BY AMANDA BRONSTAD

Police brutality litigation is becoming a hot practice area for plaintiffs lawyers, who are lured by big verdicts and settle­ments and by the increased availability of videos depicting confrontations with officers.

Although civil rights attorneys say these cases present significant hurdles, more mass torts and personal injury law­yers see them as a way to build business and pursue social justice at a critical time.

“It’s one of the hot practices of law right now you see being reported and, because of that, you’ll see a lot of attor­neys jump into it,” said Daryl Wash­ington, managing partner of The Law Offices of Daryl K. Washington in Dallas. Washington spoke about the cases at the annual conference last month of the National Bar Association, a predominant­ly black lawyers group.

BY TONY MAURO

A month after U.S. District Judge Richard Kopf of Nebraska abruptly shut down his controversial blog, he still believes federal judges and even U.S. Supreme Court justices would do “far more good than harm” if they publicly blogged and tweeted.

“Properly done, the public’s perception of the federal judiciary is enhanced when judges speak and write can­didly about our courts,” Kopf said in an interview with

The National Law Journal. And he might blog again, he added—but not about judging or the law. “I have burned too many bridges to continue that activity on a regular basis,” he said, expressing regret about some but not all of his headline­making blog posts over the past two years.

The 68­year­old Kopf ended his blog, Hercules and the umpire, on July 9, after learning from Judge Laurie Smith Camp, chief of the U.S. District Court

SEE BRUTALITY, PAGE 5

SEE BLOG, PAGE 6

Police Cases Spur Business

Kopf urges judges to blog, tweet

CAUGHT ON CAMERA: The death of Eric Garner, above, led to a $5.9 million settlement.

RICHARD KOPF: “Properly done, the public’s perception of the fed-eral judiciary is enhanced when judges write and speak candidly.”

Victory for Disability AdvocatesRuling eases process for accommodations on LSAT.

BY KAREN SLOAN

Elizabeth Hennessey­Severson wasn’t sure she wanted to be a named plain­tiff in a class action against the organi­zation that administers the Law School Admission Test. It might hurt her chances of getting into law school, she worried.

But the aspiring lawyer thought about others like herself who had struggled with disabilities, she said—in her case, attention­deficit hyperactivity disorder and dyslexia, among others—but were denied accommodations during the test.

“There are so many other people who would benefit from a change in policies,” Hennessey­Severson said.

In 2012, she became one of 22 named plaintiffs who alleged the Law School Admission Council’s accommodation

SEE DISABILITY, PAGE 4

Brutality suits provide work for plaintiffs bar.

Jurist defends Hercules and the umpire, but regrets burning bridges.

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NEWS FROM WASHINGTON: Former Supreme Court clerks find a new venue on Capitol Hill, and two clemency lawyers land in hot water with a D.C. judge. PAGE 15

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During the conference, James Montgomery of James D. Montgomery and Associates in Chicago said police-misconduct cases have become a “cot-tage industry” for lawyers.

How much cities are paying out to specifically resolve brutality claims and lawsuits is uncertain, but Montgomery said that cities running the nation’s 10 largest police departments have paid $1.2 billion between 2010 and 2014 to plaintiffs.

“In this country, that’s $300 million in legal fees,” he said. “So it’s a great ave-nue to make money. And the police are feeding you new cases every day.”

In October 2013, the American Association for Justice founded a police-misconduct litigation group. Now with 70 members, the group fits well within a bar association that represents victims in mass torts or class actions, said its founder, Antonio Romanucci, a partner at Chicago’s Romanucci & Blandin.

“Because many lawyers handle tra-ditional personal-injury cases, they’re coming across a lot more police miscon-duct,” he said. “There’s just more aware-ness, therefore a greater percentage of those cases get reported and lawyers are looking at them.”

Previously, plaintiffs lawyers avoided police-misconduct cases because of their heavy discovery costs and the difficulty in overcoming government- immunity defenses. During the National Bar Association conference, Collette Flanagan, founder of the advocacy group Mothers Against Police Brutality, talked about the challenge she faced finding an attorney after a Dallas officer killed her son, Clinton Allen, in 2013.

