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A mural depicting Alton Sterling and teddy bears at a memorial near where he was killed during an incident with Baton Rouge Police almost a year ago, on July 5, 2016, outside the Triple S Food Mart on North Foster Drive. Photographed June 28, 2017.

More than four years after the fatal police shooting of Alton Sterling, and numerous failed attempts to settle the resulting wrongful death lawsuit, the East Baton Rouge Metro Council will once again weigh a crucial question: Is it better to settle, or go to court?

If the council does choose to settle, its members must then answer an even more complicated question: How big should that settlement be?

Those questions will be on the table at their upcoming meeting Wednesday, when the council will consider whether to accept a proposed $5 million settlement after coming one vote short of approving that same offer last month.

Some council members have argued against any settlement whatsoever and others have said that going to trial is the best way to provide the public with a full accounting of the facts and evidence. The city's attorneys said they would prefer a settlement, but called the $5 million proposal excessive. 

If an agreement isn't reached in the coming months, the case will be decided at trial, an unpredictable option that places the outcome in the hands of East Baton Rouge jurors, who could choose for themselves what the case is worth.

With massive Black Lives Matter protests unfolding across the nation in recent months, demonstrators have adopted a familiar rallying cry: chanting the names of people killed during interactions with police.

Many of those high-profile cases have two things in common. They've garnered significant public attention, and the resulting civil lawsuits have ended in settlement agreements. Taking the Sterling case to trial would be an unusual step, said Joanna Schwartz, a law professor at UCLA who studies police misconduct cases.

For example, officials in Louisville recently announced a $12 million settlement with Breonna Taylor's family after she was killed when officers shot into her apartment during a botched drug raid. That agreement was reached quickly — even before a decision from prosecutors about whether the officers involved would face criminal charges.

Schwartz said the choice of whether to settle is a political calculation for local officials and attorneys. She said those calculations don't happen in a vacuum, noting the current political climate and public outrage following the death of George Floyd at the hands of Minneapolis police.

"It's very hard to predict what a jury might come up with. That could be zero or it could be $100 million," Schwartz said. "The general view is that people settle to avoid the uncertainty of going to trial." 

That uncertainty hinges on several factors in the Sterling case: the history of the officer who shot him, the circumstances of the shooting, and the size of other settlements and jury awards elsewhere in the country, to name a few.

'Dozens of red flags'

The lawsuit makes a series of sweeping claims against the City of Baton Rouge, but a question central to the case is whether the police department was negligent in its hiring, training and supervision of Blane Salamoni, the officer who fired the six shots that killed Sterling.

Both state and federal prosecutors declined to bring criminal charges against either of the officers involved in the confrontation with Sterling, and a judge ruled last month that the second officer, Howie Lake II, should be dismissed from the ongoing civil litigation.

Attorneys for Sterling's five children argue that Salamoni's conduct in the years leading up to the shooting should have raised "dozens of red flags" about his fitness for the job. Chief Murphy Paul, who was appointed to lead the department long after Salamoni was hired, called the former officer "a man who should have never, ever worn this uniform. Period."

Paul fired Salamoni in 2018, saying he had violated the department's policies governing use of force and command of temper.

Parish Attorney Andy Dotson, who serves at the behest of Metro Council and is responsible for supervising the legal affairs of the city-parish, said he could not comment on pending litigation.

If the case goes to trial, the plaintiffs' attorneys will present evidence to argue Salamoni's supervisors didn't do enough to curb his concerning behavior even after he was given a badge and gun.

The evidence is likely to include a report from a routine psychological exam given to Salamoni during the BRPD hiring process in 2011. The report, which was obtained by The Advocate, notes that Salamoni had a "history of impulsive/explosive behaviors at an earlier life stage," but concludes he's "suitable for armed, independent law enforcement work."

The report also says Salamoni had experienced "a psychological disorder that required treatment" but doesn't provide additional details about the specific disorder. It says he reported past illicit drug use, but not within the past two years.

Those "historical factors of concern" were not enough for the report's author to find Salamoni unsuitable for the job. But the psychologist said his supervisors should monitor him, with an eye toward "early detection" of reemerging "impulsive/explosive" behaviors. 

