08-30-2016, 03:49 PM
http://www.indystar.com/story/opinion/columnists/suzette-hackney/2016/08/27/hackney-case-civil-rights-worth/89431286/
Quote:Hackney: A case where civil rights are worth $1
SOUTH BEND — DeShawn Franklin, a slim, soft-spoken young man, hops on a city bus most days to travel 4 miles to the University of Notre Dame campus, where he works setting up equipment and moving furniture.
When he’s home, he helps care for his disabled 83-year-old father, who uses a wheelchair. He spends time with his baby niece. In many ways he has taken on the role of family provider.
And in many ways his future at age 22 is promising. He’s not certain where he wants life to take him professionally, but he’s wise enough to know a general studies degree from Ivy Tech Community College is a necessary step for him.
Yet there’s one night from his past that continues to haunt him.
It’s the night four years ago when three police officers entered his family’s home without a warrant. They rousted him from the bed where he slept. They punched him six times: three times in the face and three times to the body. They used a Taser on him. Then they loaded him into a squad car in view of the neighbors.
All because of a case of mistaken identity. All because he wore dreadlocks.
Even South Bend’s mayor and police department acknowledge that the officers that July night in 2012 used excessive force and violated the civil rights of Franklin and his parents by entering the house without permission. A federal jury in Fort Wayne agreed this month, determining that the officers were liable for unlawful entry and unlawful seizure.
But then another maddening thing happened: The jury decided that those violations of the Fourth Amendment were worth only $1. Yes, $1.
Each police officer who ignored the U.S. Constitution was ordered to pay a dollar to DeShawn and to each of his parents for each rights violation. The family was awarded an insulting total of $18 in damages.
It is their only compensation for a night that left a then-18-year-old high school senior bruised, embarrassed and afraid. And his parents wondering about whether a poor black family can find equity in the American justice system.
“There were hopes that the system would work, and the system failed them miserably,” said the Rev. Mario Sims, a South Bend pastor and activist who monitors police and government actions in the city. “The system determined that, yes, there was a violation of their constitutional rights, but essentially so what? They didn’t value their rights.”
Adding to the insult: The family has been told by their attorney that the city wants them to pay about $1,500 in expenses incurred by the city in defending the case. Because the trial was held in Fort Wayne, those expenses include the three police officers’ hotel room bills and mileage.
Where is the justice in that?
An obscure federal rule allows the city to collect because the jury award is less than a settlement offered to the family before trial earlier this year. But an attorney for the city said the family’s attorney, not the Franklins, will be asked to pay the officers’ expenses.
“I take this personally,” South Bend Mayor Pete Buttigieg told me. “This case is something I’ve been reflecting on a lot. I think every mayor, certainly every mayor of a diverse community, knows the relationship between police and that community is one of the most important and sensitive things that we have to get right.
“But this case has proven to be an exceptional succession of errors, misfortune and mistakes,” he said.
DeShawn, who does not have a criminal record, is reticent to talk about the incident. It’s tough to be known in the neighborhood as the kid who was ripped out of bed and beaten up by police. I wanted to tell DeShawn’s story, so IndyStar respected his wishes to not publish photographs or video of his face.
“It happened to me so when I step out in the public that draws attention to me that I don’t want,” he said.
This account of the evening is based on court records, police reports, interviews with attorneys who handled the case and with the family, and a South
Bend Police Department internal affairs investigation report.
Between 2 and 3 a.m. July 7, 2012, police responded to a domestic violence call a few blocks from where the Franklin family lives. A 31-year-old woman told Officer Eric Mentz that her boyfriend had come home drunk and assaulted her, striking her in the eye with his fist and biting her.
The woman gave Mentz a description — a slim black male with dreadlocks — of her boyfriend, Dan Franklin, who is DeShawn’s older brother, and told the officer that Franklin was headed to his parents’ house. Mentz relayed the information over his radio to other officers on patrol.
Officer Aaron Knepper, in his patrol car, radioed back that he was in the area and that he had spotted the suspect. The man Knepper saw took off running.
He called a K-9 unit to the area to help find the suspect.
A police dog tracked Dan Franklin’s scent to the back door of his parents’ home. Three officers, Mentz, Knepper and Michael Stuk, arrived at the house and requested that a dispatch operator call the home. The dispatch operator reported that the woman who answered the phone was belligerent, uncooperative and denied having a son.
Later, after they invaded the Franklins’ home, the officers learned that the dispatch operator had called a wrong phone number.
Operating with the inaccurate information they were given by dispatch, the officers, with their guns drawn, knocked on the Franklins’ door. Vivian Franklin answered and the officers demanded to know who else was in the house with her: “My son and my husband,” she said, according to court records.
Vivian Franklin was told to stay on her porch while the officers entered the house. They first saw her husband, Dan Franklin Sr. and demanded that he stand up. When he explained that he could barely walk, they ordered him to remain in his bed. They then entered a bedroom and saw a black man with dreadlocks (DeShawn) lying on his stomach on the bed, a pillow over his head.
Mentz thought it was the person they were looking for based on hairstyle and size and shared his belief with the other two officers, according to a statement by the officers in the court records.
The officers yelled at DeShawn, but he didn’t respond. Knepper concluded that the man was “fake-sleeping.” One of his arms was exposed, and as Mentz attempted to hold his arm and cuff him, DeShawn jumped up. He lunged at Mentz and Knepper and grabbed at Mentz’s vest and gun belt. Mentz punched DeShawn three times in the face.
