Wave of lawsuits a growing worry for police

Brian Yates of Ladson claims he was wrongfully shocked three times with a Taser by a North Charleston police officer in 2008.

A North Charleston policeman should not have used a Taser three times on a motorist who was blasting music and must now face a civil trial for alleged constitutional violations, a federal appeals court has ruled.

To some observers, federal judges’ rebuke of this officer and others accused of civil rights violations around the South, along with sustained public scrutiny of police practices in the wake of officer-involved deaths nationwide, have made law enforcement a ripe environment for litigation.

The S.C. Insurance Reserve Fund, the state-run program that backs governments statewide, is paying out more in recent years to settle civil rights claims against the North Charleston police, according to data obtained through the S.C. Freedom of Information Act. The annual total for all claims in 2012 and 2013 was around $250,000. It rose to $400,000 in 2014 and hit $750,000 last year. None of that includes the $6.5 million that went to the family of Walter Scott, who was fatally shot by a city officer a year ago.

Meanwhile, the Fraternal Order of Police reported to Reuters recently that the group saw a 15 percent jump in members nationwide who bought civil liability insurance during a yearlong span that ended in July.

The Taser case in North Charleston is significant because the court used it to send another message that drew a hard line on officers’ use of stun guns.

The decision late last month by the 4th Circuit Court of Appeals means that Christopher Terry, now a detective for the North Charleston Police Department, is not entitled to immunity for shocking an Iraq War veteran during a 2008 traffic stop. It clears the way for Ladson resident Brian Yates’ lawsuit to continue in Charleston federal court.

Sandy Senn, who heads the West Ashley law firm defending Terry and other officers in local lawsuits, attributes the litigious times to various influences: judges appointed by President Barack Obama, the federal government’s new focus on civil rights prosecutions and potential jurors in the cases being exposed to the barrage of police criticism nationally.

Senn is a state Senate candidate in the Republican primary.

“We’re in crisis mode here,” she said, speaking generally about the phenomenon. “In this environment, with (the news media) printing something negative about police almost every day, it has ... a lot of lawyers wanting to sue.”

A lawyer in Senn’s firm, Robin Jackson, had asked a local judge to dismiss Terry from the suit, but the request for summary judgment was denied. The appeals ruling affirmed that denial, but it’s not a final determination finding the officer at fault. It simply gives the go-ahead for a trial that could come late this year, Yates’ attorney, Jason Luck, said.

The same court earlier this year decided that officers can use Tasers only when faced with an immediate safety risk, not just to stop a suspect from evading capture. A unanimous three-judge panel that decided Yates’ case cited the new rule and added that an officer’s use of a stun gun to de-escalate a situation can prove to have the opposite result.

“There was a commotion attributable to Terry’s excessive and unjustifiable use of force, which unnecessarily escalated tension,” the judges said.

The court said its review of the legal issue — whether Terry should get “qualified immunity” because he could not be expected to know that his actions were unconstitutional — required it to essentially adopt Yates’ version of the facts.

But the resulting published opinion against Terry is important because it establishes a precedent in the five-state region where the Virginia-based court has jurisdiction. The U.S. Supreme Court would have to take up the opinion on appeal for it to become law nationwide.

Yates’ suit has some of the hallmark components of the criticisms that have pestered North Charleston for years.

He was a National Guard first sergeant in the days after Christmas 2008, when he drove down U.S. Highway 78 in a customized 1972 Buick Skylark with big wheels and “Tonka,” the toy truck maker, emblazoned on the side. Music blaring from the car caught Terry’s ear. The officer said it was speeding, too.

That day, Terry was scheduled to work on a “saturation patrol,” he would say later in a deposition. The tactic that calls for constant traffic stops in high-crime areas has prompted complaints from the poor, mostly black people who live there. At the end of each shift, Terry would hand over a “stat sheet” that helped his supervisor gauge his productivity, he said.

Terry’s blue lights flashed behind Yates’ car, but Yates drove a ways down the road and changed lanes before pulling into a gas station. He didn’t have his driver’s license, so the officer had him get out. Much of what happened next is disputed.

The appeals decision contained Yates’ version: When Yates turned his head, the officer fired a Taser that crumpled him to the ground. Terry shot his Taser again “for no apparent reason” while Yates was down and again when Yates tried to slide his cellphone to his brother, who had pulled up in another car. Yates wanted his brother to call a police supervisor.

The officer’s account appeared in his attorneys’ written arguments: Yates wasn’t following directions and kept jerking away. Terry feared he would try to get into the car and grab a weapon. The officer used the Taser “to gain compliance,” and only after a third shock did Yates put his hands behind his back.

In his deposition, Terry said he used the Taser “to keep (Yates) from escalating any further” on a scale of aggression that officers consult when deciding whether to use force. “In other words, he reaches a level, I have to stay a level above him,” he said, according to a transcript. “I have to be in charge of that traffic stop at all times.”

Yates sued the officer, the police, their chief and the city. Claims against everyone but Terry were later dismissed. In asking for Terry also to be dropped, the officer’s attorneys argued that he acted reasonably.

The appeals court disagreed. The judges cited their own court’s opinion in January that said officers in the Village of Pinehurst, N.C., unconstitutionally used Tasers against a man clinging to a post simply because he wanted to avoid jail — a ruling that prompted South Carolina police agencies to adjust their stun gun policies. The court gave immunity to those officers, though, because they couldn’t have been expected to know that their actions were wrong.

Not so for Terry, the judges said, adding that the officer violated Yates’ Fourth Amendment right to be free from excessive force.

“No reasonable officer would have believed that Terry’s use of the Taser was justifiable at all and certainly not on three occasions,” they wrote.

Local judges have weighed in on police uses of force, too.

Charleston-based U.S. District Judge Richard Gergel last month said officers should find a teachable moment in the 2013 death of Darryl Drayton, who had thrown a knife before deputies shot him on James Island. Gergel approved a $900,000 settlement for Drayton’s family.

It’s difficult to nail down the broader implications of such courtroom outcomes, said Seth Stoughton, a University of South Carolina law professor. More data is needed to study that effect, he said.

“It’s possible that police agencies are more vulnerable to civil liability than they historically have been,” he said, “but we don’t really know yet.”

But Senn, the lawyer who often defends the police from civil rights accusations, said she has seen how strong words in courtrooms and in the public can make some officers uneasy.

Raising the limits for insurance payouts on liability claims would help ease officers’ minds and bolster defense attorneys’ bargaining position, she said. Right now, state law caps insurance payouts at $1 million. Not having an option of higher coverage, North Charleston was saddled with most of the $6.5 million settlement in Scott’s death.

Without more backing, some officers targeted in suits worry about losing their homes for doing something they thought was necessary, Senn said. Cases that once would have been tossed out by judges or settled early on also are now surviving through trial, she said, and in some cases bringing “astronomical” verdicts.

“A jury will most likely do the right thing,” she said. “But all this negative publicity is rubbing off on the officers, making juries think all officers are bad. It’s just not fair.”

Charleston County Sheriff Al Cannon is struggling to find new recruits, a problem his agency has never had, he said. Apprehension of court liability, he said, might be playing a role. Officers everywhere, he added, also are concerned over whether their agencies will stand behind them if they’re embroiled in controversy.

“The number of things that police officers feel they have to put up with is maybe larger than it would have been a few years ago,” he said. “The extent to which a police officer feels supported ... grows out of the current situations across the country.”

Reach Andrew Knapp at 843-937-5414 or twitter.com/offlede.