“We have to have more attorneys,” said Flanagan, who eventually retained Washington. “We’re not talking about a few bad apples. We’re into orchards.”

Shannon Kennedy, a partner at Ken-nedy Kennedy & Ives in Albuquerque, said video evidence has become cen-tral because it can impeach testimony by police officers trained in justifying shootings. “There are not more cases, but the evidence is better because we have cameras capturing the police mis-conduct,” said Kennedy, who settled a case for $5 million last month on behalf of a homeless man’s family. Her client’s 2014 death at the hands of Albuquerque police was captured on video by an offi-cer’s body camera.

With or without video, lawyers are encouraged for another reason: Police-brutality cases have landed some eye-popping verdicts and settlements. “The landscape has certainly changed in the last two years in these cases,” Kennedy said. “Now municipalities, now jurors, will award multimillion-dollar verdicts to compensate families who have lost someone in a shooting.”

Several large cities, including Chicago and New York, are settling these cases

before they get too expensive and, in some instances, before they even are filed. The $5.9 million settlement reached last month in the 2014 death of Eric Garner was “the largest settlement in the city of New York for this type of case,” said Jonathan Moore, a partner at New York-based Beldock Levine & Hoffman who represents Garner’s family. Garner, a black man, died after an officer placed him in an apparent chokehold during an arrest in Staten Island.

Lawyers for cities and counties cau-tion that awards that large are rare—and that most misconduct cases settle for a few hundred thousand dollars. William Helfand, a shareholder at Chamberlain, Hrdlicka, White, Williams & Aughtry in Houston, said he settled one such case for $5,000. “So many of these cases end up with the plaintiff getting nothing,” he said. “I just don’t think there’s big money in it.”

CIVIL-RIGHTS LAWYERS CRITIQUEOther lawyers criticized the entry

of personal-injury lawyers in an area dominated by civil-rights attorneys. “In many cases, lawyers who have a straight personal-injury practice are incapable of representing plaintiffs in civil-rights cases because they don’t understand the nuances of civil-rights law,” Moore said. “It’s a complicated area that’s changing almost daily.”

L. Chris Stewart, managing partner of Atlanta’s Stewart, Seay & Felton, which primarily handles personal-injury liti-gation, said money wasn’t the driving force when he began taking calls about police brutality less than five years ago. He represented a woman who suffered a shoulder injury during a false arrest for shoplifting, he said.

“It was just wrong,” said Stewart, who now represents the family of Walter Scott, a black man who was shot in the back in April by a white police officer in North Charleston, South Carolina. A bystander’s video of the incident prompted nationwide calls for officers

to wear body cam-eras. “If you pick the right [cases] and go after them aggres-sively, you can have some success. You also can create a lot of change.” Still, most cases don’t feature video evidence, and there are other chal-lenges. Police officers can be held liable for punitive damages, but few carry insurance or can otherwise pay a large settlement or judgment. And offi-cers almost always cite the defense of quali-fied immunity, which shields government

officials from liability for constitutional rights violations.

Many plaintiffs bring so-called Monell claims, named for the U.S. Supreme Court’s 1978 decision in Monell v. Department of Social Services, allowing local governments to be sued for civil rights violations. But such claims aren’t easy—lawyers have to prove the officers were following governmental policies when they committed unconstitutional acts.

And a video isn’t a slam-dunk for the victim’s attorney. Lawyers on both sides said such evidence often turns out to support the officer’s story. In other cases, the camera malfunctions or the video isn’t that reliable.

“You can’t stop at whether there’s video or not,” said Larry Simmons, a principal at Germer in Houston who rep-resents Waller County, Texas, in a lawsuit filed by the family of Sandra Bland, a black woman who died last month in jail from an apparent suicide days after her arrest for a traffic violation that was caught on the state trooper’s dash camera.

