You cannot make this shit up - Two football officials arrested.

[crazy canuck]

So BB, let me get this straight, if one or both of these refs walked into your office your legal advice to them would be "don't sue because some out of control cop who was hired as a security guard is part of an old boys football network and people like him will think less of you for pursuing your legal rights"

[dps]

Grumbles fairly points out the refs don't work for the team.  Fair point.  Donation still gets made, and these refs get promised a nice tryout next season for some low-ranking college games in return for not suing.

What on earth makes you think that the local city government has any authority whatsoever over who gets to officiate NCAA Div III or NAIA games?

[Barrister]

So BB, let me get this straight, if one or both of these refs walked into your office your legal advice to them would be "don't sue because some out of control cop who was hired as a security guard is part of an old boys football network and people like him will think less of you for pursuing your legal rights"

No, what I expect is either the ref never comes to my office, or if he does I get a nice phone call from another lawyer inquiring what steps can be taken to make sure this doesn't end up in court.

[grumbler]

He's a lieutenant in a small town police force.  In that context, sure he is.

Maybe Louisiana is more like Canada than small-town Virginia and thus you are more knowledgeable about the Old Boy Network there than I, but I am not sure of any of the things you are sure of.  For instance, in Virginia, the length of time one lived here, not the police rank one has achieved, would determine whether or not you were an Old Boy.

If this incident happened in small-town Virginia, the city would already be negotiating with the victims, looking for a settlement to head off a lawsuit.  The PBA wouldn't be involved. 

[The Brain]

It is unclear to me why the guys should say no to that much money. Seems someone has been watching too much Mississippi Burning and similar.

[crazy canuck]

If this incident happened in small-town Virginia, the city would already be negotiating with the victims, looking for a settlement to head off a lawsuit.  The PBA wouldn't be involved.

That is exactly what would be happening in small town BC.  BB spent his formative years in Manitoba and so much of what he says about societal norms must be assessed with that in mind.

[stjaba]

If this incident happened in small-town Virginia, the city would already be negotiating with the victims, looking for a settlement to head off a lawsuit.  The PBA wouldn't be involved.

Any town (or company) that employs the preemptive negotiation strategy you describe is going to lose a lot of money. I've never heard of it.

I can tell you from personal experience that it is common for companies and cities to investigate accidents, mishaps, etc. that create a potential for liability, but I've never heard of companies or towns preemptively offer to settle a lawsuit in the absence of even a demand. I'm not saying that it doesn't happen, but it is an odd concept to me. If that would ever happen, I think that would happen only in the most unusual of circumstances (i.e. a catastrophic injury with clear liability) or perhaps in situations involving insurance coverage.

[DGuller]

There is such a concept in Homeowners insurance.  If someone gets injured on your property, the homeowner's policy has a coverage that pays a relatively modest amount for medical bills to the injured party.  No deductible is applied, and that claim is not counted against the homeowner in any way.  The idea is that paying a little money with no hassle now is worth potentially preventing an expensive liability claim in the future.

[grumbler]

Any town (or company) that employs the preemptive negotiation strategy you describe is going to lose a lot of money. I've never heard of it.

I can tell you from personal experience that it is common for companies and cities to investigate accidents, mishaps, etc. that create a potential for liability, but I've never heard of companies or towns preemptively offer to settle a lawsuit in the absence of even a demand. I'm not saying that it doesn't happen, but it is an odd concept to me. If that would ever happen, I think that would happen only in the most unusual of circumstances (i.e. a catastrophic injury with clear liability) or perhaps in situations involving insurance coverage.

I didn't have the advantage of your personal experience that these particular two guys didn't resent spending the night in jail and are not seeking compensation.  Given what you have revealed, I agree that the city would be foolish to give away money to people who don't want it.

In Virginia, however, i suspect that these guys would not be happy to have spent a night in jail because a cop grossly exceeded his authority, and they would be demanding compensation, and the towns would be looking to head off a lawsuit that they would most certainly lose.

[stjaba]

I didn't have the advantage of your personal experience that these particular two guys didn't resent spending the night in jail and are not seeking compensation.  Given what you have revealed, I agree that the city would be foolish to give away money to people who don't want it.