Salamoni's attorney, Steve Carleton, said that, despite what attorneys for the Sterling family want the public to believe, the bottom line is the psychologist found Salamoni fit for police work.

Carleton also said he believes the case comes down to the circumstances of the shooting itself. He said plaintiffs' attorneys are "trying to broaden the case with negligence theories, but it all boils down to whether or not that resulted in an unreasonable use of force."

He said that if the case goes to trial, the jury will have to consider the fact that Sterling had a loaded .38 caliber revolver in his pocket during the struggle with Salamoni and Lake. The officers were responding to reports of someone matching Sterling's description who had threatened another person with a gun.

Video footage of the brief encounter shows Salamoni struggling to gain control of Sterling's arm, yelling that he had a gun and then firing his own weapon, all in rapid succession. That chain of events is what led prosecutors to decide against pressing charges against either officer, though BRPD internal investigators concluded Salamoni had used excessive force. 

Ken Levy, a law professor at LSU, said a jury will have to decide for themselves whether they think Salamoni's actions at the scene of the shooting were warranted. 

Levy said that the plaintiffs are likely to argue that Salamoni unnecessarily escalated the encounter when he started yelling profanities almost immediately after arriving on scene, drew his weapon and then tackled Sterling after attempts to use a stun guns were unsuccessful. 

Another piece of evidence that recently became public is a BPRD internal report submitted to Paul just days before the 2019 speech, in which he slammed his predecessors for ever hiring Salamoni in the first place.

That report includes a review of Salamoni's hiring records conducted to determine whether nepotism was the deciding factor in his eventual employment. Both his parents spent decades on the police force and his father was a union leader for some time.

After Salamoni submitted his application to BRPD, department officials determined he had been intentionally dishonest during the hiring process. That same disqualifier led to three other candidates being rejected while Salamoni was allowed to become a cop, according to the report.

Paul later said Salamoni failed to disclose a previous domestic abuse incident on his application.

A 2009 police report shows Salamoni was apprehended for simple battery at a downtown Baton Rouge bar after an off-duty sheriff's deputy saw him yelling and shoving a woman.

Attorneys for Sterling's children argue that additional red flags were raised once Salamoni had been accepted onto the force. Among other alleged incidents, they point to a heated argument between Salamoni and another officer at the department's firing range, which led to a supervisor calling him "borderline nuts" in an email to colleagues.

Attorneys have also obtained a 2014 complaint filed by an East Baton Rouge paramedic, who claimed that Salamoni prevented medical personnel from rendering aid at a shooting scene while the dying victim was left "shaking and gasping for air."

After Salamoni was placed on administrative leave during the Sterling investigation, he was issued a misdemeanor summons for simple battery after bodycam footage revealed he had slapped a suspect during a domestic violence investigation. That incident occurred less than a month before the Sterling shooting.

The Sterling family attorneys claim someone at BRPD should have acted sooner to get Salamoni under control.

"Nobody ever stopped and said, 'Wait a minute, we've got a guy here who's having a lot of issues. Maybe we ought to talk to him, or retrain him, or fire him. Maybe he shouldn't be a police officer,'" said Brandon DeCuir, an attorney for Sterling's family. "Well, guess what. He ended up killing somebody."

The five million dollar question

To avoid going to trial, the Metro Council last year agreed to participate in non-binding mediation, a process that allowed attorneys for each side to present arguments to an independent arbiter on what they considered a reasonable settlement amount.

When the mediator returned with a decision — $5 million — attorneys for the city rejected it as excessive, arguing in an email to council members that the plaintiffs could only get $1 million if the case went to trial because of statutory caps on damages assessed against municipalities. 

Attorneys for Sterling's children called the city's legal rationale misguided and said they were surprised that the city didn't accept the opinion of the mediator. The attorneys said the city specifically chose the mediator because he was White, conservative and lived outside of Baton Rouge.

They said the caps don't apply to the federal claims and argued the city will also be on the hook for any damages assessed against Salamoni, citing a clause in the police union contract that covers any damages assessed against officers sued in the course of their employment.

