April 28, 2012

Where's the punitivity in that?

This guy was attacked (Tased and beaten up) by Portland police who mistook him for a graffitist as he walked home from a night of bowling. Four years later, he wins $250,000 in damages in a federal suit. The cops involved are still on the job, naturally. Since taxpayers, and not the officers, will pay the tab, there's little if any disincentive, on the ground, for repeating this process ad infinitum, which is without a doubt exactly what will happen. We haven't heard the last of Tasing and beating up suspected graffiti artists in Portland, OR, I reckon. Nothing unusual there -- that's the system we've got.

Incidental to this federal case, though, I assume, is this feature of Oregon law on the "distribution of punitive damages" cited by Radley Balko:

"60 percent of punitive damages awarded in suits like this go not to the brutality victim, but to a fund for crime victims. And another 10 percent goes to . . . a fund for Oregon state courts."
It's there in black and peach. So, apparently, the state (i.e. the perpetrators) gets a ten per cent commission on any judgment against it, while the victim only gets a small fraction of the total. Talk about screwed up incentives!

As for the 60% in the "criminal injuries compensation account," how does that work? Compensating criminal victims seems like a fine idea (if that ever actually happens) and I can see nothing wrong with establishing a fund for it. But it's a bit much, surely, for the state to fund the fund by stealing from punitive damages assessed against itself? Where's the punitivity in that? You know, I just sort of assumed that damages in cases like this actually went to the victim. It's almost as though the state is trying to discourage people from filing lawsuits against it. Even if that is the real reason, what is the stated rationale for depriving the victim of damages in his own case? How common is this sort of arrangement among the states, anybody know?

My other question concerns this:

During the trial, the city’s attorney tried to use Halsted’s classic kung fu film collection against him, saying it proved he was violent.
Of course that's ridiculous, though, again, a pretty common tactic, i.e. trying to use someone's "stuff" against him. But my question is, how did the city's attorney even know about his classic kung fu film collection? Did they search his apartment? Can they? I assume not, but who knows? If not, how did his stuff even become an issue concerning the question of whether police were justified in Tasing and beating him up?

I am realizing how little I know about the process of this kind of case, which up to now I'd thought was pretty straightforward. Answers, comments, and insights will be over-reacted to below.

Posted by Dr. Frank at April 28, 2012 06:49 PM

I've got nothing. But can the lawsuit winner get a payment from the fund for crime victims? That would help, maybe.

Posted by: Bill at April 28, 2012 08:02 PM

What would really help, though, would be some penalty, anything at all, applied to the actual malfeasants, e.g. the police. Most likely, this guy was punished with paid leave and high fives from his fellow officers. 30% to divide between victim and lawyer is outrageous (and I wonder if the jury knew about the 70/30 perpetrator/victim split when they voted for those amounts.) It's something though.

How about: the victim gets to choose between whatever fraction of damages is offered to him, on the one hand, or, on the other, the opportunity to Tase and beat the hell out of the perpetrator(s): maybe then the state might want to sweeten the pot a little, like maybe 50%?

Posted by: Dr. Frank at April 28, 2012 08:26 PM

I just wanted to point out that the case deals with several different levels of government that run independently with different forms and methods of funding.

state (i.e. the perpetrators)

Actually, the City of Portland who provides the funding for Portland Police Department are the perpetrators. Because of the City Police Department's actions, the State Court system is reimbursed for their time/money spent.

A Google search easily reveals Dan Halstead - Search warrants are used in criminal cases.
Discovery is a tool that is welcome on both sides - the Kung Fu is an obvious attempt to distract the real case.

People often become frustrated and confused when cases go to civil opposed to criminal. Cases like this will move to civil for monetary compensation,
and can move much more quickly than criminal. The OJ Simpson case is a perfect example focusing on the amount of evidence needed to find at fault or guilty.

Posted by: Ant at April 28, 2012 10:33 PM

"Since taxpayers, and not the officers, will pay the tab, there's little if any disincentive, on the ground, for repeating this process ad infinitum, which is without a doubt exactly what will happen. We haven't heard the last of Tasing and beating up suspected graffiti artists in Portland, OR, I reckon. Nothing unusual there -- that's the system we've got."

It's funny you mention that. I often find myself lamenting over the literally trillions of dollars of property damage and lost wages resulting from the mind-boggling amount of person/property crime we've seen committed by 3-4% of this country's population in the last 50 years.

Given the fact that certain of our 'countrymen' view cycling through the penal system as a fact of life, and therefore as nothing negative whatsoever, and also since taxpayers and victims, and not the criminals, will pay the tab of pain/suffering/death/property loss, "there's little if any disincentive, on the ground, for repeating this process ad infinitum, which is without a doubt exactly what will happen"--and is happening.

But hey.. "that's the system we've got."

I should add that, not only do certain of our 'countrymen' view prison as a non-negative, but for many it's a downright positive.




Posted by: MJ at April 29, 2012 04:47 AM

I hear ya, Ant, but various state entities merely moving 70% of the money around amongst themselves still doesn't sound "punitive" enough to me. I'd understand the logic of making the state the arbiter of such funds when the judgement is between or among citizens, but makes a lot less sense when the government itself is the losing defendant. Anyway, my question remains: how common is this in various states? (Further, does it apply to this guy, since it was a federal suit?) I think this isn't something that is generally known. I sure never knew about it, and, naif though I may be, I find it to be a shocking invitation to corruption as well as, like I said, a poor incentive structure.

Also, I'm not sure what I'm supposed to learn by googling "Dan Halstead": I just get a whole lot of similar articles about this case, and the ones I've seen don't spell out the circumstances under which his belongings were searched. I didn't read them all; maybe you could point me to a good one. So my question on this remains as well. I would guess they got a warrant to search his stuff while they were trying to figure out a way to railroad him for vandalism, right? I also have to assume that no evidence pertinent to the suspicion that he was the graffiti guy was turned up, or else they would have charged him. Is it really the case that the government can use the results of such a search (clearly unrelated to any crime that was ever alleged) against anyone who dares to bring suit against it? Obviously it was a distraction, as you say, but it's a potentially intimidating one. (And hardly "welcome to both sides," I'd say, unless Mr. Halstead were given the power to conduct a SWAT raid on the officers home and inventory his DVDs, love letters, pornography, etc.) Again, that seems like an invitation to corruption and a terrible incentive structure.

I don't know what would make punitive damages punitive enough to discourage, genuinely, this sort of behavior but it seems to me they'd need to be a whole lot more punitive than they are.

Posted by: Dr. Frank at April 29, 2012 05:12 PM

Oh wait, Ant: are you saying that the city's attorneys merely googled "Dan Halsted" to find out about his interest in Kung Fu movies, and built their "case" thus? That's extremely weak, sleazy, pathetic, and not in the public interest. They should have just paid the two dollars, especially since paying the two dollars doesn't seem to involve anybody having to pay anybody anything, not really.

Posted by: Dr. Frank at April 29, 2012 05:44 PM

I hate graffiti with the white-hot heat of a thousand suns. I really do.

That said, unless you catch somebody red-handed, even if the guy's carrying a backpack of spray paint, you can't do much but paint over it. It's not illegal (yet) to carry spray paint. Even if you want to beat the idiot who tagged your brand new professionally made sign to a bloody pulp, and I would, oh I would, it's more trouble than it's worth.

Unless you're a cop in Portland, I guess.

Cops here, and I mean all eight of them, don't give a shit.

Posted by: Lost My Cookies at April 30, 2012 04:37 PM