On Monday, the City of Atlanta announced it would settle a wrongful death claim for the family of Rayshard Brooks for $1 million. In June of 2020, amid national outrage following the murder of George Floyd in Minneapolis, Mr. Brooks was shot and killed by Atlanta Police during a confrontation in a Wendy’s parking lot. Later that year a special prosecutor assigned to investigate the incident ruled that the use of deadly force was “objectively reasonable” and chose not to file criminal charges against the officer involved.

If the Use of Force was deemed legally justifiable, why would you settle a lawsuit for the same incident?

Lawsuits surrounding the use of force by law enforcement are commonplace in the United States. More often than not, the States, Counties, and Municipalities against which these lawsuits are filed choose to settle the cases out of court. According to the Marshall Project and FiveThirtyEight, cities have been spending millions on “police misconduct.” Much like most of the mainstream media, their coverage of these lawsuit settlements is far from objective and stained with anti-police rhetoric and the presumption that police acted with malice and ill intent, but their numbers are good.

According to LexiPol, there are five reasons to consider settlement over litigation. Here are the three that I feel are most pertinent in use-of-force cases:

• Agency Reputation
  The fact of the matter is, long before any lawsuits are filed, especially in Police use of force cases, there has been much media coverage. Often the initial media coverage can taint the public view of a case when they present very few facts in such a way that leads viewers/readers to draw preconceived notions. That reputation may also adversely affect how a jury pool views the agency regarding the case.
  
• Expenses
  How much is it going to cost the organization to litigate this case? Beyond the salaries of in-house and contract attorneys, will you need to hire expert witnesses? What about the cost to depose employees of your organization for the case? These things can quickly add up to hundreds of thousands of dollars. It may be more fiscally appropriate to settle the case out of court to save time and money. An example is a lawsuit filed demanding $100,000 in compensation, but it is determined that it could cost more than that to litigate the case in court (which may inevitably lead to a judgment against your organization); it would make more sense to settle than gamble on litigation.
  
• Immunities and Tort Claim Limits
  Except for extreme negligence cases, your organization or its employees are likely entitled to immunity against civil liability. The concept of “qualified immunity” has come under significant scrutiny in recent years but may be applicable in some cases filed in Federal Court. Additionally, state immunity laws vary by jurisdiction and may guide an organization to decide whether to litigate or settle out of court.

Another consideration is the burden of proof standard in civil court is vastly different than that in criminal proceedings. Most are familiar with the legal doctrine of “guilty beyond a reasonable doubt,” which is used in criminal proceedings. According to the Cornell School of Law, “[t]his means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial.” In civil proceedings, the burden of proof standard is a “preponderance of the evidence.” This standard is met when “the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.”

So when the story has been aired repeatedly, often with partial information or in a narrative-driven fashion for months or years before a lawsuit is filed, it’s easy to see how the battle for a municipality is often lost before the fight even begins. With that in mind, the ability to attach non-disclosure agreements to such lawsuits and the fiduciary responsibility municipalities and States have when dealing with taxpayer money, settling a case makes more sense more often than not.

The first paragraph in a Fox 5 Atlanta story about the Brooks shooting reads, “In the midst of a tumultuous summer of protests responding law enforcement killings of Black Americans, an incident in Atlanta caught the nation’s attention.” Regardless of the facts of the case, before disclosing Mr. Brooks armed himself with an officer’s Taser, or any other pertinent facts related to the shooting, they’ve fanned the flames of their readers and skewed their ability to be objective. These same readers will likely be in a potential jury pool should the City of Atlanta decide to litigate that case.

In order to procure more “clicks” and advertisement revenue, the mass media (and local media) have become preoccupied from truth in journalism to ensuring their stories are so sensational people will have to read them.