Handling of 911 call prompts questions Should deputies have been told about gun? (copy) (copy)

In May 2015, Charleston County Sheriff Al Cannon listens to an audio interview of Bryant Heyward after Heyward was shot by a sheriff’s deputy. Cannon released the recording publicly shortly after the shooting. File/Staff

High-profile shootings in the past five years have sparked a national conversation on what happens when police cross the line and what the public deserves as compensation. In South Carolina, that attitude shift has translated to more lawsuits against law enforcement resulting in settlements, a Post and Courier analysis of claims data found.

But, according to legal experts and law enforcement officials, police rarely review their practices or policies based on such complaints, and the officers involved often don't know how a lawsuit against them is being handled. Claims filed against law enforcement agencies typically go straight to county or city legal teams, then to the state insurance company.

Most city and county agencies contacted by the newspaper in the Lowcountry said they don't have systems to track legal claims against them, which are handled by attorneys. The highest priority is saving the city or county money that could be lost in an expensive court case.

It's the insurance representatives who are deciding when to settle and for how much. The Post and Courier's review of that insurance data, from the Insurance Reserve Fund, reveals that in the past five fiscal years, it's become 50 percent more likely for lawsuits against police to result in a payout.

The Insurance Reserve Fund is a state-run insurance company that cities, counties and state agencies can buy insurance from, creating a pool of premiums the IRF can use to pay claims and legal fees. Since the Restructuring Act of 2014, it's been a subdivision of the State Fiscal Accountability Authority. Previously, it was under the State Budget and Control Board, which the act abolished.

Despite repeated requests, the IRF would not answer questions about its operation or claims data. However, a spokesman shared that at a Dec. 10 meeting, the SFAA voted to increase law enforcement insurance rates effective July 1, 2020. For state entities, like the State Law Enforcement Division, rates will increase by 252 percent for all employees classified as law enforcement. For non-state entities, such as police departments and sheriff's offices, rates will increase by 50 percent. 

SLED estimates the rate increase will add more than $450,000 to their existing premium costs. That wasn't budgeted for the upcoming fiscal year, and they're unsure of how they'll cover the addition, a spokesman said. The SFAA told clients in a memorandum that because losses have risen, the rate adjustments were a necessary step.

Losses for all SC agencies jumped 55 percent from 2015 to 2019, the newspaper's analysis found. The SFAA had no comment.

The IRF paid more than $482 million in that period for claims against state and county agencies, covering claims ranging from potholes to shootings. Eleven percent of those payouts involved law enforcement. About 28 percent of the IRF's legal costs, which totaled around $129 million, went toward defending against those suits.

The growing success of claims against law enforcement is part of what Susan Dunn calls "the Walter Scott reality." After a white North Charleston officer shot an unarmed black man, ending with millions paid to his family, the attitude around legal action changed, Dunn said. As legal director and interim executive director of the American Civil Liberties Union of South Carolina, she's seen a shift in how people approach perceived misconduct by police.

"(Before), there was a sense that there's nothing you can do about it, so why complain? But the transparency of that situation made people want to use the system," Dunn said.

Settlements are climbing

In 2015, only 30 percent of law enforcement-related claims ended in payouts. In 2019, 45 percent of claims did. That's a 50 percent increase and 15 percentage points.

“A 15 (percentage point) increase in payouts over the course of five years is certainly concerning," said Jarrod Bruder, executive director of the South Carolina Sheriffs' Association. He doesn't think that equates with an increase in wrongdoing by agencies or officers.

Bruder said, in many cases, IRF representatives make a decision to settle rather than extensively litigate to save money in the long run. "This policy can be extremely frustrating for sheriffs, especially when the law is clearly in their favor and (they) believe their deputies have acted lawfully and appropriately," he said.

"There tends to be a wall between officers and litigation," said Seth Stoughton, a University of South Carolina professor of criminal law and a former policeman. "Sometimes that wall is thicker than it should be."

Even when claims mention specific officers, those officers are often told, "Look, don't worry about it," by their superiors, Stoughton said. It's rare for departments to find their officers in the wrong because of a lawsuit even if a jury verdict reaches that conclusion, he said. Attorneys hired by the IRF take responsibility for the case and decide the best use of the state's time and money.

The higher a settlement, the more likely that attorneys are worried about losing the case in court. The increased interest in police accountability over the past few years has skewed the courts in plaintiffs' favor, Stoughton said. 

There's been a longstanding trend for law enforcement agencies to think of lawsuits as just the "cost of doing business," he said. Even if payouts are becoming more likely and more people are using the system to address grievances, police often don't track the lawsuits against them. Without that data, it's unlikely they'll be able to form any meaningful review of misconduct those lawsuits allege.

