Backlash Against Police Use of Force Is Making Its Way into US Courtrooms

Increased scrutiny over police use of force stemming from the past year's high profile police-involved shootings has led to a shift in the way wrongful death lawsuits are being handled, according to attorneys and outside observers.

Though still rare, wrongful death suits are now more likely to be weighed by juries on evidence, particularly video evidence, of police wrongdoing, whereas in the past they relied heavily on the credibility of law enforcement and the narrative officers presented during a trial, experts told VICE News.

Don Hummer, a criminal justice expert at Penn State University, has studied wrongful death suits against police in the US in the past and said there has been a marked change in the way the lawsuits are now seen in courts and by the public. One major reason for the change is the prevalence of video, taken on cell phones and dash cams and body cameras, that shows a full range of events.

"The ones you're seeing now that get a lot of media attention I think represent a shift in cultural perceptions of whether or not police misuse force," Hummer told VICE News. "With the video evidence now it's not one person's word against another, where police have the upper hand and control the perception — it's more of a level playing field, and I think that's going to change the outcomes."

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William T. Gaut, a retired police detective who now works as a criminal justice consultant on wrongful death lawsuits, said that the historical trend of the high credibility automatically afforded to police officers with juries may be beginning to erode.

"You've always got jury nullification in favor of police officers. Everybody wants to find for law enforcement. But now there's a lot of media attention to wrongdoing by police officers, especially with video and cell phones, dash cams, body cams, so now, I don't know if they've got quite the jury nullification that they had years ago. Citizen juries now are beginning to get a firsthand look at things. So it's now becoming more evidentiary-based than witness-based," Gaut said.

Last week, attorney Keith Greer filed a wrongful death lawsuit against the FBI for the wrongful death of James DiMaggio, an alleged kidnapper and murderer who was shot and killed by and FBI hostage rescue team in the summer of 2013. DiMaggio's sister Lora DiMaggio Robinson, represented by Greer, is claiming $20 million from the the bureau, claiming that agents were too quick to shoot and kill her brother.

The case is an unusual addition to the string of high-profile wrongful death lawsuits brought against law enforcement over the past year, including those brought against police in Ferguson, Missouri, after the death of Michael Brown, in Staten Island, New York, after the death of Eric Garner, and in Cleveland, Ohio, after the death of Tamir Rice.

The DiMaggio case acknowledges that the deceased was accused of serious crimes, but argues that law enforcement still should not have shot and killed him.

An inquiry by the US attorney into the case in 2014 found the shooting was justified. But Greer said there were still valid questions about whether FBI agents acted as "judge, jury, and executioner" when deciding to shoot and kill DiMaggio, questions that he said resonated with a public that has grown wary over police force.

"The conversation around the country in the week since [the news of the lawsuit] has been out there seems to reflect that people are not focusing on the acts he allegedly did but the process and the system, that perhaps police went beyond their boundaries," he told VICE News.

Greer said that despite a potential backlash for claiming the unlawful death of a man accused of such violent crime, he and Robinson felt that it was important, amid a growing concern about police use of force in the country.

"I have a lot of respect for these guys [the hostage rescue team], and I was hesitant to bring the case. They put themselves in harm's way all the time. But with that great responsibility they have, they can't let passion take over," Greer said. "By usurping the system and taking justice into their own hands they've taken the life of somebody who didn't have to have life taken."

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Authorities said that DiMaggio kidnapped 16-year-old Hannah Anderson after murdering her mother and brother, then took her to a campsite in the woods in Idaho.

According to the claim, US Marshals spotted the campsite in their search for Anderson and sent an FBI Hostage Rescue Team in to rescue her. Anderson said after the ordeal that DiMaggio had been building a fire to send a signal for help when she suggested he fire his gun into the air three times to call for help instead. Upon his first shot, agents poised nearby opened fire at him, shooting him six times, according to the claim.

Greer said in the claim that given DiMaggio's history of having a familiar relationship with Anderson, the number of officers who could have restrained DiMaggio instead of shooting him, and the fact that DiMaggio was not threatening harm toward Anderson, the FBI's use of force was unduly excessive, prejudicial, and unjustified. He hopes to call Anderson as a witness in the case.

"Our position is that this is a very well respected hostage rescue team, so we're presuming they had eyes and ears on the ground, and surveillance equipment so they could hear and see what was being done, so if that's the case and they did hear that, the question is why did they wait until he got to the gun? There was plenty of time and to stop him and warn him before he touched the weapon," Greer told VICE News.

"Our concern is they sat and waited until there was an opportunity to take a shot, rather than do their duty in the circumstances to apprehend an alleged criminal," he said.

Hummer said that the public's perceptions of police would affect the way juries weighted police and witness testimony in wrongful death cases.

"Now, most people up to age 60 or so have had bad experiences with police. The last three sitting presidents have had bad experiences with police, whether from marijuana use or alcohol use or the color of their skin, and so a lot of people are thinking that maybe police aren't what they built themselves up to be," he said. "There's a suspicion of power generally in the US and now it's permeating police, so that coupled with the technology that now everybody has, there may now be a shift."

The FBI did not immediately return requests for comment.

Follow Colleen Curry on Twitter: @currycolleen

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