Allegations of police misconduct and subsequent criminal charges have grabbed headlines nationwide putting a spotlight on how members of the law enforcement community engage with members of the general public.
In many cases alleged police misconduct can lead to a hefty lawsuit against a department or municipality. And, in cases where a plaintiff is awarded a large cash settlement — it’s the taxpayer who generally ends up paying the bill.
Since 2009, Scottsdale police have recorded 111,199 arrests — but only three of those have led to civil claims against the actions of the Scottsdale Police Department. Those three claims, however, have cost the city $14,564,900 in out-of-court settlements.
The information was gathered as part of a public records request made by the Scottsdale Independent. The request asked for all records indicating an out-of-court-settlement payment from a lawsuit, complaint or any other legal action brought against the city of Scottsdale as a result of perceived police misconduct over the last five years.
The original request sought 10 years of data. City officials say records in these matters are only kept for the last handful of years.
The three civil claims involve an allegation of an illegal strip search of Heather Tonarelli in 2008; the death of David Hulstedt in 2008 and the death of John Loxas Jr. in 2012.
According to Scottdale Police Sgt. Ben Hoster, no Scottsdale police officer was charged with any criminal act in any of the cases.
The civil claims include:
- Records show in 2008 Ms. Tonarelli sued the police officer who conducted the search, the police chief and the city for the amount of $1 million. The suit was settled out of court with a payment of $315,000.
- On Nov. 7, 2008 Scottsdale police were called to the home of David Hulstedt after receiving a 9-1-1 call where “events unfolded after the police arrived, which resulted in the shooting of Mr. Hulstedt,” records show. The shooting death resulted in a $40 million lawsuit against the city and several Scottsdale police officers ultimately resulting in an out-of-court-settlement of $9,999,900, records show.
- John Loxas Jr. was shot and killed by Scottsdale police Feb. 14, 2012 after a 9-1-1 call was placed from a neighbor who witnessed Mr. Loxas Jr. walking through his neighborhood with a gun and threatening people, records show. The Loxas family sued the city and several Scottsdale police officers for $7.75 million. The suit was settled out of court for the amount of $4.25 million, records show.
“No officer was ever charged with anything criminal in any of these matters,” Sgt. Hoster said in an Aug. 4 phone interview. “This involves civil court where the level of proof is different. Out of all of the shootings, we have not arrested any of our officers.”
Records show the officers involved in each incident are no longer with the department.
“These are civil courts, civil proceedings and civil findings that have not ascended to the criminal court level,” Sgt. Hoster explained. “The county attorney has said we have been justified in each of the shootings, but when it comes to lawsuits it is a gray area — it is not black and white.”
The blame game
Retired Scottsdale Police Det. Jim Hill says the actions of police officers are often scrutinized — and sensationalized.
Mr. Hill doesn’t believe police misconduct is a widespread problem.
“Of the hundreds of thousands of arrests made every year, we are talking about a tiny fraction that get sensationalized. And, an even smaller fraction of that is substantiated.”
Mr. Hill has been in law enforcement since 1987 and was a Scottsdale police officer from 1996 through May of 2015 when he retired from the department as a detective.
“It (Scottsdale) is a very good department. I enjoyed working there and was very proud to work with the men and women there,” he said Aug. 4. “Whenever I would do trainings at different departments I would always receive compliments on my guys.”
The life of a patrol officer is strenuous and unrelenting, Mr. Hill explains.
“We don’t really know what we are walking into. When the radio call comes in all we know is there is a man with a gun,” he said. “And, you don’t see things with your eyes, you see things with your brain.”
Police officers are supposed to keep the peace and eliminate threats to the general public. At times deadly force is necessary and justified, Mr. Hill contends.
“I have had a shooting. A guy pinned me in the corner with a knife and I killed him,” he recalled of his time as a police officer in Pennsylvania. “In some cases I think they don’t understand that I am going to do this. We are trying to protect the public.”
Police officers are always in harm’s way.
“I walk up to the car at a traffic stop, it is Christmas morning. I don’t know what is in that box,” he explained of simple police interactions. “You have to make sense of the situation and calm what is going on.”
Shooting incidents typically are determined by human factors, which are unpredictable, Mr. Hill says.
“There are human factors (involved) every time and humans are unpredictable,” he said. “We break it down like game film. What did you do right and what did you do wrong? It’s the initial knee-jerk reaction that’s dangerous.”
Emotions and moral reasoning play a significant role in the day-to-day tasks of a police officer in any department, in any state of the union, Mr. Hill says.
“It’s the call,” he said of a typical workload. “Are you ready for the next call? Even something like a dead baby; are ready for the next call? For cops, it is go, go, go. It is hard to keep your emotions separate.”
The cost of civil actions
The payment of civil actions against the city of Scottsdale are paid through private insurance carriers. City officials say the municipality is liable up to $2 million for these matters — while costs can be recouped for those payments through the primary tax rate.
A 1986 Arizona Attorney General opinion on Town of Flagstaff v. Gomez concludes that if a judgment arises out of a non-collusive tort, its satisfaction does not fall within the expenditure limitation of a municipality. However, if claims are a result of a breach of contract, it must be considered a part of the municipality’s expenditure limitation, which is ultimately set by the Arizona Legislature.
“Arizona cities are permitted — but not required — to add tort claim payments to their next year’s primary property tax levy,” said Scottsdale Councilman David Smith. “Tort claims can arise from any liability claim/litigation against the city and include alleged police misconduct, liability for auto accidents, liability for injuries incurred through city negligence of infrastructure.”
Prior to being elected to council, Mr. Smith served as the city’s treasurer, which is a chartered position within the city of Scottsdale serving at the pleasure of Scottsdale City Council.
“When the overall property tax levy is discussed with council — and presented to the public during a Truth in Taxation hearing — as part of the annual budget cycle, the aggregate of these individual decisions is added to the tax levy,” he explained of the municipal process.
“That one-time levy is, of course, deleted the following year.”
Due to the municipality’s private insurance carriers, the city of Scottsdale is only liable for $2 million of claims against the city, Mr. Smith points out.
“The maximum city cost of any individual tort claim (i.e. the city’s insurance deductible) is $2 million,” he said. “Individual settlements in excess of the deductible are not immediately a cost to the city and are not, therefore, includable in the primary property tax levy. The phrase ‘immediately a cost’ is a caveat reminder that the city’s history of losses and loss prevention measures are always factors in developing future insurance premiums.”
Whether or not a city fights a claim or settles out of court all depends on how much the claim will ultimately cost the taxpayer, Mr. Smith says.
“Any claim below the deductible is decided on the basis of what is the lowest probable cost to the city/taxpayers,” he said. “Each case is individual, but the considerations are (a) the probability of prevailing in court in the face of litigation, (b) the probable cost of litigation (c) the precedent a settlement (or loss in court) might have on the city’s future successful defense of similar claims.”
The decision is often presented as a recommendation to Scottsdale City Council as a typical settlement agreement and must be approved by Scottsdale City Council.
“These factors are initially considered by the city’s legal staff (and outside legal counsel, if involved); the recommendation is then reviewed with a broader audience of city staff, including representatives from risk management, finance and operations; ultimately, a recommendation is made to council and discussed/approved in public session.”
“The same factors are considered for any claim above the $2 million deductible, except the insurance carrier (who is exposed to loss for the settlement in excess of the deductible) also has a voice at the table.”
Terrance Thornton can be contacted at 623-445-2774 or at email@example.com