilight.”

‘Nobody Wants to Take a Chance’

“One side has to prove just a little bit more than the other,” said Leonard Baynes, a professor at the St. John’s University School of Law. He cited the O.J. Simpson case, in which the former athlete was acquitted at a criminal trial but found liable in civil court, as an example of how the standards of proof differ.

Victory in a criminal case doesn’t mean the city will be able to win a civil case, all three professors agreed. “Nobody wants to take a chance on seeing what the jury will do,” Mr. Cohen said. “So why risk it when you don’t have to?”

“The police behavior may not have been criminal, but were they negligent?” Mr. Baynes said. Negligence is easier to prove than criminality.

The case “will have a significant emotional impact on a juror,” Ms. Smith said. “It’s a very compelling and very tragic story.” In settling, the city “recognizes the tragedy and doesn’t have any desire to reopen all the wounds,” she said.

“The city was on the losing end of the public relations war,” Mr. Cohen said. He noted that civil cases that survive procedural challenges are settled at a rate of 94 percent to 97 percent.

“Public relations is always a factor in whether you settle a case or not,” Mr. Baynes said. He said the settlement was probably a public-relations victory for the city and for Mayor Bloomberg, who he said has to be responsive to all segments of the city. “People just want what they perceive to be fairness,” he said.

DEA: Settlement Excessive

Michael J. Palladino, president of the Detectives Endowment Associa- tion, said, “The settlement was excessive, and the fact that the attorneys stand to walk away with close to $2 million and they didn’t sustain one scratch is an indication of how excessive it is. . . The Detectives were exonerated in a state court after a thorough examination and again after a review by the U.S. Department of Justice. The settlement completely disregards Bell’s actions and his responsibility for getting himself killed and his friends injured.”

City Councilman Peter F. Vallone Jr., who chairs the Public Safety Committee, also criticized the settlement. “I’ve opposed many massive settlements the city enters into at taxpayers’ expense in the past, and this case is no exception,” he said. “This money could have paid for 70 sorely needed new Police Officers.”

On the other hand, “I was shocked it would be that small of a settlement,” said Councilman Charles Barron, a supporter of Mr. Bell’s family. The family should have received between $10 million and $15 million, Mr. Guzman $5 million and Mr. Benefield $3 million, he said in a telephone interview.

Dispute Over Potential Earnings

“He was going to be a baseball star, he was going to make millions,” Mr. Barron said of Mr. Bell, who pitched for John Adams High School and Nassau Community College. The day before he was killed he was invited to a spring tryout with the Los Angeles Dodgers, his father told Black Star News.

“The closest he ever came to the Dodgers was buying a T-shirt at Modell’s,” Mr. Palladino scoffed.

Mr. Barron noted that lawyers’ fees would take a huge bite out of the settlement. But he understood why Mr. Bell’s relatives sought to avoid a twoto three-year trial and gain closure on the shooting.

Mr. Rubinstein said at the press conference the day after the settlement was announced that it was the largest ever in New York State in a fatal police shooting. Ms. Bell said, “There is no victory here, although the settlement was reasonable.”

The judge has not yet decided on attorney’s fees, Mr. Rubinstein said.

About Equal to Diallo Settlement

The Bell settlement is similar in size to the $3-million settlement with the family of Amadou Diallo in 2008, after four plainclothes police officers from the now-defunct Street Crime Unit shot and killed the West African immigrant on his front stoop in The Bronx while he was taking out his wallet, which they believed was a gun. It is significantly lower than the $8.75-million settlement with Abner Louima, who was sodomized with a plunger by police officers in a bathroom at the 70th Precinct in 1997. The Louima suit was filed in Federal court, the Diallo suit in state court.

According the lawyers’ blog attorney2wrongfuldeath. org, the awards differed because the assault on Mr. Louima was intentional, while the shooting of Mr. Diallo was not. “From the law’s perspective, the difference between the Louima and Diallo case was the difference between an intentional tort [injury] and negligence,” the blog says. “And in New York, the difference between an intentional tort and negligence is huge—it is the difference of punitive damages.”

Anthony Gair, the attorney for the Diallo family, said when the settlement was announced that Mr. Diallo received a lower award because the state’s wrongful-death law does not allow the factoring-in of pain and suffering. In order to secure punitive damages, he would have had to show that police were not just negligent but reckless, a much more difficult standard to reach.

The officers involved in the Diallo case were tried and acquitted, while the primary police assailant in the Louima case, Justin Volpe, pleaded guilty and was sentenced to 30 years in prison.

Argument, Threat Raised Alarm

The Bell case began at Club Kalua in the Jamaica section of Queens, where several undercover officers had been sent to investigate allegations that the bar owners were facilitating prostitution. According to trial testimony, Det. Gescard F. Isnora observed a heated argument between Mr. Bell and another man who gestured as though he had a gun in his pocket, and a witness said Mr. Guzman threatened to retrieve his own gun.

Detective Isnora feared they were going to get a gun from Mr. Bell’s car, and approached it with his own gun drawn. Mr. Bell, who an autopsy found was legally drunk, drove the car at him, striking his leg, and then hit an unmarked NYPD minivan. When he drove forward again at Detective Isnora, the officer opened fire, and other cops joined in.

“Now we will focus our attention on defending our Detectives in the departmental process,” Mr. Palladino said.

Intern Michelle Manetti contributed to this story.