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Justine Damond

The expected civil suit in the death of Justine Damond has been filed on behalf of Damond’s fathe, John Ruszczyk by his attorney Robert Bennett, a lawyer experienced in successfully suing the Minneapolis Police Department.  The Star Tribune reports:

The family of a woman shot and killed by a Minneapolis police officer a year ago plans to file a lawsuit Monday that Twin Cities attorneys predict could lead to a multimillion-dollar payout from the city.

Robert Bennett

As I’ve noted, it is unlikely this case will go to trial.  In a progressive city like Minneapolis, it is possible, however, that the city might try to prolong the case until the criminal trial is over in the hope Mohamed Noor, the former MPD officer that killed Damond, might be acquitted.  Civil and criminal trials do not directly influence each other, but an acquittal might be used as a bargaining chip to try to save money.  On the other hand, the city might work to settle as quickly and cheaply as possible, fearing a conviction might increase any payout.

Lawsuits alleging police misconduct sometimes go to trial, but Minneapolis has settled some of its most expensive cases, concerned that a jury could hand it greater punitive damages plus even higher legal fees. The city is self-insured, so the payout would come from city coffers.
Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said the main question in the lawsuit will be whether Noor used reasonable force.

Daly said the suit Bennett plans to file is based on a federal statute commonly used in cases in which a police officer is accused of violating a person’s constitutional rights.

Whenever a state agent denies someone his or her constitutional rights of life, liberty or the pursuit of happiness without due process of law, Congress has authorized the person to sue that agent — in this case, Noor, he said.

‘In this case, they deprived her of life,’ Daly said.

And what would such a life be worth?

Twin Cities lawyers have long expected that a suit would be filed and that the payout would be large, even in the $10 million range.

Bennett, a partner at Minneapolis law firm Gaskins Bennett & Birrell, has won millions in police misconduct settlements.

‘If [Bennett] didn’t think he could meet these constitutional standards, he wouldn’t bring [the lawsuit],’ attorney Randy Hopper said Sunday.

Hopper said that in these cases, ‘There’s no limit on the amount of money you can get the government to pay.

Additional information about the suit and the possibility of a large payout was provided by The Australian:

Mohamed Noor

The complaint also accuses both Mr. Noor and Officer Harrity of conspiracy after the shooting. It says Officer Harrity, who was in the car with Mr. Noor, changed his story of the incident only after consultations with his lawyers. It says that after speaking with his lawyer’s officer Harrity added that the heard a voice and a thump and caught a glimpse of head and shoulders outside the car. The complaint alleges that he did this ‘to conveniently provide an irrelevant and subjective basis for his ‘fear.’’

Others named in the civil complaint include former police chief Janet Harteau the then assistant police chief Medaria Arrandondo as well as the City of Minneapolis.

The previous largest payout in Minnesota for police misconduct was a $US4.5 settlement in 2007 to a police officer who was seriously injured by another officer while on duty.

Lawsuit Details:

The lawsuit–available here–provides details previously unavailable.  One presumes these details come from police reports unavailable to the public, but not to Bennett.  Lawyers often engage in exaggeration in such matters, but Bennett’s contentions seem well within the realm of probability.

1) The neighborhood where Damond died was a low crime area, with only 10 crimes reported in June, and 11 in July of 2017.  The officers had no general reason to fear danger.

2) MPD training for new recruits takes only 29 weeks, “a condensed, expedited path for individuals to become police officers.”

3) Four citizen complaints were filed against Noor in only two years, and two were filed against Matthew Harrity in the little more than one year he had been a MPD officer.

4) Noor and Harrity were hired with only a single psychological test.  The suit argues “multiple tests” should be used, and prior to 2012, the MPD used five.

5) Dr. Thomas Gratzer was hired to screen candidates in 2012, but lacked a state mandated credential and had no experience screening police candidates. He reduced the number of screening instruments from five to one.

After Damond’s death, the MPD immediately hired a new psychological screener:

6) The MPD has a policy requiring the use of body cameras, but officers–including Noor and Harrity–have not followed the policy and suffered no discipline.  The suit argues they purposely did not comply with the rules.

7) The suit confirms that the officers were sent to the call with only this information: “female screaming behind building.”

8) Harrity admitted to “remove[ing] the safety hood of his holster,” though the suit does not explain precisely when he did this.  This is common in police work.  Most officers do not practice drawing from a secured holster, particularly while sitting in a vehicle, so they do what they can to make drawing easier.

9) They traveled down the alley “With lights off, computer dim, spotlight on, but the BWC’s in a mode ensuring no data would be preserved…” As I’ve previously noted, this is the lazy cop’s way of approaching the call.  Driving with a spotlight on, rather than stealthily walking the alley on foot does not in any way support the idea they were wary of an ambush or believed they faced danger.

