By Mark David Blum, Esq.

Three years ago, a federal jury awarded Derrick Wilson $25,004.00. The then newspaper accounts of the trial and verdict had a most shocking quote from Terry Bright, Esq., the then Corporation Counsel for the City of Syracuse. Her words should not have gone unchallenged. Her words posed a clear and present danger for all citizens and visitors to the City of Syracuse.

On September 21, 2005, Ms. Bright was quoted in the Syracuse Newspapers, in an article written by John O’Brien, saying, “ the city will cover the punitive damages for the officers because followed proper protocol.” Reporter O’Brien just let that comment go. So too did the Syracuse Common Council and every citizen in the City.

Why are her words so offensive? Here is the background to what she said.

At law, there are several different kinds of damage awards available in a civil action. There are nominal damages, compensatory damages, and punitive damages. There are also awards of costs and attorney fees. Each type of damage award provides relief in response to different behaviors.

“Nominal damages” prove the point. Since this has happened to me in one of my verdicts, I bring you a first hand account. A police officer gets mad at you at a traffic stop. He takes you out of your car, arrests you, puts you in his cruiser, and takes you to jail. While there, his supervisor tells him the arrest was bad and to immediately return you to your car with an apology. He does. You sue for false arrest. Assuming you win your case and prove the cop did wrong. The next question to the jury is how much are your injuries. In the hypothetical here, there were no real damages other than inconvenience. A jury can recognize the defendant did wrong but without injury to person or property, the jury will award ONE DOLLAR or less as being reflective of no injuries. Anybody who has read QB VII by Leon Uris understands this concept.

In the Wilson case, the jury awarded Mr. Wilson ONE DOLLAR from each of the four defendants. This reflects in their minds that he suffered no real injury.

The next class of damages is called ‘compensatory’. These are the meat-and-potatoes type of damages where a plaintiff is made whole for his losses. Pain, suffering, property damage, and personal injury are in this grouping. Here is where people like the Heavy Twitters make their money.

But assume that you are a civil servant doing an ugly job; like a cop. You are in a job that requires you to drive fast, carry a weapon and use it, invade homes, and fight with bad guys. In the course of that employment, there will be people hurt and property destroyed. That is just the nature of the work and not a value judgment. When the injuries were shown to be wrongfully inflicted or property wrongfully destroyed, the municipality is required to compensate the injured party for his losses. This is a good thing as in our society, when A causes a loss to B, A should be required to pay B back for the loss. When A is a government worker acting in the course of his employment, then taxpayers foot the bill to make B whole. This is normal, common, and good policy.

When Terry Bright took over as Corporation Counsel for the City of Syracuse, she turned this policy on its head. Her position then and hence, the policy of Mayor Matt Driscoll, is that no citizen harmed by a City employee should be compensated. Ms. Bright declared publicly that there will never be any settlements with plaintiffs who sue the City. By fiat then, she declared that anybody hurt by a City worker has to just suck it up. Bright points to how much money the City has saved by screwing injured people out of just compensation.

As if that was not bad enough …

The third class of damages is called “punitive damages”. This is a unique part of law that is disconnected from injury or liability. Punitive damages are designed to be a civil equivalent to criminal sanction. Here, the jury goes beyond the question of whether A did wrong to B and if so how much should A pay to B. Instead the jury looks to a different question. Specifically, the jury is asked to decide whether the wrongdoer did so with malice, intent, gross negligence, or some other form of willful or evil mindset that goes beyond just running a red light. Here is where the law provides juries with a tool they can use to send a message to the defendant and to society as a whole that such behavior is not tolerated, is unacceptable, and should stop immediately. Calculating the amount of money is based on the income and assets of the defendant. The award should hurt.

The McDonalds coffee case provides a great example. There, the woman who got burnt did not really suffer significant personal injuries and the compensatory damage award to her was not that great. But, when asked to decide how much money would be enough to send a message to McDonalds that serving scalding hot cups of coffee to drivers through the drive up window poses a serious risk of injury … the jury reached a number that they felt would drive that message home. The number was supposed to be felt by the company and give them incentive not to engage in such behavior in the future … and so that Burger King, Wendys, and the rest would likewise not engage in such dangerous activities.