“Oftentimes, with a dashcam, a por-tion of the incident will be on video, and if the suspect begins to flee the scene, it’s off video,” Simmons said.

Stewart acknowledged the challenges inherent in police-misconduct cases and insisted he’s selective about the ones he takes. After the video of Scott’s shoot-ing went viral, he said, he was flooded with calls about other police-misconduct allegations.

“We have countless cases worth $1 million plus, but the good of what can come from this situation outweighs the financial rewards sometimes,” he said. “And that’s just where the mentality of a lot of lawyers—not just civil-rights law-yers, just lawyers—can change. I don’t call myself a civil-rights lawyer. I’m just a lawyer. I take any type of civil case where somebody has been hurt.”

Contact Amanda Bronstad at abronstad@alm.com.

Settlements, Videos Spur Plaintiffs Bar To Pursue Police Brutality Cases

THE NATIONAL LAW JOURNAL/WWW.NLJ.COM ❙ AUGUST 17, 2015 5

national news

BRUTALITY, FROM PAGE 1

A View Into a Shadowy WorldBY MICHAEL D. GOLDHABER

It’s been called “the most brazen case of New Jersey-style corruption—ever.” The “Jersey

Sting” of 2009 netted five rabbis, the mayors of Hoboken and Secaucus, and a former bur-lesque star named Hope Diamond who had become deputy mayor of Jersey City. But easily the most colorful figure was an ultra-Orthodox kibitzer named Levy Izhak Rosenbaum, who for a decade hawked Israeli kidneys with impunity at American medical establishments.

As the first and only use of the National Organ Transplantation Act, Rosenbaum’s prose-cution and 2011 guilty plea drew attention to a shadowy trade that, according to the nonprofit Organs Watch, rips 10,000 kidneys each year from the bodies of the world’s most desperate. Europe experienced a similar moment in 2013,

when a court in Kosovo convicted five members of a kidney trafficking ring. The trade came out of the shadows in Africa and Latin America in 2010, when the Netcare KwaZulu hospital group pleaded guilty to aiding the transplant of black-market kidneys, mostly from Brazil.

The common denominator was the complic-ity of Israeli transplant tourists or middlemen. But Israel has responded nimbly, and set a rate of criminal enforcement that may lead the world. Prosecutors there estimate they have brought seven cases involving two dozen alleged kidney traffickers since 2007.

“Israel has a deservedly odious reputation in this business, but to their credit they have cleaned up their act—dramatically so,” said Gabriel Danovitch, who directs the transplant program at UCLA Medical Center. “Israelis have brokered organ deals all around the world. Nevertheless, Israel is to be commended for really taking a strong stance on this issue,” said Frances Delmonico of Harvard Medical School.

Danovitch and Delmonico monitor the trans-plant profession’s 2008 code of principles, the Declaration of Istanbul, which itself forms a rare case study in effective global self-regulation.

Israel keeps popping up in kidney-trafficking headlines because it has one of the world’s worst organ shortages. The simple reason is that some Orthodox rabbis refuse to declare a person dead until his heart stops beating, at which point his kidneys are useless.

The Kosovo and South Africa scandals led to a policy change in Israel in 2008. The National Health Service stopped reimbursing costs for transplant tourism. A new brain-death law changed the procedure for declaring the moment of death. A new organ-transplant law encouraged legal kidney donation by giving donors and their families priority on organ waiting lists and perks at national parks. It also made prosecution easier. Organ watchers believe that criminal enforcement is needed to keep Israel from backsliding. It surely cracks open a hidden world.

ON THE CASE: Shannon Kennedy, at Albuquerque’s Kennedy Kennedy & Ives, said her client’s $5 million settlement hinged on video evidence. Antonio Romanucci, at Chicago’s Romanucci & Blandin, founded a police- misconduct litigation group.

Michael D. Goldhaber is senior international correspondent for ALM and The American Lawyer. E-mail: mgoldhaber@alm.com.

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