(Photo: Courtesy of Michael Rafi)
After being sanctioned for spoliation and discovery abuse, Fulton County has paid $414,000 to settle claims from a shoplifting suspect who was injured when the police cruiser he was detained in crashed into a stolen car.
The litigation included disputes over whether the suspect was wearing a seat belt and the officer’s claim that he was struck by the fleeing car thief. The plaintiff claimed the Fulton County officer executed a U-turn to pursue the stolen car when he hit it.
There were also multiple wrangles over discovery and evidence, and the county was sanctioned once for spoliation and discovery abuse. A second sanctions motion against the defense was pending when the county agreed to settle, said plaintiffs attorney Michael Rafi.
Michael T. Rafi, Rafi Law Firm, Atlanta.
“He was arrested for shoplifting, and he should have been arrested,” said Rafi. “But that ride in the police car should have been the safest ride of his life.”
Rafi said at least a half-dozen county attorneys worked on the case, but that county Law Department supervising attorney Steven Rosenberg and staff attorney David Lowman were handling it prior to the settlement.
Fulton County Attorney Patrise Perkins-Hooker declined to comment.
According to Rafi and court filings, William “Will” Smith, now 30, was arrested shortly before midnight at a Walmart on Old National Highway for shoplifting a sandwich or other food item from the deli department.
Officers Nicholas Williams and Dwight Green handcuffed Smith and placed him the rear of Williams’ cruiser.
“Williams and Green both claimed, individually, that they seat-belted Will in the back of the car,” Rafi said.
At about that time, Rafi said, a call came in of a stolen car traveling down Old National Highway.
“Williams claims he didn’t know there was a stolen vehicle coming,” said Rafi, but recorded police radio chatter indicated that he had confirmed the car’s description and radioed in that he saw the vehicle 30 seconds before the crash.
“Twenty seconds later, the dispatcher asks what’s going on, and he never responds,” said Rafi. “The next message is ‘officer-involved crash.’”
“Fulton County said the stolen car just came out of nowhere and T-boned him,” Rafi said, “but Will said [Williams] just pulled a U-turn, they chased the car and crashed.”
“The evidence doesn’t even indicate a T-bone,” said Rafi, pointing to photos of the wrecked cruiser with damage to the right front section of the car.
Smith accrued about $133,000 in medical bills, Rafi said.
The driver of the stolen car ran from the scene and was never caught, he said.
The county received an ante litem notice a couple of months after the wreck, and in 2016 Rafi filed the lawsuit in Fulton County State Court.
The litigation took several turns, including the disqualification of a county staff attorney who had previously represented Smith as a public defender in Clayton County.
Rafi filed a motion for spoliation sanctions over the county’s salvage sale of the police cruiser and destruction of its data recorders and for discovery abuse after the county repeatedly failed to produce documents, photographs and other records.
Last February, State Court Chief Judge Diane Bessen granted the motion, writing there was “No question that [the county] was on notice that it had a duty to preserve the vehicle” and two data recorders, which would have provided information on the cruiser’s speed, steering and whether Smith was belted in.
Bessen did not strike the defense’s answer, as Rafi had asked, but ruled the county could not present “any evidence in its defense as to the speed of the vehicle, pre- and post-impact, if any seat belts were activated, whether or not brakes were applied, and similar information.”
She also said she would charge the jury “regarding the destruction of the evidence and a presumption that the evidence would be against the defendant.”
She was harsh in sanctioning the county on the discovery issue, writing that “the county’s continued dilatory conduct and resistance to turning over even the most obviously relevant information is appalling.”
“The defendant’s pattern has been to deny the existence of any responsive information, then, when faced with court intervention, to admit that it exists and promise to turn it over, but still delay over information even in the face of a court order compelling discovery,” she wrote.
“[A] discovery response that falsely denies the existence of discoverable information is not equivalent to no response; it is worse than no response,” Bessen wrote.
As a sanction, Bessen ruled she would award Smith his costs and attorney fees incurred while trying to obtain discoverable materials and ensure compliance with her orders.
Rafi said a court-ordered mediation failed.
In 2016, Rafi delivered a $300,000 settlement offer and another last fall for $400,000.
The parties struck a deal for $414,000 on Jan. 9, which represented the $400,000 offer plus $14,000. That was about the amount court was asked to grant for the sanctions penalty.
Rafi said the county seemed determined not to settle the case despite obvious liability and speculated that it was because Smith had a lengthy criminal record.
“This whole case came down to Fulton County saying, ‘We’re not going to pay this guy ’cause we think he’s a bad guy,’” he said. “Regardless of whether he’s a good guy or a bad guy, he got hurt, and it’s their fault.”