In these cases, it's the Insurance Reserve Fund making the decisions. Susan Herdina, an attorney with the city of Charleston's legal department, said they immediately forward legal claims against law enforcement to the IRF once they receive them. The IRF appoints an attorney to handle the case, and the city is the IRF's client.

That attorney meets with in-house counsel, the police chief and officers involved, Herdina said. When the time comes to settle or go to trial, "at the end of the day, that is the IRF's decision," she said.

Although settlements are becoming more common, plaintiffs' attorneys have some frustrations with the IRF's handling of cases. Justin Bamberg, a state representative who was the attorney for Walter Scott's family, said the IRF is relatively unchecked in South Carolina compared with other insurance agencies. Without much accountability, he said, the IRF can make it difficult for his clients to get the money their cases are worth.

"When there's no one holding you accountable for being unreasonable, then there's no reason to be reasonable," Bamberg, D-Bamberg, said. He described long fights to get the IRF to pay his client's claims, often leading to a stalemate — if he and his client wanted compensation above the IRF's $1 million cap for civil rights claims, they'd have to sue individual employees, who are left to "hang out to dry" by the IRF if they're sued, he said.

Bamberg thinks the Scott case was "eye-opening" for a lot of people, changing the perception that law enforcement was beyond question. That national attitude shift hasn't changed the IRF's mission of saving its clients money, he said.  

The biggest claims

The Charleston area racked up some of the highest payouts in the state, but spokespeople for most of the local agencies involved in these claims said those lawsuits have little effect on how they run their departments. It's just something the attorneys handle for them.

With a wall between law enforcement and litigation, officials may know little about the alleged misconduct of officers being addressed in lawsuits. That doesn't stop the money piling up from settlements and legal fees. 

The numbers below reflect only data reported by the Insurance Reserve Fund, and if payouts ballooned higher than the IRF's caps, taxpayer dollars typically made up the difference.

From 2015 to 2019, payouts for law enforcement claims in North Charleston totaled about $5.6 million, according to a Post and Courier analysis of IRF records. The city had more than 85 claims involving law enforcement in that period, including Walter Scott's case. But if the North Charleston Police Department is involved in a claim, it doesn't cross their desk. It just goes straight to the city's legal team, spokeswoman Karley Ash said.

The department doesn't investigate grievances brought up in lawsuits unless an Internal Affairs complaint is also filed, and otherwise, they have no involvement with how the claims are handled, she said.

Charleston County handled more than 100 claims involving law enforcement, leading to almost $4 million in payouts for those years. Roger Antonio, spokesman for the Charleston County Sheriff's Office, said the agency doesn't track claims involving the department, but has investigated some of them during standard review processes.

In a recent settlement, the IRF paid $750,000 to Bryant Heyward, who was left paralyzed in 2015 after he was shot by Charleston County deputies who mistook him for the burglar he had dialed 911 to report. Heyward initially asked for $25 million, the estimated cost of medical treatment for the rest of his life. The S.C. Attorney General's Office determined the deputy "acted appropriately" before the settlement occurred.

In 2013, a Charleston County deputy shot a Texas man, Ricky Jennings, twice after he ran from a traffic stop and a struggle ensued. The IRF paid Jennings $600,000 in 2017 for his claim regarding the incident. SLED investigators cleared the deputy of all wrongdoing years before that payment took place.

The disconnect between litigation and law enforcement is a national problem, according to research done by UCLA law professor Joanna Schwartz. She found that some of the largest law enforcement agencies in the country typically ignore lawsuits against them. When agencies do have a system set up to track and analyze legal claims, they were usually forced to adopt it as conditions of settlements for high-profile misconduct, Schwartz determined.

The city of Charleston was involved in more than 50 law enforcement-related claims, resulting in almost $2 million worth of payouts. Unlike other departments, the city's police department does have a system to track legal claims, spokesman Charles Francis said. The department has two full-time attorneys assigned by the city to assist with policies, training and risk management, and officials meet weekly to discuss such issues. They regularly investigate allegations of misconduct brought up in lawsuits, Francis said.

Berkeley County, while only involved in around 45 law enforcement-related claims since 2015, needed the Insurance Reserve Fund to pay out more than $3.7 million for some of those claims. In one case, the IRF paid out more than $1 million after the death of Berkeley County inmate David Allan Woods. He died in 2010 due to gastrointestinal bleeding his jailers were negligent in treating, the lawsuit alleged.

Chief Deputy Jeremy Baker said the Sheriff's Office doesn't track these claims, though its has investigated some of them internally. More often, they're the last to know what's happening with a claim.

"There's many times we find out from the news when the settlement's reached," Baker said.

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Reach Fleming Smith at 843-937-5591. Follow her on Twitter at @MFlemingSmith.

Fleming Smith covers breaking news for the Charleston area. A native Georgian, she previously covered breaking news and features for The Wall Street Journal and The Atlanta Journal-Constitution.