Vivian Franklin, outside on her porch, heard her son screaming.
“Momma!”
“Mom, come get me!”
Officers said DeShawn continued to struggle and pull away. Knepper used his Taser on DeShawn and then punched him three times near a shoulder blade. After subduing DeShawn, the officers cuffed him, took him outside and put him in a police car.
“The cop whose car I was in asked me did I know what I was going to jail for? I told him ‘No,’” DeShawn told me. “And then he said I matched the description of a person that they was looking for because of my hair. I told them that this hairstyle was popular right now and a lot of people have it, and I can’t go to jail for something I didn’t do.”
The officers, finally realizing they had detained the wrong person, called their supervisor, Sgt. Dan Moryl, and explained the situation. Moryl advised the officers that they should release DeShawn.
The officers took DeShawn back into his house and apologized to him. They also acknowledged that his actions were appropriate for a person who was startled from sleep in a darkened room by three armed strangers, according to Knepper’s police report.
“It became apparent that there were indeed physical similarities between DeShawn and Dan, but ultimately DeShawn was truly sleeping and only acted as he did out of shock/surprise,” Knepper wrote.
Dan Franklin, DeShawn’s brother and the man who police were looking for that night, was never arrested or charged for domestic violence.
The family filed a civil suit in February 2013, accusing the officers of excessive force, unlawful entry, false imprisonment, false arrest and battery. Johnny Ulmer, an attorney from Elkhart who spent 20 years as an Elkhart County Sheriff’s Department deputy, took on their case pro bono. The city hired Peter Agostino, an attorney who has represented plaintiffs and defendants in federal civil rights cases for nearly 30 years, to represent the officers, who are still employed by the South Bend Police Department.
Agostino said the city made four settlement offers to the Franklin family. The family said they were offered $15,000 to settle. Agostino said higher amounts were offered, but declined to say how much higher. The family opted for trial, and the jury, one African American and five white individuals, reached its verdict Aug. 1.
Agostino called DeShawn Franklin “an outstanding young man” and acknowledged that some compensation was warranted. During trial, though, Agostino said the plaintiffs failed to prove damages beyond the rights violations. For example, no wages were lost or medical bills incurred.
Agostino said DeShawn and his family were not served well by their attorney, who should have told them to take the settlement.
Ulmer disputes that. He said cases of this magnitude can garner awards between $100,000 and $300,000. Ulmer acknowledges that the city made four settlement offers, and that during mediation city attorneys set a settlement range of $10,000 to $100,000. But he said they never budged from the $10,000 amount.
“If they would have put an amount on the table that I felt was appropriate, we would have settled it,” Ulmer said. “What happened that night, the physical abuse that DeShawn suffered — they were slapping my clients in the face with the offer they put out there.
“Three white officers went into a black family’s home and violated their civil rights — that is what happened here,” Ulmer said. “In my opinion, if this had been a white family, this would not have happened.”
The officers did face department discipline for their actions that evening, including written reprimands, according to Kevin Lawler, a spokesman for the city.
The officers also received additional training on Fourth Amendment rights, Lawler said, and the South Bend Police Department developed a new procedure manual and provided ethics and diversity classes for the entire force.
But the question remains: How could the jury award $1?
Legal experts I talked to said it’s difficult to assign a monetary value to intangible suffering. Jurors also were instructed at the close of testimony that they could award as little as $1 if they did not see evidence of more damages.
Still, Richard Waples, an experienced civil rights lawyer in Indiana, was shocked when I told him about the Franklins’ victorious case and the jury’s award.
“Really?” he said. “That just doesn’t seem right.”
Waples then explained that attorneys often request that the judge not provide that instruction to jurors because it can put a dollar figure in their minds.
Ulmer, the Franklins’ attorney, didn’t make such a request. The jurors, who were polled after reaching a verdict and judgment, indicated to U.S. District Judge Theresa Springmann that they heard no evidence to justify compensatory damages.
Ulmer said he is prepared to pay the $1,500 in trial expenses, either from attorney fees he hopes to recoup or from his own pocket. Federal court rules permit attorneys who represent clients pro bono and prove their case in court to ask the judge to grant payment from the losing party. In court records,
Ulmer stated that attorney fees incurred by the Franklins totaled $168,430.
But for DeShawn Franklin, his meager award is another blow, another reason to mistrust the police and the system.
“I have no value on the face of Earth, just as a person,” DeShawn said. “We all bleed the same, so how could you value my family’s constitutional rights at a dollar but maybe elsewhere it could be $5, $10, $100,000? It just shows no respect for us.”
But Buttigieg, South Bend’s mayor, wants DeShawn and his family, stung by the encounter with city police officers, to know that he and the city “believed that their rights were worth more than a dollar.”
“This case has touched a nerve related to much bigger issues,” Buttigieg said. “I regard every resident of our city as equally worthy of respect and concern. I want DeShawn to feel and know that this is a city that wants him to thrive, and that we take his rights and every one’s rights very seriously.”
Still, even the city's attorney, Agostino, said he can understand the family’s frustration.
“On an emotional, human level, putting the law aside, I can relate to what they’re feeling,” Agostino said. “It can feel like sometimes there is no justice. All I can say is that we respect them for stepping forward and bringing the issue out. I think DeShawn is an awesome young person, and I don’t want him to lose faith in the system because he had one bad experience.”
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