By Justin Fenton and Ian Duncan The Baltimore Sun

BALTIMORE — A group of five Baltimore police officers could have to personally pay out $40,000 after a jury found they acted with “actual malice” in the course of an arrest — a development that prompted a warning Tuesday from the officers’ union and, in turn, a fiery response from the city’s top lawyer.

The Baltimore police union said that forcing officers to pay up personally was a change in policy by the city. But City Solicitor Andre Davis said Wednesday the policy has not changed and officers have potentially been on the hook for decades in such cases.

Davis said what has changed is that he has been more transparent about the policy, which he noted in materials submitted to the city’s spending board in December. Davis said the police union’s memo was an attempt to “stir something up.”

“Unfortunately, as I’m sure you know, right now the city and the police department have an adversarial relationship with the FOP,” Davis said. The city is involved in litigation with the union over pensions and overtime and is in the midst of contentious contract negotiations.

In the case of the five officers — one of whom faces making a $15,000 payout with the others responsible for smaller amounts — Davis said it was possible that he could grant an exception to the rule after further review.

Police union president Gene Ryan said in a message to union members that the city had “generally supported” officers in the past by paying punitive damages as well as compensatory damages awarded in civil jury trials.

Ryan told his members that Davis, a former federal judge who joined the city last year, has changed that policy.

“What this means is that police officers are now required to pay these punitive damage awards, which can amount to thousands of dollars, out of their own pockets,” Ryan wrote. “Since punitive damages cannot be discharged in bankruptcy, the successful citizen can file an attachment against your wages taking 25 percent of your bi-weekly pay check until the amount of the punitive judgment is satisfied.

“Please keep this in mind as you go about performing your duties.”

The issue arose in August when a jury returned a verdict for $147,100 in economic and noneconomic damages in an excessive force suit against five officers, as well as $40,000 in punitive damages, with the jury finding that officers acted with “actual malice.”

Davis said he is only obligated to tell the city’s Board of Estimates about payouts resulting from settlements, not jury verdicts, but that it was the right thing to publicly flag the case. In Board of Estimates documents city lawyers maintained that they were not liable for punitive damages, citing state law. The document says the officer’s own lawyers saw no grounds to appeal the verdict.

Former City Solicitor George Nilson, whom Davis replaced, agreed that there was no change in policy. He said the position of the Baltimore law department for years is that taxpayers are not responsible for paying punitive damages when a jury finds the officers acted with malice. He said such cases arise rarely because the city often settles cases before trial.

“In the past the city law department has appropriately refused to pay malice judgments,” Nilson said.

For instance, Nilson said that in 2006, a Baltimore City Circuit Court jury determined an officer must pay Albert Mosley $44 million because of a 2003 encounter inside a city jail cell that left Mosley a quadriplegic. Nilson said the city refused to pay the multimillion-dollar verdict in the case, and eventually the plaintiff’s lawyers agreed to a $1 million payout.

“We said, ‘You proved malice and we don’t pay for malice,’” Nilson said. “They started coming after the officer’s house and wages and that prompted us to say, ‘OK, the officer is suffering. We took mercy on the officer and we did pay a significant amount.”

Davis said in a lengthy written statement that his policy is “wholly consistent” with state appellate court interpretations of the Local Government Tort Claims Act, “which does not require local governments to pay punitive damages and prohibits local governments from entering into agreements to pay them in all cases.”

Davis said the statute “reflects the ordinary commonsense notion that if government employees are told that no matter how badly they misbehave, no matter how maliciously they inflict harm or injuries on their fellow citizens, their employer will pay for that harm, then we can expect an increase in such harm.

“Employees, including police officers, who no doubt have the most difficult job in government, are not privileged to inflict gratuitous injury on others without personal consequences to themselves,” he wrote,

Davis said officers do not have to pay for their lawyers, and that the city will seek the overturn of punitive damages on appeal in instances where “where counsel for an involved officer believes punitive damages were awarded inappropriately, either because the presiding judge should never have allowed the jury to consider punitive damages in the first place, or because the jury acted on the basis of insufficient evidence.”

He said he also has “made clear that I will consider on a case-by-case basis any officer’s request for indemnification as to a particular award of punitive damages,” which he said is “in keeping with longstanding Law Department policy.”

The union message reverberated among officers, who expressed concern about its potential impact.

The Police Department did not immediately respond to a request for comment.

Lawyers for the union have scheduled a 1:30 p.m. news conference to address the matter.

The case sparking the dispute was filed by two men — Leo Joseph Green and James Green — against Officers Nicholas Chapman, Daraine Harris, Brian Loiero, Marcus Smothers and Nathan Ulmer.

The suit alleged battery, false arrest and violations of constitutional rights stemming from an incident that occurred June 13, 2013, in the 6000 block of Moravia Road in Northeast Baltimore.

The judgment in the case means taxpayers will have paid out more than $1.2 million in two years to settle three cases in which Chapman was a defendant.

Last year, the family of Tyrone West was paid $1 million by the city and state to settle a wrongful-death lawsuit alleging police misconduct and excessive force.

In 2016, a jury awarded Abdul Salaam $70,000 after he filed a civil suit against Chapman and other officers alleging that he was beaten during a July 1, 2013, traffic stop in Northeast Baltimore.

Baltimore Sun reporters Luke Broadwater and Kevin Rector contributed to this article.

©2018 The Baltimore Sun

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