Punitive damages serve a special role in our legal system and should be jealously used. It is a very rare thing that punitive damages are awarded. There is a requirement that the Plaintiff prove far more than just negligence or wrongdoing. A heavy legal burden is upon any Plaintiff to show that the defendant was being malicious, that he intended to cause the harm, or that he was so grossly negligent that he should have (and probably did) know better.

The role these damages play is monumental. It is the big stick that is used to keep otherwise insulated defendants in check. When McDonalds prices a cup of coffee, they have built into the price their anticipated losses from injuries and lawsuits. If they expect 1,000 claims a year for coffee burns and that from such claims, they will pay a sum of money, that money is divided among the cups of coffee. So, when they get tagged for compensation, they already have gathered the money into their bank accounts.

Punitive damages stop the bad actor. They are the motivation that stops people from acting evilly. Punitive damages and the threat thereof prevent serious malicious harm from befalling people. It is contrary to our social contract to insulate and protect a person from being responsible for their willful and intentional acts. If we do, then what mechanism is there to stop evil behavior from occurring?

Look no further than your own automobile or homeowners insurance policies. You are clearly protected from acts of negligence. Slips and falls, crashes, or fire are all acts of negligence and policies will pay out. If it is found that you knew the stairs were going to collapse, or you purposely engaged in a drag race, or you set fire to your home, then your insurance is not going to pay. These are intentional acts that cannot be insulated. People have to answer for their sins; not their bad judgment.

In cases involving police misconduct, it is even more severe. To even get to Court on a case against a police officer or a department, you already have to prove intent to cause a violation of rights by the officer. It must be shown that the constitutional violation (beating, false arrest) was the intention of the police officer. Negligence, stupidity, and incompetence by the police officer are not enough for a Plaintiff to bring a civil rights action.

To get to the next level, a finding of punitive damages, requires a hard convincing showing that the involved officers not only intended a violation of the plaintiff’s rights, but that it was done with malice. A police officer shown to have willfully intended a constitutional violation can be compelled by a jury to pay punitive damages.

Here in Syracuse, City Hall and its Corporation Counsel have paid the punitive damage award in the Wilson case. One officer was tagged with a $10,000.00 punitive damage award and the other three involved officers were sanctioned $5,000.00 each. Clearly, the jury was very offended by the evil mean willful acts of the defendants. The jury wanted these officers to feel the pain and answer for their sins. This system protects us all and keeps otherwise insulated civil servants, in line.

I am not convinced that it is legal for taxpayers to be required to foot the bill for a judgment of punitive damages against a municipal employee. In fact, I am almost sure that doing so would be illegal and contrary to well established State and Federal law.

But worse than City Hall merely violating the law, is that if Syracuse is going to financially insulate its officers from answering for their sins, then the City is giving a ‘green light’ to all municipal employees to let go and feel free to treat citizens with all the mean spirited, evil, malicious behavior imaginable. Under Syracuse’s policy, no one among us is safe. Police can beat the crap out of you, snowplow drivers can drag you for blocks, you can have your property destroyed, and your freedom stolen. While your compensatory damages are going to get paid, there simply is no incentive for civil servants in Syracuse to behave according to law.

Police are trained to behave according to guidelines. They are trained and have rules and policies to which they must adhere. If the City is going to turn its back on citizens and implement a policy where police can violate their training, ignore the law, and trample the constitution … all without sanction, then the City of Syracuse has become a very dangerous place.

If Syracuse is going to be insulating its employees from punitive damages, then I propose in the next case that comes before a jury on the question of punitive damages (and that will be soon), the pockets and assets of the City itself be taken into account before an award is determined. Otherwise, there simply is no incentive for City workers to obey the law and keep us all safe.

Frankly, I am glad to not be a resident of Syracuse. I don’t think I can afford the taxes that will be needed to fund their debt service.

But, if you are a resident, OBJECT LOUDLY to City Hall paying for punitive damage awards on behalf of its employees. It is illegal, immoral, and violates the most basic tenets of our legal system.