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July 30, 2018

Corp. Counsel Unit Defending Cops Wins 85% of Cases Going to Trial

Less Inclined to Make ‘Nuisance’ Settlements


MAKING THE CASE FOR ACCUSED COPS: Patricia Miller, the Division Chief for Special Federal Litigation for the Corporation Counsel, said of one case in which she successfully defended a Sergeant involved in a fatal shooting, ‘He’s not a monster. He was an officer faced with a tragic choice. He fired one shot, the only shot he has ever fired…because a young man pointed a gun up into his face.’ The Chief-Leader/Michael Friang.

For years, police brass as well as cops were perturbed by the willingness of the city Corporation Counsel to settle civil lawsuits brought against the NYPD rather than take them to trial. The city’s lawyers countered that settling cases for their “nuisance value” saved taxpayers tens of millions in potential litigation costs without the city having to admit any wrongdoing.

But back in 2011, near the end of Mayor Michael Bloomberg's tenure, when payouts over allegations of police misconduct hit the billion-dollar mark, the city started to shift its approach. It hired additional staff so it could take the civil cases to trial when there was a principle at stake and it believed the actions taken by police were justifiable and that a jury was likely to agree. Since 2014, with former U.S. Attorney Zachary Carter serving as Corporation Counsel, that strategy has been enhanced.

Having Positive Impact

So far, two things have happened: the number of suits filed annually has dropped, and the city has been successfully defending the cases it tries. The Corporation Counsel’s Special Federal Litigation Unit has won 85 percent of the cases it opted to take to trial.

The unit is responsible for defending the NYPD, the Department of Correction, the five city District Attorneys, the Sheriffs, and the Health + Hospitals Police Department against any allegations of misconduct that become the subject of Federal litigation.

Patricia Miller leads the Special Federal Litigation Unit. The way she’s defined the role, she’s a player-coach, trying cases herself as well as working with staff attorneys on trial prep, including full rehearsals of all opening arguments. Before this assignment, she handled Federal labor and employment litigation for the city.

Ms. Miller was born in New York but grew up in Maine. She said that it was thanks to a chance event while working as a teenage waitress that she caught the trial-attorney bug. “I witnessed a shooting when I was in high school,” she said. “I was working an overnight shift at a Dunkin' Donuts and I saw somebody get shot and then I became part of the process, and from then on I was always interested in that process, and in trials particularly.” She was graduated from the Marshall-Wythe School of Law at the College of William & Mary.

‘A Voice in the Process’

“What interests me in the public sector is the representation of individuals,” she said. “The city functions through human beings, and I think that is often forgotten, including the Police Department. It has always been of great interest to me to represent those people and give them a voice in the process.”

Ms. Miller said she relishes defending police officers because they need “to know that somebody somewhere has their back, because there is so much scrutiny” of them on so many fronts. “There is the national debate. The public scrutinizes them, as they should scrutinize their law enforcement. The CCRB scrutinizes the police officer. IAB scrutinizes the police.”

She continued, “For years there was this idea that you could hang up a shingle, file a lawsuit and get a few bucks. Sue the Police Department, or sue the city in general and we’ll go from there. Those days are done.”

While the city does litigate cases more frequently, there also has been a move by the de Blasio administration and City Comptroller Scott Stringer to settle some civil-rights-violation cases and wrongful-conviction lawsuits earlier in the claims process.

“If you have a case that has some merit, truly something has happened, there is an obligation to try and resolve that in some fashion to correct the wrong. But don’t bring stuff that is just a quick-buck situation,” Ms. Miller said. “That is not going to fly.”

Taste for Federal Cases

She said she prefers Federal cases because the jury pools are more geographically diverse. “So if you are in Bronx Supreme, everybody in your jury pool is from The Bronx,” she said. “If you are in the Southern District you are going to have Manhattan, The Bronx, Westchester, maybe a little farther north. If you are in the Eastern District, it’s Brooklyn, Queens, Staten Island and parts of Long Island. So you have a mix of people, and for better or worse, those folks are chiming in on what do they think of our employees.”

Ms. Miller noted that the initial filing of the Federal civil-rights lawsuits, in which the city and the NYPD are named as defendants, can be counted on to generate headlines and broadcast segments but there’s rarely any reporting when juries reject the claims and find for the city.

“We tried a case recently, a shooting case that I personally tried in March of this year,” she said. “When the suit was filed, the press made it sound like the NYPD Sergeant [Patrick Quigley] that was involved had executed somebody, like shot him in the back of the head—and that was the media coverage for it.”

‘Faced With Tragic Choice’

She went on, “We then take it to trial. We present the entire story to members of the public, ie., the jury, and now they are like ‘oh’ and they find in favor of the officer. It’s not an execution. He is not a murderer. He’s not a monster. He was an officer faced with a tragic choice. He fired one shot, the only shot he has ever fired in his entire career, and it is because the decedent as a young man pointed a gun up into his face, leaving him with no choice. But if you read the media, social media, etc., it doesn’t sound anything like that.”

Mr. Quigley in a statement had nothing but praise for how he was defended. “To truly put into words how being involved in this shooting affected me would be impossible. I can say that almost six years later I’m tearing up as I write this. The case process has been humiliating for me and has invoked strong feelings of sadness, anger and anxiety which lasts well beyond depositions, trial preps and the two trials."

He continued, “All of the lawyers who represented me in this case understood that. They stood by my side and treated me with great care and dignity. I really cared about what all the people in that courtroom thought of me, I didn’t want them to believe the lies that were being told by the plaintiff. I remember saying time and time again, ‘Pat, I just want them to know the truth… I just want them to know the truth!’ I feel blessed to have the truth delivered and defended by Patricia Miller and her team of dedicated lawyers and to have a verdict decided in my favor in the absolute worst incident in my entire life.”

Ms. Miller said a similar disconnect between how the news media reported the initial filing of a lawsuit and the actual outcome at trial played out in a false-arrest case in which the plaintiff alleged police were motivated by the generation of overtime pay.

‘Guy Was Dealing Drugs’

“But what’s lost in the conversation, if you looked at the actual facts of the case…there were no merits to the case. The guy…was dealing drugs out of his store and then brought a lawsuit claiming false arrest.” In a poll of the jury, U.S. District Judge Jack Weinstein “asked the jury point-blank, was the plaintiff falsely arrested, sort of the normal questions, but then he also asked the question: was this arrest motivated by a desire to accumulate overtime? And the jury answered no.

“But the whole thing leading up to this case” in the press “was ‘overtime, overtime, overtime—police officers are making arrests for overtime. And then when the [jurors] heard the evidence and was asked the question point-blank, the answer was no.”

For Ms. Miller and her colleagues who defend the law-enforcement community, the hope remains that even if the court of public opinion might be skewed against the police, once a jury is convened, the attorneys can make their case.

‘We Ask a Lot of Cops’

“We expect our officers to know everything, know how to diagnose someone with a mental-health problem,” Ms. Miller said. “Police officers arrive on a scene—nobody gives them a résumé as to who they are dealing with. Nobody gives them a stack of medical records to review and they are trying to protect the public.”

She continued, “They are trying to protect the person that they are dealing with and be aware of that person’s civil rights and to protect that person from hurting him or herself and others as well. And you’re asking them to 'size up' situations as quickly as possible. We ask a lot of police officers…and you have to give them some wiggle room when they are making these split-second decisions."