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Chart: Settlements, defense verdicts in civil rights cases against S.F. police Blessed Herve’s story was stomach-turning. Early last month, a federal jury listened as his lawyer described how a San Francisco police officer allegedly led a handcuffed Herve into a holding cell and forced him — by punching him in the stomach, slamming his head into the wall, and grabbing his testicles — to take a seat on a bench “covered in human feces.” The civil rights lawsuit accused another officer of looking on, laughing. In the officers’ defense, Deputy City Attorney David Newdorf was the picture of incredulity. Depicting Herve’s witnesses as untrustworthy and his story preposterous, Newdorf challenged the credibility of one plaintiff witness who had described encountering Herve after the incident. “When’s the last time you walked up to someone who smelled like feces and said hi?” he asked. “Real people don’t behave like that.” When the jury sided with the defense two days later, it fit into a pattern that has emerged in civil rights cases against San Francisco police: The city attorney’s office is either settling the cases or winning them at trial. The city has paid plaintiffs a total of $3.3 million in 31 civil rights suits filed against San Francisco police since the beginning of 2000, according to a Recorderanalysis of data provided by the city attorney’s office. Nearly all of those payments, which ranged from $300 to $925,000, resulted from settlements. Though City Attorney Dennis Herrera’s office doesn’t formally track its trial record in these cases, Chief Trial Deputy Joanne Hoeper said the city has successfully defended almost all that have gone to trial in the last five years. (She estimates that about two dozen suits against police officers have reached trial since 2001.) Deputy city attorneys say they are passionate about protecting good cops’ reputations. Sometimes the office’s police clients express frustration when their cases are settled and they don’t get a chance at vindication before a jury, but the attorneys say they must consider possible culpability and protect the city against financial risk. In any event, the city seems to be doing a good job of risk management. The city of Los Angeles paid $4.1 million to settle police misconduct litigation stemming from a single event — protests at the 2000 Democratic National Convention, according to the Los Angeles Times. And the city of Oakland paid out $10.9 million just to settle the litigation involving the four “Riders” police officers. Special risks Civil rights cases against the city’s police usually fall to one of about 10 lawyers on the office’s trial team who specialize in such cases. “These are among the most important defense cases that are handled by the office,” Hoeper said. The damages sought can be sizeable, and cop trials typically carry two other risks. Unlike a bus driver in a routine traffic accident, police officers accused of violating someone’s civil rights may face punitive damages, which they usually have to pay out of their own pockets. And plaintiffs suing police for civil rights violations usually do so under laws that allow them to collect attorneys fees from the city, on top of damages, if they win. “There’s a huge downside risk of attorneys fees,” Hoeper said. “That’s a major reason why the city settles these cases.” Deputy City Attorney Blake Loebs, who began sitting first chair on police cases about seven years ago, says he was “a little hesitant” to take on the cases at first. “You make a mistake in those cases, it can be more serious than a $20,000 slip-and-fall case,” said Loebs, whose caseload is now almost exclusively police and sheriff’s deputy cases. “Even the small cases with the small damages can be very large.” More than money is at stake. “There are very emotional, political, high-profile issues that � witnesses and city officials and the parties have very strong feelings about, apart from whatever did or didn’t happen with the incident,” said Newdorf, the deputy city attorney who tried the Herve case. “It makes [these cases] interesting, and it also makes them difficult.” The cases rely more on events than on documents, said Deputy City Attorney Evan Ackiron, contrasting it with his former associate’s job at Morrison & Foerster. “Ninety-nine percent of [these] cases focus on two minutes or less of time.” The cases may involve reconstructions of shootings or high-speed chases, Loebs said. “It’s the same reason cop shows are popular. It’s interesting stuff.” It’s not unusual for the city to stand on principle in police cases, he said, adding that he recently tried (and won) a case in which the city didn’t offer a penny. “As someone who likes to try cases and likes to [believe] in what they do, that’s a good position.” Like Ackiron and Loebs, some of the other lawyers who defend cops started off doing civil litigation at big law firms. Some, including Newdorf and Deputy City Attorney