BALTIMORE, MD — As many as nine Baltimore police officers could have to pay tens of thousands of dollars in damages after juries found they acted with “actual malice” in the course of making arrests — a development that prompted a warning from the police union and, in turn, a fiery response from the city’s top lawyer.
The union asserted in a memo Tuesday that forcing officers to pay such damages themselves was a change in the city’s policy. But both City Solicitor Andre Davis and his predecessor said Wednesday the policy has not changed and officers have potentially been on the hook for decades in such cases.
Davis said what has changed is that he has been more transparent about the policy, noting it in materials submitted to the city’s spending board in December. Davis called the memo by a local Fraternal Order of Police leader an attempt to “stir something up.”
“Unfortunately, as I’m sure you know, right now the city and the police department have an adversarial relationship with the FOP,” Davis said. The city is involved in litigation with the union over pensions and overtime and is in the midst of contentious contract negotiations.
The dispute highlights differing views of whether civil lawsuits should be used to hold individual police officers accountable. Davis said officers need to know that the city will not always back them when they’re found to have acted badly. But police union officials questioned whether juries can reach the right verdict in every case and said the financial risk the policy creates could deter people from joining the department.
Lt. Gene Ryan, the police union’s president, told his members Tuesday that the city had “generally supported” officers in the past by paying punitive damages as well as compensatory damages awarded in civil jury trials. Ryan told his members that Davis, a former federal judge who joined the city last year, has changed that policy.
“What this means is that police officers are now required to pay these punitive damage awards, which can amount to thousands of dollars, out of their own pockets,” Ryan wrote. “Please keep this in mind as you go about performing your duties.”
Earthquake going through the Baltimore police force after this message blasted out by union about city no longer covering punitive damages in lawsuits: “The successful citizen can file an attachment against your wages taking 25% of your pay … Please keep this in mind” pic.twitter.com/uwFTm7Tg1A
— Justin Fenton (@justin_fenton) February 7, 2018
But former City Solicitor George Nilson, whom Davis replaced, confirmed that this has long been the city’s policy. He said the Baltimore law department has held for years that taxpayers are not responsible for paying punitive damages when a jury finds the officers acted with malice. He said such cases arise rarely because the city often settles cases before trial.
“In the past, the city law department has appropriately refused to pay malice judgments,” Nilson said.
The Police Department declined to comment on the issue.
Michael Davey, a lawyer at the firm that represents the police union, told reporters at a news conference Wednesday that as many as nine officers currently face such judgments. He declined to identify them, but some of the cases are publicly known.
In August two men, Leo Joseph Green and James Green, won a jury verdict against Officers Nicholas Chapman, Daraine Harris, Brian Loiero, Marcus Smothers and Nathan Ulmer. The suit alleged battery, false arrest and violations of constitutional rights stemming from an incident that occurred June 13, 2013, in the 6000 block of Moravia Road in Northeast Baltimore.
The jury called for $147,100 in compensatory damages, as well as $40,000 in punitive damages. One of the officers faces paying $15,000, with the others responsible for smaller amounts.
Davis said he is obligated to tell the city’s Board of Estimates only about payouts resulting from settlements, not from jury verdicts, but felt he should publicly flag the case. His office told the board the city is not liable for punitive damages, and that the officers’ own lawyers saw no grounds to appeal the verdict.
Davis said it was possible he could grant an exception after further review and agree to cover the officers’ payments and would do similar reviews in other cases.
But at the news conference Davey said police officers need certainty up front. Raising a concern about a jury making a “rogue decision,” Davey called on the city to agree pay punitive damages if prosecutors and internal affairs investigators clear the officers of wrongdoing.
Davey said he wasn’t seeking blanket protection: “If he has an arrest and an individual’s handcuffed and he walks up to him and kicks him in the face, that officer’s on his own.”
In another case, Chaz Ball, another union lawyer, said a federal judge threw out a jury verdict that would have left an officer on the hook for $800,000, but the damages were reinstated on appeal. The case is now pending before the Supreme Court.
Nilson noted a situation in which the city did agree to make a payment in a case that involved a determination of malice. He said that in 2006, a Baltimore Circuit Court jury determined an officer had to pay Albert Mosley $44 million because of a 2003 encounter inside a city jail cell that left Mosley a quadriplegic. Nilson said the city refused to pay the multimillion-dollar verdict in the case, and eventually the plaintiff’s lawyers agreed to a $1 million payout.
“We said, ‘You proved malice and we don’t pay for malice,’ ” Nilson said. “They started coming after the officer’s house and wages and that prompted us to say, ‘OK, the officer is suffering.’ We took mercy on the officer and we did pay a significant amount.”
The $147,100 judgment in the case against the five officers means taxpayers will have paid out more than $1.2 million over two years to settle three cases in which Chapman was a defendant. Last year, the family of Tyrone West was paid $1 million by the city and state to settle a wrongful-death lawsuit alleging police misconduct and excessive force. Chapman was one of the officers involved.
In 2016, a jury awarded Abdul Salaam $70,000 after he filed a civil suit against Chapman and other officers alleging that he was beaten during a July 1, 2013, traffic stop in Northeast Baltimore.
From The Baltimore Sun