In Virginia, however, i suspect that these guys would not be happy to have spent a night in jail because a cop grossly exceeded his authority, and they would be demanding compensation, and the towns would be looking to head off a lawsuit that they would most certainly lose.

Actually you are completely wrong. In Virginia, municipalities are not liable for the intentional torts (i.e. false arrest) committed by its employees under sovereign immunity. http://scholar.google.com/scholar_case?case=2193881014227563961&q=640+F.Supp.2d+688&hl=en&as_sdt=40006

That's basically true under federal law also. So, if this happened in Richmond, the city would be off the hook. Practically speaking, the town might pay for the officer's defense and settle the suit on his behalf, but that is no guarantee.

In any event, the concept of making a settlement offer in the absence of a demand is bizarre to me. It is especially odd to me in the context of police misconduct litigation, where the law is heavily slanted in favor of defendants.

And even assuming the officials made a demand, the more common strategy would be to wait until a lawsuit is filed first and go from there. There are so many hurdles a plaintiff has to overcome in police misconduct litigation that it would be foolhardy to do it any other way in most cases.

There is such a concept in Homeowners insurance.  If someone gets injured on your property, the homeowner's policy has a coverage that pays a relatively modest amount for medical bills to the injured party.  No deductible is applied, and that claim is not counted against the homeowner in any way.

I believe this is called "Medpay." It is not uncommon to find that in all sorts of insurance coverage from what I understand. Basically the insurer will pay medical bills for claimants. The limits on these policies are like $5,000. I believe that Medpay coverage is generally separate from liability insurance. I have heard of coverage disputes where medpay pays medical bills, but an insurer denies coverage to an insured.

[Habbaku]

It happens to the best of us. 

[grumbler]

Actually you are completely wrong. In Virginia, municipalities are not liable for the intentional torts (i.e. false arrest) committed by its employees under sovereign immunity. http://scholar.google.com/scholar_case?case=2193881014227563961&q=640+F.Supp.2d+688&hl=en&as_sdt=40006

Actually, you need to read your sources.  Your cite doesn't say what you claim it does.  What it says is that

Where there is no evidence that the municipal agent "is responsible for any alleged constitutional violation ... or that [a plaintiff] suffered any injury as the result of the execution of any governmental policy or custom," dismissal is proper.

The city is liable if the policies or customs of the police department allowed the behavior of this lieutenant.  We don't know if that is the case here.

In any event, the concept of making a settlement offer in the absence of a demand is bizarre to me. It is especially odd to me in the context of police misconduct litigation, where the law is heavily slanted in favor of defendants.

I didn't have your personal knowledge that there was no demand.  If there is no demand, then there would be no settlement.

And even assuming the officials made a demand, the more common strategy would be to wait until a lawsuit is filed first and go from there. There are so many hurdles a plaintiff has to overcome in police misconduct litigation that it would be foolhardy to do it any other way in most cases.

While this might be true in general, this was not a typical police misconduct case.  It happened in front of a large crowd, and the officer involved hadn't the faintest fig leaf of an excuse for the arrest and jailing of the football officials.  The press excoriations and costs of mounting an obviously doomed defense would seem to mitigate in favor of heading lawsuits off at the pass.  If your personal knowledge that these officials were not demanding any compensation were not so persuasive, a bystander might be excused for thinking that the city and the lieutenant would want to avoid this kind of bad press.

[stjaba]

Actually, you need to read your sources.  Your cite doesn't say what you claim it does.  What it says is that

Where there is no evidence that the municipal agent "is responsible for any alleged constitutional violation ... or that [a plaintiff] suffered any injury as the result of the execution of any governmental policy or custom," dismissal is proper.

The city is liable if the policies or customs of the police department allowed the behavior of this lieutenant.  We don't know if that is the case here.

In police misconduct litigation there is a big distinction between individual liability (i.e. the individual officer) and municipal liability under federal law.

To show that that an individual officer is liable, not only does a plaintiff have to show that there was a constitutional violation, but also that the law violated by the defendant officer was "clearly established." This is known as qualified immunity. To pierce qualified immunity, the plaintiff normally has to find a prior, binding case with similar facts as his case. That can be difficult, which is one of the big hurdles in police misconduct litigation.

