More than two years after a wrongful death lawsuit was filed on behalf of Alton Sterling’s children, the city-parish and the plaintiffs have yet to come to a settlement agreement, raising the chances of the case making it to trial, scheduled for April 20.
And attorneys on both sides appear to be preparing for such a scenario, as they file motions to sort out important questions ahead of the trial—such as whether the city’s liability is limited by state law, even though the lawsuit involves federal claims, or if the city must indemnify the police officers named as co-defendants in the suit.
Once those issues are figured out, however, the bigger question if this lawsuit goes to trial will be whether the Sterling family has a strong enough case to be awarded damages.
And if so, how will the city pay whatever amount for which it’s found liable?
Baton Rouge has a specific fund in its budget for this purpose. It’s called the Insurance Reserve Fund, which provides money for settlements and judgments, as well as workers’ compensation claims, among other things, says Mayor Sharon Weston Broome’s spokesperson Mark Armstrong.
The fund has roughly $19.9 million dedicated for claims and judgments in 2019.
The question of whether damages will actually be awarded is the more difficult one to answer. Attorneys on either side are obviously split, both believing they have strong cases. But the community is even more divided on the issue of whether the city is liable for the death of Sterling—a black man shot and killed by a white police officer in July 2016—mainly along racial lines, like countless other Baton Rouge problems.
“It’s a difficult case to settle because people’s positions are intractable,” says Stephen Carleton, defense attorney for former officer Blane Salamoni. “People think either there is clear liability or no liability.”
Outside legal experts, however, say the case could be tough for the plaintiffs to win. Successful wrongful death claims must be able to prove the defendant brought about the death of someone else either through negligence or intentional action. Intent, which results in punitive damages, is a much higher threshold, meaning plaintiffs have better chances of proving negligence.
But in situations like the Sterling case, involving law enforcement, police officers often have “wide latitude” in their actions, says Ken Levy, an LSU law professor specializing in criminal law.
“My guess, based on similar incidents around the country, is it’s very rare to find police were negligent,” Levy says. “I’m not saying impossible, but the odds are in favor of the police.”
There are some other factors, though, that bode well for the claimants, including the fact that this is a civil case, requiring a lower standard of proof—the “preponderance” of evidence—than criminal cases that require proof “beyond reasonable doubt.”
Also, the lawsuit centers around a highly sensitive subject, the police shooting death of Alton Sterling, which set off days of protests that consumed Baton Rouge in the summer of 2016. So there’s likely some political pressure for an outcome in this suit that will not spark mass outrage, Levy says.
In the event that damages are awarded, the question attorneys are currently discussing—how much the city could be liable for—will come into play.
The Parish Attorney’s Office has filed a motion asking the court to recognize a state law that caps liability in personal injury and wrongful death claims against a municipality at $500,000. So the city-parish maintains its liability should be limited to $1 million—$500,000 in wrongful death and $500,000 in personal injury.
In an unusual twist, though, plaintiff attorneys and those representing the two police officers in the case find themselves on the same side, for once, arguing the city is also responsible for liability on behalf of officers Salamoni and Howie Lake. They cite the collective bargaining agreement between the city and police union, which says the city is responsible for indemnifying officers while they are acting in the “course and scope” of their employment.
In addition, the plaintiffs also argue the lawsuit involves state claims as well as federal civil rights claims, and the state cap does not cover federal claims, says attorney Michael Adams, with the Decuir, Clark and Adams law firm, representing Sterling’s children.
These arguments will be heard and sorted out at an Oct. 21 hearing.