Amid City Budget Crisis, New Scrutiny on Millions in NYPD Settlements

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Last year the city of New York paid out $135.8 million to satisfy claims brought by the public against the NYPD, according to an excerpt of a draft of a report by City Comptroller John Liu that was obtained exclusively by WNYC. From Fiscal Year 2001 to FY 2010, claims against the NYPD have spiked by 71 percent, Liu's analysis found.

Consider that in Fiscal Year 2003, Mayor Bloomberg's first full fiscal year in office, the city paid out just $68 million dollars in NYPD tort claims, according to the mayor's management report. By Fiscal Year 2009, it had grown to $117.6 million. The police pay outs in 2010 included $56.4 million for "alleged improper police conduct such as false arrest, excessive force or assault." (The majority of these payouts are in the more banal categories of fender-benders and non-behavioral claims). That category is up by 15 percent from the year before.

As the City Council grapples with the one-two punch of billions in state and federal cutbacks in municipal aid as well as $8 billion in required pension contributions, what the city pays out in legal settlements is coming under heightened scrutiny. The council has vowed to find the estimated $300 million needed to save 4,000 teachers jobs and the $50 million to keep 20 fire companies operational. All totaled, the city is expected to pay out somewhere between $600 and $720 million in FY 2012 alone to satisfy all claims brought against the city.

Comptroller Liu is responsible for certifying and tracking all of the hundreds of millions of dollars the city pays out each year to settle all those lawsuits brought by the public against the full number of city agencies with the Department of Education, Department of Transportation and the city's massive Health and Hospitals Corporation at the top of the list.

Not surprisingly HHC, with its 11 acute-care hospitals and scores of community clinics, has always ranked at the top for payouts for malpractice and tort claim settlements - except for last year when the NYPD's payouts surpassed HHC's last year by more than $5 million.

"A review of settlements and/or judgements reported for the last 30 years revealed that this was the first time that an agency other than HHC had the highest claims pay out for a particular year," according to Liu's analysis.

Liu's report sites HHC's "pro-active risk and litigation mitigation efforts" as the reason HHC was able to bring down significantly the number of claims and the amount of money paid out since FY 2003 when the city "paid a 10 year record high of $195.4 million in medical malpractice claims." Such mitigation efforts include proactively looking at where HHC has had to pay out in the past and looking for patterns of behaviour that can generate "lessons learned." Those lessons are internalised across all of HHC's platforms. So in essence an aggressive investigation of all claims that are filed against HHC helps the health care giant find new ways to improve patient safety and reduce their risk profile..

Comptroller Liu suggests in his analysis that other city agencies like the NYPD should replicate HHC's success story of laser-like focus on risk and litigation management. The NYPD's troubling tort trend has been in the making for years. Liu's predecessors Alan Hevesi and Bill Thompson both tried to encourage the NYPD and the city's Corporation Counsel, which handles the NYPD claims, to use details from the civil suits filed against the police for clues on how to avoid future pay outs.

In a 2010 comprehensive national review of how some of the nation's biggest police departments handle tort claims Joanna Schwartz, law professor at UCLA said the NYPD was "a prime example of a department that has long paid little attention to lawsuits and their outcome." Schwartz says the city's Corporation Counsel that gets the legal filings keeps the NYPD in the dark on the specific details on the thousands of claims filed annually. (Last year there were 8,104 of them compared with 6,475 the year before.") Schwartz says the city's Corporation Counsel "only offers detailed memoranda about the one to two percent of cases anticipated to result in a payment of $250,000 or more."

In 2000, the New York city Bar Association issued a detailed report entitled "The Failure of Civil Damages to Modify Police Practices, and recommendations for Change." The report quoted former Comptroller Hevesi's assessment that there was "a total disconnect" between the settlements of civil claims and the NYPD when it came to gleaning lessons learned.

"Most important the present policy, in place for years, has resulted in a situation in which the city consistently misses opportunities to increase the protection of the rights of persons in the city and to reduce injuries that poison the relations between police and citizens and in doing so saving millions of dollars," concluded the report.

Deputy Police Commissioner Paul Browne says the department would welcome city's lawyers taking a more aggressive stance when it comes to settling cases out of court, even if they are low-visibility cases where the settlement is only thousands of dollars. He says saving the city litigation costs shouldn't be the only priority and thinks the payouts only encourage the litigation.

“If there is an accumulation of nuisance suits settled where the police have done nothing wrong but the calculation is its cheaper to settle, it creates the possibility of eroding faith in the police," said Browne.

Browne says two years ago, Commissioner Kelly formed a "lessons learned" committee to examine settlements and verdicts against the department, chaired by S. Andrew Schaefer, former NYU Senior Vice President, General Counsel who is also a constitutional and criminal law scholar. The committee also includes Chief of Department Joseph Esposito, the highest ranking uniformed member of the NYPD.

When asked to comment on this article and the latest NYPD claim numbers the Corporation Counsel's office decline to comment. But at his last appearance before the City Council, the city's top lawyer Michael Cardozo told the council's Finance Committee that his office hoped to hire 28 civil rights law litigators to help the city do a better job handling the increased volume of NYPD civil rights lawsuits.

The lack of any meaningful connection between the city's hundreds of millions of dollars in NYPD payouts and changes in police behavior is a pricey missed opportunity according to NYCLU lawyer Chris Dunn. "With the city paying out tens of millions of dollars every year, on police misconduct cases, that cries out for some very close accounting and some very close accountability and we have neither.”

City Council Public Safely Chairman Peter Vallone is a former prosecutor and considers himself a law enforcement advocate. Vallone has legislation pending that would make the whole police tort claim process more transparent for the council and the public. He wants the public and the council to have easy access to the details on the settlements and he doesn't want NYPD cases just settled out of court for a nuisance amount. But if the civil claim process turns up evidence of police misconduct, he wants the council and the NYPD to know.

“So we know why these cases are being settled, we know what precincts are involved, we know what officers are involved because something has to be learned from these” suits said Vallone.