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With Big Bucks at Risk, a Calif. City Supports Its Cops

A drunken woman is arrested during a sidewalk melee. Sobered up, she claims the cops broke her ribs, committed assault and battery on her, and violated her civil rights by using excessive force. She sues for $1,000,000.

Over time, her lawyer offers to settle for $75,000. An attorney defending the cops guesses that $35,000 — chickenfeed in the high-stakes world of police litigation –would make the suit go away. In many jurisdictions, the case of Shepherd v. Crawford et al. would have been settled –and fast.

But in this case, an assistant city attorney said, “No, we’ll let the matter be decided on its merits.” Maybe a trial will send the message that the municipal treasury is not an ATM machine.

With today’s juries seemingly becoming more fantastical by the moment, it was a gutsy call.

Shepherd is a middle-aged California mother who decided that in keeping with a family tradition her youngest son’s 21st birthday should be celebrated with a night of drinking and carousing. On a Friday evening two years ago last January, she was part of a moveable party that headed for the so-called “entertainment” district in downtown Modesto, an area notorious to the police for its profusion of bars and brawls.

At the time she filed suit, Shepherd claimed that she imbibed only moderately that night. No blood or breath tests were taken when she was arrested. But witnesses — and eventually Shepherd herself, during cross-examination at trial — painted a profoundly different picture, according to Kimberly Colwell, an Oakland attorney with the firm Meyers, Nave, Riback, Silver & Wilson, who represented the defendant officers.

Testimony indicated there was drinking at the Shepherd home, more drinking during the limo ride downtown, still more drinking at a filling station en route, and a “phenomenal” amount of drinking from bar to bar as the merriment of family and friends escalated. Shepherd allegedly favored “tall” White Russians, while others in her party chugged down volatile mixtures of Guinness, Red Bull, whiskey, and so-called Jeager Bombs and Irish Car Bombs.

As Friday night became Saturday morning — at about one o’clock — a bouncer at a joint called the Copper Rhino Saloon decided the Shepherd party had to go. His effort to expel them touched off a free-for-all that spilled out onto the sidewalk.

According to Colwell’s summary of events, the bouncer at one point had Shepherd’s newly adult son “in a bear hug.” Shepherd claimed later that with motherly concern, she tapped him on the shoulder and asked, “What are you doing with my son?” Arriving police officers, on the other hand, testified that they found her “on his back with her arm around his throat” in what looked like a carotid chokehold. By then there were maybe 50 people on the sidewalk and street, including officers mounted on horses and innocent Rhino patrons trying to flee the explosive scene. “Sheer chaos!” Colwell exclaims.

Sgt. Garret Crawford worked his way to Shepherd and yelled in her ear, “Let go! Modesto police! Let go!” Even after he repeated the order, she didn’t comply.

“He took her by the shoulder, grabbed her bicep and pulled her back,” Colwell says. “Apparently the momentum of this yank combined with her flailing and her drunkenness caused her to fall on top of another person in the crowd, landing on her back.”

With the help of Officer Douglas Griepp, Crawford turned Shepherd onto her stomach. She was handcuffed behind her back and transported to jail, where she spent the rest of the night.

Just when and how she was injured remains unknown, Colwell says. A nurse’s intake form — which Shepherd signed at the jail — indicates no complaints of rib pain or difficulty breathing. But after her release, a visit to her doctor revealed fractures of four ribs. Shepherd claimed this damage was caused by police knee-dropping onto her, a charge that was vehemently denied.

Her federal 1983 civil rights suit followed, asking a million bucks in recompense and raising the specter of punitive damages as well, for which any officers found liable would be personally responsible.

Initially, the city of Modesto and every officer who could be identified at the scene were named as defendants. As the case progressed through the US District Court for the eastern district of California, Colwell and her associate Kevin Gilbert successfully got defendants scratched until only two remained: Crawford and Greipp.

In California, as in most jurisdictions, municipalities are obligated to pay any judgments against their officers except punitive damages. In civil rights cases, a prevailing plaintiff is entitled to recover attorneys’ fees, too, which in this case might have run as high as $250,000, Colwell estimates. So settling the case was a tempting option from a purely economic standpoint, especially since Modesto is self-insured.

