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The New Chutzpah

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from the magazine

The New Chutzpah

Criminals Sue the City Winter 1994

For New York’s latest millionaire, all it took was a deserted subway
station and a dream.

Bernard McCummings, recently back after serving two years for robbery,
could not have been expecting to be showered with great wealth when he and
two friends paid a visit to the West 96th Street IND station one summer
evening in 1984. All they were looking for was an easy mark. They found one
in Jerome Sandusky, an elderly real estate executive. One of the team served
as lookout, while another held Sandusky down. (“I choked him and told him not
to scream. He started to scream and I choked him harder.”) Meanwhile,
23-year-old McCummings went through the pockets of his 71-year-old victim.

That, of course, wasn’t where he found his $4.8 million jackpot; subway
riders don’t carry that kind of money. No, the young tycoon-to-be carried his
fortune in a considerably more abstract form—his legal rights. Those rights
were activated, at taxpayer and straphanger expense, when a couple of
plainclothes transit cops arrived on the scene and McCummings was shot in the
back trying to flee. After pleading guilty to the mugging and heading back
upstate to serve 32 months, he sued the Transit Authority and won a
multimillion-dollar jury award.

When the New York Court of Appeals, the state’s highest court, upheld the
verdict in the spring of 1993 and McCummings got his check, there was a
certain amount of public outrage, followed by a chorus of don’t-blame-mes
from every quarter of the legal system-starting with the jury. “We had no
other choice,” said foreman Peter Robbins. Another juror said her colleagues
knew the plaintiff was a no-good, but they “had to put that aside”: once they
agreed the shooting was unjustified, “we had to give him an award under the
law.”

Did they really?

“Excessive force” lawsuits have been much easier for plaintiffs to file
since the U.S. Supreme Court’s 1985 decision in Tennessee v. Garner.
In that case, an unarmed 15-year-old had broken into an unoccupied house and
taken a ring, a purse, and some money, then was shot while trying to flee.
Although Tennessee law immunized police across the board when they shot
fleeing felons, the Court declared that the Constitution does not allow
immunity to be handed out that broadly: not all felons pose enough of a
threat to others to justify deadly force.

It’s a big leap, a yawning chasm really, from the Garner situation to the
McCummings case. Robbing a live person is universally recognized as a much
more violent crime than breaking into a house when the occupants are away. “If
the officers hadn’t been there,” said Transit Authority lawyer Lawrence
Heisler, “there’s a fair chance Sandusky may have been strangled.”

But the Tennessee v. Garner decision was worded in vague
terms that left it highly uncertain just which fleeing suspects the police
should consider themselves entitled to shoot in the future. The trial judge
in the McCummings case instructed the jury that under prevailing law the TA
could be held liable for shooting a fleeing felon who “poses no immediate
threat of serious physical injury or harm to an officer or others.” But
Sandusky had in fact been badly roughed up. Wasn’t that evidence enough of
McCummings’s dangerous disposition? No, said the Court of Appeals over two
dissents, because the transit officer couldn’t prove he knew Sandusky
had been hurt at the time he fired the shots. In the future, it seems,
officers may want to hold off on shooting fleeing muggers until the medical
reports come back, confirming that the victims have indeed been hurt.

Question two: did the jury really have to give $4,342,142.55 (plus a
half-million dollars interest) to a man who had never been gainfully
employed?

The ex-mugger is not lying on his back amid a nest of tubes, being dabbed
at by nurses around the clock. Suitably cleaned up, he now converses with
reporters in his lawyer’s office, albeit from a wheelchair. McCummings has “learned
to say all the appropriate things,” remarks Newsday subway columnist
Ellis Henican with refreshing acidity. Such as: “I paid by going to
prison.... I was young then.... What I did wasn’t the right thing to do, but
I didn’t deserve to get shot.” He is said to be paralyzed from the waist
down, which is bad news—but any number of ordinary citizens cope with equally
severe medical problems with no special help whatever.

“McCummings will not lead a life of luxury,” explained the jury foreman, “because
of the medical expenses he will incur over his lifetime.” One doesn’t know
whether to laugh or cry. The fact is that plaintiffs’ lawyers making such
claims take advantage of what you might call an honor system on stilts. First
they submit their own accounting of projected expenses. There is no apparent
penalty for exaggerating this sum as wildly as they care to; McCummings’s
lawyer asked for $18 million in total damages, enough to buy a fair-sized
hospital. The defense then denies the need for all or most of the bill, and
the jury picks some number between zero and infinity. Once the money is in
hand, the successful plaintiffs are on their honor to spend it as they said
they would. The court creates no trust fund to ensure that the cash pile is
spent on the therapy that was said at trial to be absolutely crucial. If the
winners or their families run through the money buying other things, they are
free to dispense with the therapy or, if the problem is acute, to show up at
hospitals demanding free care. They will get it, too, so long as no visible
assets are on hand for medical creditors to proceed against.

And jurors do not have to award extravagant sums to criminal plaintiffs,
even when the law requires a ruling in their favor. Professor Jeffrey O’Connell
of the University of Virginia says juries have “enormous discretion” in
calculating damages. In their book Above the Law, Jerome Skolnick and
James Fyfe report that many juries award only a token dollar to criminals who
sue police. The McCummings jury was well aware of its discretion, to judge by
a letter to Newsday from jury foreman Robbins. It was because they saw
the plaintiff as a “lowlife,” Robbins wrote, that his colleagues removed some
of the gilt and ormolu from the original $18 million demand and thus “worked
the figure down to just over $4 million,” a figure Robbins himself has called
“insultingly low.” “Our feeling was that had the bullets gone into an
innocent victim, we would have used the $18 million as a point of departure,
to go upwards,” the foreman added.

