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Assessing the $3 million settlement in the Amadou Diallo case

By Anthony J. Sebok
FindLaw Columnist
Special to CNN.com

Amadou Diallo
Amadou Diallo

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(FindLaw) -- In 1999, Amadou Diallo -- a black man from West Africa -- was killed by four police officers in the vestibule of his building. Diallo was unarmed, but the officers claimed that they had mistaken the wallet he held in his hand for a gun. (Diallo may have pulled the wallet out of his back pocket because he wanted to show identification, or because he mistook the plainclothes officers for muggers.) The officers shot Diallo 41 times.

Like the Abner Louima case -- in which a suspect endured torture, including sodomy, by police -- the Diallo case served as a stark symbol of the tradeoffs involved in the Giuliani administration's aggressive policing policies. After Diallo's death and the surrounding controversy, the Street Crimes Unit -- the special group to which the officers who killed Diallo belonged -- was disbanded.

Diallo's family filed a wrongful death suit against New York City. Last week -- almost five years after Diallo's death -- the City and his family, agreed to settle for $3 million dollars. (Full story)

However, the Diallo family's lawyer, Anthony Gair, complained that $3 million was too low. And he suggested that "antiquated" New York law had forced the Diallos to accept a much lower number than Abner Louima, who settled his civil suit against the City for $9 million.

Is Gair correct? In this column, I will argue that, to the contrary, this was a fair settlement.

Why the Diallo settlement was properly lower than the Louima settlement

As a descriptive matter, Gair is right. Had Diallo and Louima both taken their cases to trial and prevailed, under New York tort law, Louima would likely have received much greater damages. And the settlements reflected that difference.

But in my opinion, as a normative matter, Gair is wrong: The principles that provide for greater damages in Louima's case are not antiquated or wrong. Instead, they make sense.

That is because each of the two men -- though both alleged they suffered personal injury as a result of tortious conduct -- appears to have been the victim of a different kind of tort.

Louima was the victim of intentional torts. Among other torts, the police committed battery against him -- defined in law as an unconsented touching that causes harm. They also intentionally inflicted emotion distress on him, and falsely imprisoned him.

In contrast, the thrust of the Diallo suit was that he was the victim of negligence. The theory of the suit, at base, was that the officers did not exercise reasonable care when they used their weapons. They shot too fast -- without being careful enough to ascertain that Diallo truly had a weapon in his hand -- and then kept shooting.

Granted, Diallo's race, and the officers' possible racism, may have played a part in their actions -- as many have suggested. But the tort law does not recognize an intermediate category between intentional and negligent conduct -- say, negligence-aggravated-by-racism. Instead, it leaves the race factor to the criminal law, which can punish civil rights violations.

Thus, from the law's perspective, the difference between the Louima and Diallo case was the difference between an intentional tort and negligence. And in New York, the difference between an intentional tort or negligence is huge—it is the difference of punitive damages.

Thus, the only hope Gair had of securing punitive damages in the Diallo case was if he could show that the cops were not just negligent but reckless—that is, that their unreasonable conduct was almost, or virtually, intentional.

And that would have been an uphill battle. That conduct is infected with racial bias does not render it intentional or even reckless.

The criminal process shows the difference between the two cases

In considering why the Louima and Diallo cases differ, it's worthwhile, also, to consider how the criminal justice system addressed the two cases.

All of the police who were involved in the Louima case were charged criminally -- by both the state, and ultimately, the Justice Department. One, Justin Volpe, received 30 years for torturing Louima and violating his civil rights. The other three cops were convicted by juries for various lesser offenses, culminating with one, Charles Schwarz, accepting a five year plea-bargain for perjury.

In comparison, when the Bronx District Attorney tried the four cops who shot Diallo in Albany on various state charges, including manslaughter and reckless endangerment, the jury acquitted on all charges. Despite the acquittal, the Justice Department refused to take up the case.

Of course, one can take issue with the jury verdict in the Diallo case, and with the Justice Department's decision not to intervene -- and the jury in the Diallo tort suit might have felt very differently from the criminal jury. (Remember the results for O.J. Simpson, who was acquitted of murder but found liable for the intentional tort of battery.)

But the different outcomes of the two cases did reflect, I believe, a genuine difference in the facts, and in the kind of tort alleged. The Louima case involved savage intentional torture of a helpless, imprisoned man. The Diallo case involved disastrous, and allegedly negligent, police misjudgment in a high-pressure situation.

Should heirs of negligence victims receive greater damages?

In the end, then, Gair's real complaint may not be with the difference between the Louima and Diallo settlements. It may be, instead, that the Diallo settlement is simply too low given that he died of his injuries.

But again, it's not clear that that's the case. Again, punitive damages aren't available in negligence cases such as the Diallo case -- because they are meant to punish and deter intentional conduct. And that leaves compensatory damages -- to be paid to the victim's family (or other representative) in what is called a "survival" action.

What do these damages represent? In New York, the representative can demand compensation for all the losses actually suffered by the victim before her death. That counts medical bills -- but Diallo had none. It also counts pain and suffering -- but having died instantly, or very quickly, Diallo likely also had none.

Fortunately, however, modern tort law recognizes that the family of a person killed by negligence should also be able to sue for another kind of compensatory damages. These damages representing the loss to them of the economic value of their loved one's support.

These suits are called "wrongful death" actions. But they, too, have their limits when it comes to damages.

Damages in 'wrongful death' actions: Economic, not emotional loss

The limitation of wrongful death damages to economic loss has one main consequence: High earners' families tend to get more.

Consider the families of the victims of the 9/11 attacks. Congress offered them a Victims Compensation Fund to substitute for the wrongful death suits they otherwise would have brought, against the airlines and otherwise. Because many victims' lifetime incomes would have been very high, the awards were in the millions. (Indeed, some families of especially high-earning victims complained that their awards were "capped," since the deceased would have made even more than the award represented.)

In contrast, Diallo was a street vendor who made a modest income, and had low earning potential. Granted, New York also allows juries to measure the economic value of intangible services. But Diallo was an adult child who lived on a different continent. The intangible economic services he provided were therefore much more modest than those of, say, a single mother who takes care of a minor child from morning until night.

Should wrongful-death plaintiffs recover for emotional losses?

I think, therefore, that Gair's anger is misdirected. If $3 million seems too little for Diallo's family it must be because the injury inflicted by the City of New York on Diallo and his family was more than an accidental death. If Diallo suffered an injury on top of the loss of his life, it was that he suffered a violation of his dignity, or civil rights. If his family suffered a loss on top of the accidental loss of a beloved family member, it was that they lost a family member as a result of a violation of his dignity, or civil rights. In other words, Diallo's death was more than simply an accident.

But why view a $3 million settlement for an accidental death as a second-best result? Given all the information so far produced, it seems that Diallo's death was avoidable but not intentional. The whole point of negligence law is to provide society with a vocabulary through which victims can confront their injurers which does not demand proof of criminal conduct. We need a way to publicly evaluate horrible events like the Diallo shooting which captures the complexity of human behavior. Not all wrongful acts are criminal, and not all acts which are not criminal are innocent. Negligence captures that middle ground.

I am pretty happy with the Diallo result. $3 million is a serious amount of money for the wrongful death of victim with modest income potential who suffered an almost instantaneous, yet unjust death. It may seem counterintuitive at first, but in this case, the system worked.

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Anthony J. Sebok, a FindLaw columnist, is a professor of law at Brooklyn Law School, where he teaches torts, among other subjects.


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