However, Jim Wilson, the senior deputy city attorney into whose lap this decision fell, is a former police officer — in Colwell’s words. “a tough guy who gets it.” While some cases are appropriate to settle, he was convinced this was not one of them.

A thorough investigation persuaded him that the officers had used no excessive force, and he understood that even when things are done right, people can still get injured. He accepted Crawford’s and Griepp’s assertion that they had not gone to their knees on Shepherd’s back or anywhere else, because they were struggling with her very close to where the mounted officers were trying to break up the crowd and they feared if they physically lowered themselves they could be trampled by horses.

The city was not interested in settling, Wilson declared. Colwell explains, “The city wanted to send a message to its officers: ‘We believe in you.’ And it wanted to send a message to the plaintiffs’ bar as well: justified police action will be defended.”

The play for principle paid off. After a week-long trial and just a few hours’ deliberation, an eight-member jury — all women — unanimously ruled recently in the officers’ favor. They were absolved of any liability; amount owed to Shepherd: zip. Now, Colwell says, the city will attempt to recover costs from the plaintiff.

“We talked with the jurors after the verdict,” she says, “and we told them, ‘If you have any criticism of the officers in any way, we’ll bring them in now and you can discuss things with them.’ It’s important to know what jurors are thinking beyond their verdict alone. But they said, ‘No, we understand that police officers have a hard job. They did their best in dealing with drunken people’.”

From the department’s support to the officers’ performance on the stand, Colwell says the Shepherd case went much better than many she tries. Given her years of experience representing cops and their employers, PoliceOne asked her what guidance she might offer in general to help law enforcement fare better in civil litigation. Her suggestions:

1. Make sure policies are updated regularly. “A lot of times, updating falls through the cracks,” she says. “The worst thing is to have a chief testify that his department’s policies are current, and then the documents themselves have dates that are years old.

“Laws change, standards change. All policies should be carefully reviewed and updated on an annual basis. And they should be compiled in a neat format, not with a crazy-quilt of different fonts and type sizes and dates, like something that’s just thrown together indifferently. Simple things like that can make a huge difference when it comes to jurors’ perception.

“If you have good, current policies it’s good protection and officers don’t have to spend time in their testimony addressing policy flaws. You’ll save a lot of money in the long run.”

2. Take time writing your reports. “Every officer I’ve ever represented in a federal trial has said, ‘I’m never going to write a report the same way again.’ Get all the salient details down and re-read it to be sure it’s thorough before signing off and having it reviewed by a supervisor.

“Lawsuits are not always about shootings or other huge events. They’re often about ‘routine’ incidents you forget about as soon as they’re over. Months or years later you may find yourself in court with lawyers spending weeks putting everything you wrote under a microscope. A good report should accurately refresh your recollection, even with the passage of time.

“If your report has mistakes or omissions, it doesn’t help.” Colwell says she’s currently involved in a trial in which an issue is being made over an officer’s report that described a suspect having “his hands visible at his face,” when, in fact, only one hand was visible. “Small things make a difference.”

She advises, “Write your report very close to the time of the incident. That gives the story credibility that you wrote it when details were still fresh in your mind. If you remember more later, do a supplement.

“Explain what you did and why. If you drew your gun or Taser but didn’t use it, include that to show that you’re not trying to hide anything.”

3. Tend to evidence. “Police departments are usually fabulous at collecting and preserving evidence for criminal prosecutions, but they sometimes fall down with evidence that’s important in civil litigation.”

She speaks of cases in which dispatch tapes have gotten destroyed or lost, even one instance in which a gun involved in a shooting was sold by the department and then later needed in defending a lawsuit.

“There needs to be clear communication within the agency to automatically retain and maintain evidence for possible civil litigation, and all evidence should be stored with a clear chain of custody. When critical evidence goes missing, it tends to look like a cover-up.”

Colwell adds that it may seem harsh to criticize police for what appear to be trivial issues. But, as the Shepherd suit shows, even an ordinary barroom brawl may to your surprise end up being a date for you in federal court.

Go here to read the full article on PoliceOne.com

by Charles Remsberg
September 2, 2009