You may have seen that today, under much media scrutiny, the Baltimore City Board of Estimates approved a 6.4 million dollar settlement of all claims that the Gray family may now or ever have as a result of Mr. Gray’s death against the Baltimore Police Department, Baltimore City, any other city or state agency, or any individual police officer. ENLawyer Jeremy Eldridge was quoted in the article and people from both sides of the issue have been sounding off regarding the settlement, but I wanted to provide some analysis from both a practical and legal basis for the settlement and its impact moving forward.
Settlement: Positive Practical Implications
Settlements of civil claims that close major issues are good things. The are final, cannot be undone, and usually include a gag order. In the situation of Freddie Gray, the settlement will likely include a gag order, which will preclude his family and his attorney from discussing the case, the settlement and any other related issues moving forward. Additionally, there was a possibility that this case was filed under a federal class action and/or civil rights basis as a result of what is termed a “rough ride.” A rough ride is where a police officer intentionally drives a paddy wagon over potholes to give the rear passengers a difficult ride. If this was proven to be the case and there was a potential class or civil rights suit, the stakes would be raised significantly. This could have cost the city tens of millions of dollars, rather than $6.4 million. Furthermore, this provided personal protection to city employees, agencies, and others who would potentially be personally exposed to liability. The officers involved are already facing jail time, but to lose whatever personal assets, homes, cars, etc would be a double blow. Finally, there is something important about finality. This closes the book on any civil case. It allows the city to move forward knowing exactly what it will cost and saves the City Solicitor’s office hundreds of man hours of work that they can spend attending to other cases/matters that are more pressing.
Settlement: Negative Practical Implications
We don’t have a lot of information but the timing is curious. Usually there would be a significant dialogue behinds the scenes between Mr. Gray’s attorney’s and the City’s attorneys. We obviously aren’t privy to that information, but normally there is no rush to sue, as there is a 6 month “notice” requirement to sue local government but a 3 year statute of limitations. Why now? I don’t know the answer. This is an election year, and closing this chapter before the election really kicks off may have been a factor. It’s very curious. It also creates a perception (although not true) that the city is admitting wrongdoing on behalf of the officers. Almost all civil settlements include a stipulation to NO admission of liability. BUT…that’s kind of pointless, as the perception is the same. One other point, will this create copycats and/or a precedent for settlement of civil suits? It is hard to imagine someone intentionally injuring him/herself in police custody but when I was a prosecutor I saw people in custody do some pretty strange things. I can’t say that it won’t happen, but I think the likelihood is minimal.
What does this mean for the criminal case?
As my partner, Jeremy Eldridge said in the Baltimore Sun, “”It’s definitely an issue that’s going to be raised, and it’s definitely going to come to the forefront of the conversation” during a motions hearing this week to determine whether the officers should be tried in Baltimore.” The biggest impact will be on the venue issue.
I personally believed that severing the 6 cases gave it the strongest possibility of staying in Baltimore City, but now with this perception of an admission of liability I cannot imagine this case not moving to a different venue. Legally speaking a civil case is decided by a preponderance of the evidence, or more likely than not, that a particular act or omission occured (think 51%). Criminal law is beyond a reasonable doubt (think 97-99% – even though you’re not supposed to assign a number to it). It’s a high burden. When analyzing a case and settlement possibilities, attorneys have those burdens in mind. But in my experience, most non-lawyer’s don’t! It would be difficult to find people who didn’t consider this settlement an admission of liability. If you didn’t do anything wrong, why did you pay????
Moving forward
Venue is going to be decided tomorrow. Of course, what I say, or what any other members of the media, public, or legal world says is pretty much irrelevant. The bottom line is that the judge associated with the case will need to determine if the Defendants associated with the case will have a fair trial in Baltimore (No, the victim does not have a right to have a fair trial, the Defendant does). We’ll just have to wait and see, but if I were a defense attorney representing one of those charged, you better believe I’d have a copy of the newspaper article in hand ready to argue tomorrow!