Thousands march in Washington, D.C., protesting police brutality Thousands march in Washington, D.C., protesting police brutality and the killing of George Floyd in Minnesota at the hands of local police, on June 6, 2020. Photo: Diego M. Radzinschi/ALM

Over the past month, front pages of newspapers across the country have been splashed with dramatic pictures of police clashing with protesters, and on social media there seems to be an endless feed of graphic videos depicting violent police encounters. From a purely legal perspective, attorneys know that behind each image is a potential lawsuit, and in front, looking on, is a potential juror.

That is why civil rights attorneys expect cities and towns across the country will see a growing number of lawsuits and payouts in the coming years to those claiming to have been the victim of civil rights abuses by police.

"The movements overall are helpful in bringing to light what we civil rights attorneys and defense attorneys have known for some time—that there are a lot of problems with the system, where officers can abuse citizens and get away with it," Mincey Fitzpatrick Ross attorney Riley Ross said. "When you have a movement that is motivated by video evidence, it helps bring to light the reality that officers do abuse their power, and that will of course help to tell the story that we as lawyers need to tell."

Some municipalities have already seen an uptick in civil rights litigation. In Philadelphia, claims for malicious prosecution, false arrest, false imprisonment and overturned convictions have already been on the rise.

According to data The Legal recently obtained, payouts for those claims over the past two years are more than double what the city paid out in the eight preceding years combined.

Data obtained from Philadelphia shows the number of lawsuits settled in a given year and the amounts the city paid out in settlements—all stemming from claims for malicious prosecution, false arrest, false imprisonment and overturned convictions.

But the recent wave of protests focusing on racial justice and police brutality—and the attendant media coverage—is likely to drive new civil lawsuits. Those arrested and injured during the protests may seek to sue the city, while at the same time, images potential jurors have been inundated with may be eroding the benefit of the doubt that juries had long given police, Kairys Rudovsky Messing & Feinberg attorney David Rudovsky said.

"People for years thought, perhaps to get police protection, you have to give police whatever discretion they wanted to exercise. I think that's changing," Rudovsky said. "I think people are getting a much more realistic view of the problems in policing and how policing can be abused."

Civil Rights Litigation Trends

In Philadelphia, litigation and settlements have been on the rise in recent years, which observers say could be attributed to multiple factors.

According to data obtained by the City Law Department, Philadelphia has paid out nearly $40 million on malicious prosecution, false arrest, false imprisonment and overturned convictions claims between 2010 and 2019. The numbers show that, between 2010 and 2017, the city paid out an average of less than $5 million per year, but those payouts jumped dramatically to $15.4 million in 2018, before falling slightly to nearly $11 million in 2019.

The vast majority of the increase is due to settlements stemming from overturned convictions. According to the numbers, that accounts for $12.85 million in 2018 and $5.56 million in 2019. It also added $1 million to the $2.1 million the city paid out in 2013.

According to Rudovsky, who has filed numerous civil right suits against the city, Philadelphia has a "terrible history of wrongful convictions," which he attributed to "systemic problems" of obtaining false confessions, using misleading identification procedures, poor forensics and systematic withholding of exculpatory information about people.

However, the increase in settlement figures was felt in nearly all categories.

Data obtained from Philadelphia shows the amounts the city has paid out each year to settle claims stemming from malicious prosecution, false arrest, false imprisonment and overturned convictions.

In 2017, the city saw a spike in false arrest payouts, totaling more than $3 million paid to litigants. The peak in payouts for false imprisonment claims came in 2018, with the city paying more than $200,000. Malicious prosecution claims cost the city more than $4.6 million in 2019—much higher than any year in the previous decade. And overturned convictions, which saw only one claim between 2010 and 2015, ended up costing the city more than $18 million by the end of the decade, including $12.8 million in 2018 alone.

History indicates that large-scale clashes between police and protesters—which Philadelphia experienced when it played host to national political conventions in 2000 and 2016—can trigger litigation, and lead to increased costs for local governments. Philadelphia, for instance, saw a large increase in settlements in 2017.

Payouts for overturned convictions are likely to see an increase in Philadelphia in the coming years, in large part because of new efforts by the Philadelphia District Attorney's Office to review and overturn potentially problematic convictions. So far District Attorney Larry Krasner's office has overturned 14 convictions during his 18-month tenure.

Krasner's office has also shown a willingness to prosecute police officers for alleged misconduct, most recently charging a Philadelphia police officer with assaulting protesters.

And that willingness to review old cases and prosecute potential police misconduct could further spur litigation, as well, observers said.

Protest Effects

Observers expect there will be an uptick in litigation simply because the protests have put a lot more people in direct, and confrontational, contact with the police.

According to Teressa Ravenell of Villanova University's Charles Widger School of Law, who focuses on civil rights litigation and police conduct issues, wrongful arrest, false imprisonment and malicious prosecution are typically the more difficult cases to make, as opposed to excessive force claims, because they often center around whether the officer had probable cause, which, Ravenell said, is a low standard.

However, she said, especially when it comes to large protests, complications can arise because officers must have specific knowledge of an individual's conduct before making an arrest.

"When dealing with huge crowds it becomes a lot harder to sort out who's doing what," Ravenell said.

Along with the facts of a given case, settlements can also be driven by the size of the law department defending the police, Ravenell said. With some claims, the cost of litigation alone is enough to drive up the number of settlements, especially in instances where there is a deluge of claims.

"We're going to see so many more cases, unless they plan on increasing the size of their staff, I don't know how they're going to handle the volume of it," she said.

Ravenell noted that civil litigation provides a fundamental service to the public in making sure constitutional violations can be addressed. However, she said it has its limits when it comes to putting the pressure on police departments to make reforms.

She noted that law departments slammed with litigation over specific tactics can only suggest those tactics be changed and have no power to force departments to address problematic practices. Also, she said, culpable officers rarely have to contribute to the settlements, but instead those costs are borne by the taxpayers.

"Ironically, the ones being injured are paying for the injury," she said.

Minds of Jurors

Unlike the numerous other protests that have arisen out of high-profile violent encounters with police, the most recent movement has seen increased activities in the rural reaches of the country.

According to Ross, that indicates the protests might have the most significant impacts on civil rights litigation handled in federal court. Juries in those jurisdictions, he said, are drawn from a wider swath of the state, including rural counties where jurors are typically seen as less sympathetic.

"When video evidence or movements of this sort help bring to light what's happening and what can happen, we hope it will help to open up the minds of the jurors to hear these stories we are presenting to them," Ross said.

That could in turn impact the way lawyers in more urban and rural counties feel about their chances of bringing a civil rights case, which could also lead to more of these lawsuits being filed, Ross said.

"That's going to open up their minds as to how they assess the case, what might be worthwhile and whether or not its winnable," he said.

Despite the protests appearing to connect with a much wider audience, and even spurring legislative changes at the state and federal level, the latest movement has not been without its push back.

But Ross said he wouldn't be worried about any backlash.

"If the idea that people, in this instance Black people, shouldn't be killed by police in a manner where they were unarmed and not showing a threat, if that's polarizing enough to make a juror be adverse, hopefully you're going to be able to discern that from jury selection," Ross said. "I wouldn't be concerned. As long as I'm fighting for the rights of others so they can have their civil liberties and rights upheld, I can't imagine a backlash that would outweigh that."