Scott Wiener, also got exposure to civil rights or criminal law by clerking for a judge. And a couple, like Deputy City Attorney Sean Connolly, started their trial careers facing off against police as public defenders. Connolly also stands out, though, for representing the police before he joined the city attorney’s office. After six years as a deputy public defender, Connolly spent two as general counsel for the local police union, a job that included representing cops in criminal court and administrative hearings, as well as in labor negotiations. While he acknowledges some might view his career path as “odd,” Connolly doesn’t see it that way. “I was as passionate about defending the rights of my criminal defense clients as I am about police officers,” he said. “No matter who you are, you’re entitled to the same rights.” And the police cases are “imbued with lots of idealism,” he said. “There’s always this clash � [where] people measure police conduct against people who act outside the rules.” Newdorf, who describes himself as “a pretty liberal person, pro-civil rights,” says he came to the assignment with “a certain skepticism about how candid and forthright the officers may be when they were accused.” But at the same time, he said, many civilians don’t understand the authority police have and the danger inherent in their job. (Disclosure: Newdorf was a reporter with The Recorderduring the early 1990s.) BALANCING ACT The city doesn’t want to settle for a nuisance amount just to avoid the expense of a trial, Hoeper said, because that’s “not sending the right message to the officers, and it’s encouraging people to make false claims.” But there are times when the city decides to negotiate rather than risk paying the other sides’ legal bills. If there are big attorneys fees on the line and “we think that reasonable minds can differ” at trial, Hoeper said, “that might tip the balance in terms of resolving it.” Sometimes, “there are errors in judgment,” Hoeper said. “And in that case people should be compensated.” For the city’s police clients, some settlements can be discouraging. Some officers have been dismayed when the city attorney’s office settled, even when the officers believe they’ve done “absolutely nothing wrong,” said Kevin Martin, a patrol officer and vice president of the San Francisco Police Officers Association. “It’s sometimes easier to pay people off,” said Martin, a 23-year veteran officer. “But that certainly doesn’t make it any more palatable for the officer.” He speaks from experience — the city settled a civil rights suit against him in 1994. “A lot of officers do get frustrated,” Hoeper acknowledged. But her office has to balance the interests of the city as a whole, she said. “Once we have conversations with the officers, I think everyone understands and is on board,” she added. “But there’s a tension there.” Among the officers the city has gone to bat for is Alex Fagan Jr., who has been making headlines on and off since 2002, when he and two other off-duty officers were involved in a fight with two civilians. The publicity only increased with the brief but ultimately unsuccessful indictments of seven of the department’s higher-ups — including Fagan’s father, then assistant chief of police. The younger Fagan is now on trial for assault charges over the incident. Connolly is the lead defense lawyer for a civil lawsuit against police command staff in the wake of that fight, plus three unrelated civil suits against Fagan Jr. When one of those cases went to trial last summer, publicity surrounding the criminal case made it difficult to find jurors who hadn’t heard of Fagan Jr., Connolly said. “We could only get a jury that said they could put aside what they’d heard about [him].” The defendant’s notoriety wasn’t fatal, though. The city got a defense verdict. Eric Safire, who represented the plaintiff in that suit and has been litigating police cases against the city for 20 years, is critical of the way the city attorney’s office handles police cases. He accuses the office of joining an “unholy alliance” with the local police officers’ union. “Instead of disciplining the officers for any kind of malfeasance, they spend time, effort and money to point out that the victim is unworthy of compensation,” said Safire, a civil and criminal trial lawyer in San Francisco. Hoeper pointed out that administrative discipline is under the purview of the city’s Police Commission and Office of Citizen Complaints, which can launch investigations in response to civilian complaints. The city attorney’s job is to present an officer’s case to a neutral fact-finder, she added. “In every organization and profession, whether it’s police or lawyers or teachers or anything else, there are good apples and bad apples,” said Deputy City Attorney Wiener. “A lot of time with the politics surrounding police, they don’t get judged as individuals. They get tarred. And that’s unfortunate.”

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