10) As they neared the end of the alley, they entered a “code 4” in the vehicle’s computer, indicating: “a situation is under control and responding squads that have not yet arrived may clear.”  In other words, they found nothing, and were about to go back into service.

11) Harrity accelerated to the end of the alley, and activating his headlights, saw a bicyclist crossing their path.  Harrity told Noor as soon as the bicyclist was clear, they would leave.  It was at this point Noor “fired his duty weapon across Harrity’s lap, out the open driver’s side window of squad 530 fatally striking Justine at center mass–killing the very 911 caller who had requested help from the officers.”

12) The suit argues Harrity did not recognize Damond as a threat, and accordingly did not fire.

13) Body camera footage from responding officers–and Noor and Harrity who turned their cameras on after leaving their vehicle–did record what happened thereafter, including Harrity’s first conversation with Sgt. Shannon Barnette:

…Harrity told Barnette that he and Noor were on a call and were getting ready to clear and go to another call when ‘she came up on the side out of nowhere’ and ‘we both got spooked.

Harrity told Barnette he had his gun “out,” but “Noor ’pulled out and fired.”

14) Harrity did not tell Barnette he heard a voice or any noise prior to Noor shooting Damond.  These contentions were made only later after Harrity “consulted with his attorney,” the “main attorney for the Minneapolis Police Federation.”

15) Harrity also did not tell Barnette he thought his life was in danger.  This too he said only after consulting with his lawyer.

16) Former MPD Chief Harteau said: “Harrity offered no defense of the shooting and ‘i[t] was clear to [Harteau] that he didn’t know why this happened.”

17) Gunshot residue was confirmed in the vehicle and on both officers consistent with Noor shooting Damond across Harrity’s body.

18) This section of the lawsuit is particularly damning:

This section is even worse, and foreshadows Bennett’s case strategy:

Harrity then checked himself for gunshot wounds, looked right, and saw Noor’s right arm extended toward him.  He said he didn’t see Noor’s gun, looked out the driver’s window and “saw a woman.”  Damond clutched her abdomen and said “I’m dying” or “I’m dead.”

Harrity said it wasn’t until her saw her hands that he didn’t think her a threat and got out of the car.  By then, she would have been collapsing, or collapsed to the ground.  He said when Noor got out of the car, he was still carrying his handgun, and only re-holstered when Harrity told him to do it.

18) Bennett asserted Hennepin County Attorney Mike Freeman had to convene a grand jury because as many as 40 MPD officers–only Noor and Harrity were directly involved in Damond’s death–refused to cooperate.  He said this was the first time in a 19-year career he had to subpoena police officers.

Damond, her fiance Don,(center) and his son, Zach

Final Thoughts:

Remember, gentle readers, that I do not have the reports of the MPD or the Minnesota Bureau of Criminal Apprehension (BCA), nor do I have Grand Jury transcripts. However, the lawsuit provides the most potentially accurate information thus far available.

It seems clear neither Noor nor Harrity were in genuine fear for their safety. Their lazy and incompetent tactics illustrated as much.  They merely rolled down the alley, spotlight on–making their vehicle an easy target–saw and heard nothing, which, considering they were buttoned up in their police vehicle, is unsurprising, turned on their lights and were ready to leave.  In police practice, this is a classic case of “relaxing too soon,” particularly if they had any objective reason to fear for their lives.

It is likely it was Harrity’s accelerating down the alley that caused Damond to approach their car.  She probably feared they were leaving–she was right–and wanted to tell them what she heard.

It is also likely, as I’ve contended, Harrity saw and heard nothing, and was suddenly shocked by the report and gun smoke of Noor’s gun going off essentially in his face.  Harrity claimed the report was like a flashbulb going off.  The weapon was .40 S&W caliber.  That caliber, especially fired in a closed vehicle, is shockingly loud and concussive. He still saw nothing, looked right and saw Noor’s arm extended toward him, looked out his window and saw and heard Damond’s last words, saw her falling, and probably only then realized Noor shot her.  Imagine his horror when he found a small, unarmed blond woman in her pajamas, dying or already dead, shot in the stomach by Noor.

That Noor exited the vehicle gun in hand is indicative of his total confusion.  Harrity’s gun in hand is no better, but it does seem he recovered, to at least some degree, somewhat faster than Noor.  It is likely his utterances to Sgt. Barnette were far more accurate than his later, attorney informed, statements.

Statement of Damond’s father

The lawsuit’s contentions, if accurate, are terribly damaging.  Pre-Trial depositions, and the transcripts of the Grand Jury would be far worse, as would any officer that appeared to be reluctant to testify, or who engaged in perjury.

While anything is possible in a social justice utopia, I’d be surprised if Minneapolis did not settle this case as quickly and quietly as possible, and for an unprecedented chunk of money.

The SMM Damond case archive is available here.