Parish Attorney Andy Dotson told the council in September that it hadn't yet been determined whether that coverage would apply. The same clause of the union contract requires the city to pay for legal representation if an officer is sued. The city honored that stipulation and has already spent $179,000 on the officer's legal fees, a number that's expected to rise to $500,000 if the case is appealed, Dotson said. 

The parish attorneys in their brief to the mediator cited the settlements in the Danziger Bridge shootings out of New Orleans — when police officers shot six unarmed citizens in the aftermath of Hurricane Katrina — as benchmarks for potential valuation. They said none of the individual plaintiffs in those cases received anything close to a $5 million settlement, though several officers were convicted and sentenced to prison time.

DeCuir challenged the comparison and said it was illogical to benchmark the Sterling case against an incident that occurred more than decade earlier. "The country has changed. Its tolerance for this kind of behavior has changed," he said. "The value of these cases has changed."

If the jury decides in the plaintiff’s favor, they’ll have wide latitude in how they assess damages. Some damages, like the loss of income, are calculable and unlikely to add up to much.

Others, however, like the loss of love and affection or the pain and suffering Sterling felt in the minutes before he died, are emotional and could push damages into the many millions, legal experts said. 

The fact that Sterling had five children could also inflate any damages assessed, said Michael Palmintier, a local attorney specializing in torts. Each child has the right to sue, and the jury will have to determine how much to award each child, which could act as a potential multiplier.

“It all depends on what the twelve people sitting in the jurors box think,” Palmintier said. “Do I think this case could cost the city-parish a lot more than $5 million? Yes. Do I think Sterling’s family could get a much smaller payout? Yes.”

How does it compare?

Comparing settlement amounts in high-profile police shooting cases is difficult and somewhat unproductive because there are so many variables. But it does provide some context for evaluating the $5 million number.

The parents of Michael Brown, the teenager killed by police in Ferguson six years ago, received $1.5 million from the city. Brown was unarmed, but both state and federal prosecutors declined to charge the officer involved, finding credible his claims that Brown attacked him in the moments before the shooting. That case sparked widespread protests back in 2014.

The 2018 case of Stephon Clark, who was shot and killed in Sacramento after officers mistook his cell phone for a gun, resulted in a $2.4 million settlement agreement for his two sons. The officers in that case did not face criminal prosecution and were not fired from their jobs or even disciplined.

The mother and sister of Laquan McDonald, 17, accepted a $5 million settlement after he was shot and killed by Chicago police in 2014. He was carrying a knife but walking away from officers when the shooting occurred. The officer who pulled the trigger was convicted of second-degree murder and sentenced to more than six years in prison.

Eric Garner's family sought $75 million in damages after his 2014 chokehold death, but reached a $5.9 million settlement with the City of New York. His last words — "I can't breathe" — have since become a common refrain at nationwide protests against police brutality. That settlement amount was divided among Garner's widow, his mother and five children.

Like in the Sterling case, both state and federal prosecutors declined to bring charges against the officer responsible for Garner's death, but he was fired from the department after those criminal investigations had concluded.

The recent $12 million settlement in the Breonna Taylor case is on the high end of such agreements. But a $20 million agreement was reached following the Minneapolis police shooting that left an Australian woman dead after she called 911 to report a possible assault of another woman outside her house. The officer who shot her was sentenced to 12.5 years in prison on a third-degree murder and manslaughter conviction.

Another example outside Baltimore highlights the unpredictability of jury decisions in these cases. A jury awarded almost $38 million to the family of Korryn Gaines, who was armed with a shotgun when police killed her after a long standoff. The verdict was overturned on appeal but reinstated by a higher appellate court, making it one of the biggest awards to date.

The Sterling case is crawling toward a March 2021 trial date. Even if the Metro Council once again rejects the $5 million settlement this week, the two sides could still continue negotiations and reach an agreement in the meantime.

"Given the public attention surrounding the Alton Sterling killing, and given the moment that we're in — and the possibility that a jury would render a verdict far greater (than $5 million) — it's hard to know what's going on in this case," Schwartz said.

 

Email Blake Paterson at bpaterson@theadvocate.com and follow him on Twitter @blakepater