With respect to municipal liability, like the case says, a city can be liable if it has an unconstitutional custom or policy. However that is very difficult to show, and the facts unlikely support that. If Covington's official policy was that officers could arrest without probable cause, that would constitute an unconstitutional policy. However, if Covington is like most cities, its SOP state that officers may only arrest with probable cause. And case law is clear that normally one unconstitutional incident is insufficient to an unconstitutional policy.

A municipality can also be liable if it has an unofficial custom of permitting constitutional violations. Again, that is hard to prove. The plaintiffs would have to show a string of similar incidents to win on that. A few random or isolated similar incidents would be insufficient.

As hard as it is to win a case against an individual officer, it is probably 10 times harder to win against a municipality. It is well recognized among lawyers who routinely defend officers and municipalities that the playing field is heavily balanced in their favor. For instance, a speaker at a recent police misconduct litigation conference commented that "if you aren't winning 95% of your cases, you should probably move to a different field." While there is a hint of exaggeration to that, it's basically true.

Since there are no facts on the ground which support municipal liability under federal law, coupled with the fact it is extraordinarily difficult to prove municipal liability, I am comfortable saying that it is highly unlikely that Covington itself would be found liable. 

I didn't have your personal knowledge that there was no demand.  If there is no demand, then there would be no settlement.

You "made up"  or assumed the demand. I have no personal knowledge one way or another.  But even assuming a demand, I doubt most people would settle without any kind of fight.

While this might be true in general, this was not a typical police misconduct case.  It happened in front of a large crowd, and the officer involved hadn't the faintest fig leaf of an excuse for the arrest and jailing of the football officials.  The press excoriations and costs of mounting an obviously doomed defense would seem to mitigate in favor of heading lawsuits off at the pass.  If your personal knowledge that these officials were not demanding any compensation were not so persuasive, a bystander might be excused for thinking that the city and the lieutenant would want to avoid this kind of bad press.

I have no personal knowledge regarding the facts of this case. It is your assumption that a demand has been made. I do have personal knowledge regarding how cities and companies respond to accidents, mishaps, and civil rights violations.

Second, the officer is possibly protected by qualified immunity, so he would have a defense to a lawsuit, unlike what you claim.   

Third, while pre-suit settlement occurs on a regular basis, it is unusual in the context of police misconduct litigation, even in "egregious" cases. This is because of the uneven playing field between plaintiffs and defendants. If a town employs the early and easy settlement strategy, it is just setting itself up for more lawsuits. The fact that a town settles frequently  could even be used as evidence of an unconstitutional custom that would be helpful for future litigants, so for that reason alone I doubt a city would normally do what you suggest.

[crazy canuck]

If this incident happened in small-town Virginia, the city would already be negotiating with the victims, looking for a settlement to head off a lawsuit.  The PBA wouldn't be involved.

Any town (or company) that employs the preemptive negotiation strategy you describe is going to lose a lot of money. I've never heard of it.

I can tell you from personal experience that it is common for companies and cities to investigate accidents, mishaps, etc. that create a potential for liability, but I've never heard of companies or towns preemptively offer to settle a lawsuit in the absence of even a demand.

Then I suspect your personal experience does not include situations in which the investigation discloses that liability is a certainty and therefore the best course of action is to offer something to make the matter go away with a minimum of cost - both in terms of the money paid and the amount of legal fees incurred.  In circumstances where liability is certain it is highly likely that waiting for formal court proceedings to be commenced will increase the cost of settlement.  There is a reason why insurance companies try to get people to sign off on their claims early on in the process

Even in cases where liability is not a certainty it can still make a lot of sense to act proactively to deal with prospective claimants.  Those circumstances vary from case to case.

However, if your client doesnt want to act proactively I suppose that is a strategy that could be followed.  Not an entirely wise strategy in every case but better for your billings. 

[crazy canuck]

Third, while pre-suit settlement occurs on a regular basis, it is unusual in the context of police misconduct litigation, even in "egregious" cases. This is because of the uneven playing field between plaintiffs and defendants. If a town employs the early and easy settlement strategy, it is just setting itself up for more lawsuits. The fact that a town settles frequently  could even be used as evidence of an unconstitutional custom that would be helpful for future litigants, so for that reason alone I doubt a city would normally do what you suggest.

This isnt exactly the run of the mill police misconduct case is it?