Which confirms what you might call the green-cheese theory of courtroom
persuasion: if you start jurors off on the theory that the moon is made of
that fanciful dairy product, there is a good chance they will use it as a
point of departure and come to rest on a Gouda or Limburger theory of lunar
composition, at least. According to Marcia Chambers of the National Law
Journal
, by the way, many potential jurors were excused from the
McCummings case because they expressed the view that undeserving plaintiffs
should not get money.

The TA’s case did have a few significant problems. One was former transit
cop Manuel Rodriguez’s story that McCummings was lunging at him when the
officer fired, which did not fit the medical evidence and seemed rather too
neatly tailored to avoid the Tennessee v. Garner gray area.
Another was the lackadaisical record of a TA review panel, which failed to
check closely into the details of the case.

But witness-credibility problems and post-incident flubs do not
automatically lead to liability, let alone high damages. Henican’s account
suggests what made the difference: emotion, pure and simple. “By the time
[plaintiffs lawyer David] Breitbart was done, the jurors couldn’t stand the
two cops who had rescued Sandusky.” Breitbart, a lawyer heretofore best known
for defending alleged organized-crime figures, knew from the start that his
case was not an obvious winner. “Everyone said, ’The client is too unsympathetic,’”
he told Newsday. But that didn’t faze him. “I’m a criminal lawyer. I
beat up on cops all the time. I enjoy beating up on cops.”

Cases like this are not unusual. Across the country, criminals are using
the civil justice system to cash in on an ever-wider range of injuries
sustained in the course of their rather hazardous way of life:

* Ocie McClure, serving a ten-year sentence for mugging a Japanese tourist
in San Francisco, won $25,000 for his broken leg from Charles Hollom, a taxi
driver who had been hailed as a hero when he chased McClure down after the
mugging and pinned him against a wall with his cab.

* A Connecticut man now confined to a mental hospital got more than a
quarter-million dollars from a psychologist who had allegedly not given him
treatment that might have kept him from stabbing his seven-year-old daughter
to death.

* A psychiatric defense of incapacity that fails to convince a criminal
jury can still be good for civil dollars: a Texas man, convicted of murder
for shooting a friend despite his claim that his sleeping pill altered his
personality, nonetheless secured a $1.8 million jury award for his family by
suing the drug maker and others.

* Prison itself offers many opportunities to be compensated for injury.
Convicted killer Alfred Brown, with at least ten more years to serve of his
sentence upstate, won $2.7 million after catching his hand in a machine in
the prison furniture shop-a sum vastly higher than what workers’ compensation
would have provided had he suffered the same accident as part of an ordinary
factory job on the outside.

* A Georgia car thief was headed over the fence at his detention facility
when a guard grabbed his leg, causing the prisoner to fall. His lawsuit
charges that the authorities were to blame for his escape attempt because
they let him roam about although he was “supposed to be confined to a
restricted area.”

* As the New York Times reported in a January 1993 front-page
story, quite a few New York inmates are believed to have shot themselves
deliberately in order to set up injury claims against the authorities. The
common technique is to hold pillows or towels against one’s thigh or another
fleshy portion of the body while firing at close to pointblank, so as to
minimize the chances of being seriously hurt.

The “brutality bar”—which, of course, is bolstered by genuine instances of
police misconduct in New York and other cities—has prospered enormously in
the past decade or two, developing its own clearinghouses, referral groups,
peripatetic expert witnesses, ties to the media, and political clout.
Criminal law, except at the kingpin level, has long been a tough and
unremunerative lot. That may change in the future, as the contingency fee can
make a highly profitable client of even the lowliest arrestee.

One result is the rise of “defensive policing.” On a relatively innocuous
level, Sacramento, which is considered to have one of the best records among
California cities for avoiding police brutality, is nonetheless spending
$178,000 on video cameras to monitor its booking process in an effort to stem
what it describes as a tide of frivolous lawsuits.

More ominously, in the absence of reliable standards for immunity, many
police departments have been choosing to err on the side of caution—that is,
when in doubt, let the suspects get away. Word of this, of course, has
filtered down to the street, encouraging more suspects to make a break for
it, though in fact some will misjudge the arresting officers’ intentions and
wind up getting shot.

Much of America’s legal culture seems quite comfortable with the idea of
awarding millions to persons like Bernard McCummings, reasoning that only
civil suits—as opposed, say, to administrative discipline, legislative
investigation, or prosecution in egregious cases—can “send a message” to cops
and their superiors about the consequences of wrongdoing.

But the notion of message-sending can cut both ways. Jerome Sandusky, the
man McCummings left lying on the station floor, said the award “sends the
wrong message to all these hoodlums” about the consequences of their
wrongdoing. Sandusky, who has moved out of Manhattan, gotten an unlisted
number, and cut way back on his subway riding, says McCummings was hurt “because
of his own actions. It is just unbelievable that someone who engaged in
robbery and whose friends were trying to kill me should be given millions of
dollars.”

You might even think that the man in the street—literally in the street,
sometimes, with forehead on the pavement—retains a clearer view of incentives
than some of our legal academics and jurists. In 1992, after a Connecticut
man tried to outrun a police car in a high-speed chase, crashed into a parked
car, and then won half a million dollars for his troubles, a resident wrote a
letter to the local paper:

“I just read your article concerning [Domenic] Monte’s attempt to evade
the police and his subsequent accident. I just wanted to know if I understood
the lesson correctly.

“If an officer puts on his emergency lights and I stop, I pay $117. If I
run, I get $500,000. That seems simple.

“Could you advise me as to whom to contact at the Waterbury Police
Department to set up an appointment for a pursuit? I need the money to pay
these ridiculously high taxes.”

Up Next
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Good Standing?

Walter Olson
Politics and law

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