February 8, 2016

About that police officer who has the temerity to sue the estate of the person he killed.

I've got a problem with this NYT headline: "Chicago Officer, Citing Emotional Trauma, Sues Estate of Teenager He Fatally Shot." And this first paragraph, boldface added:
The Chicago police officer who fatally shot a black 19-year-old and an unarmed bystander in December has filed a lawsuit seeking more than $10 million in damages from the teenager’s estate, an unusual legal approach based on a claim that the young man’s actions leading up to the gunfire were “atrocious” and have caused the officer “extreme emotional trauma.”
Sounds unfathomably cruel, doesn't it?

There are 4 more paragraphs, including a statement from the estate's lawyer — "It’s a new low for the Chicago Police Department.... First you shoot them, then you sue them. It’s outrageous. I can’t believe that this police officer has the temerity to turn around and sue the estate of the person who he killed." —  before you get to the real structure of the lawsuit. Paragraph #6:
Officer Rialmo’s lawsuit, filed Friday in Cook County Circuit Court, was a counterclaim to a wrongful death case brought weeks ago by Mr. LeGrier’s estate....
It's a counterclaim! Rialmo didn't file the lawsuit. The lawsuit was filed against him. When someone sues you, you're required to answer, and you are intensely motivated to think through whether you have any counterclaims. In fact, if the defendant has claims against the plaintiff that arise from the same incident, he's forced to assert them now or lose them.

I understand why the estate's lawyer wants to portray this as outrageous, but it's not as if the police officer reached out and dragged this family from its private condition of mourning into the brutality of litigation. The officer — who has his own tragedy (especially having unwittingly killed an innocent bystander) — is (and, in his telling, was) responding defensively.

30 comments:

Bob Ellison said...

"When someone sues you, you're required to answer..."

What happens if you don't answer?

Paco Wové said...

Thanks for clarifying this, Althouse.

Tank said...

Typical media misunderstanding.

If you don't answer, you lose by default.

If you don't assert any claims you might have, you likely lose the opportunity to assert those claims later (law varies state to state).

Bob Ellison said...

Tank said, "If you don't answer, you lose by default."

Really? So I could sue some Joe Schmoe out there right now for brushing past me in the line at Target, and if he doesn't respond, I get the judgement?

Left Bank of the Charles said...

The cop is maneuvering to get a share of any settlement by the City of Chicago. Why stop with the cop, surely this is traumatic for the cop's lawyers too.

David Begley said...

Bob Elllison

Slight difference between a technical battery in Target and getting shot dead.

And in your Target hypo you still have to prove damages. No judge or jury would give you more than one dollar.

Bob Ellison said...

David Begley, I'm questioning the principle that "When someone sues you, you're required to answer..." and that "If you don't answer, you lose by default."

The hypotheticals are different. The principle is not, and I think both the Professor and Tank are way off on this one. At least, I hope so.

Hagar said...

Alinsky works both ways.

David Begley said...

Why shouldn't the plaintiff win be default? If the Panthers didn't show up, then the Bronocos win by default. It is a contest.

I'm assuming the Target defendant was properly served.

In Lincoln,Nebraska some woman sued "the rude cashier guy" at Tractor Supply.

traditionalguy said...

A Default Judgement is valid even if they sued another man with your same name and served you accidentally. Chew on that one awhile.

The Law is the law. Mercy lives in another world.

Draft Laws, Eminent Domain Laws, and now Civil Procedure Laws are all good reasons to pay a lawyer for advice; and don't just Google it and explain how innocent you were.

Laws that break laws are fun too. The Bankruptcy Laws are one. Elizabeth Warren supported them and Hillary sold out to mostly eliminate them for the middle class.

Bob Ellison said...

David Begley asked, "Why shouldn't the plaintiff win be default? If the Panthers didn't show up, then the Bronocos win by default. It is a contest."

Really, this is a problem. You think because you raise a complaint, even maybe a complete loser complaint, you should win if your opponent doesn't respond?

That is not justice. Not justice. The Professor sometimes says something like "nothing is a high standard".

A court asked to decide whether a lousy complaint should win should dispose of it properly, with no response required.

It is not a contest. "Properly served"?! Who gives a crap? Bring a lousy suit and get your ass handed to you by the court, if justice prevails.

Ignorance is Bliss said...

Bob Ellison-

If, based on the way you write up the claim, it is obviously frivolous on its face, then a judge may be able to throw it out. However, if you make a claim that is even slightly believable, then you have a right to have it decided by a jury. The defendant can't thwart that process by just ignoring your claim.

Of course you must follow the proper procedures, having them served papers so that you can prove that they knew about your lawsuit. But if you go through the proper procedures, and they do not respond, then you win.

Amadeus 48 said...

The New York Times:
Don't read it, and be uninformed.
Read it, and be misinformed.

Char Char Binks said...

But the unarmed baseball-bat-wielding violent lunatic he shot was black, and therefore could do no wrong. He was prolly finna go ta kollij an shit, turnin' life aroun. He dindu nuffin! And the bullet went through his body and killed a black woman, doubling the racism. Their lives mattered, not the cop's.

Fernandinande said...

Amadeus 48 said...
The New York Times:
Don't read it, and be uninformed.
Read it, and be misinformed.


“The man who reads nothing at all is better educated than the man who reads nothing but the New York Times.”

"The New York Times is a device for making the ignorant more ignorant and the crazy crazier."

Big Mike said...

I appreciate your clarification, Althouse. The case reminds me of what happened to Barbara Mandrell, who was forced under Tennessee law to file suit against the survivors of the dead college student who caused her auto accident in order to collect on her own insurance -- an action that was construed by the media as the act of an ogress and which cost Ms. Mandrell a great deal in public affection and record sales.

In short, Charles Dickens was absolutely correct when he wrote in "Oliver Twist" that "the law is an ass, an idiot."

Carol said...

Haha, how funny. Yeah it's easy to get all insulted and outragey when the counterclaim shows up, and you're forced to read and ponder the other side of the story..

It's one thing I actually love about law.

Ignorance is Bliss said...

First, lets kill all the New York Times editors...

Skeptical Voter said...

For Bob Ellison---get sued, don't answer, and a default judgment can be entered against you. The plaintiff still has to prove he was damaged---but the defendant's refusal to respond and defend makes that task a bit easier. That's life Bunkie--deal with it. Of course once the plaintiff has a default judgment and proves up some level of dollar damages, he still has to find you and collect--and that may be a whole 'nother legal process.

But as for the counterclaim here. When I first saw the headline, I thought of some of the very real trauma that commuter train engineers suffer out here in Southern California. Over the years, more than a few people here in SoCal have chosen to commit "suicide by train". Just walk out on the tracks in front of the oncoming train, and let the train do the rest. Several of the engineers involved in such incidents have had a great deal of difficulty in dealing with the emotional aftermath. Physics being what they are, there's not a darned thing they could have done to stop the train from running over the intentional suicide. But that's cold comfort when you know you have killed a man.

A cop shooting a young black man who is coming at him with a baseball bat or some such in his hand [and let's assume for the moment that the attack was real and shooting the attacker was a rational and legitimate response] is still going to have some trauma--and the effect is much worse if an innocent bystander is killed in the fray. Ultimate moral and legal responsibility should rest on the person who initiated the incident--whether it was the cop or the kid. That's what court trials are supposed to do.

Bob Ellison said...

Skeptical Voter, got it. A lawyer friend educated me likewise.

But it's wrong. Raising a complaint does not make the complaint legitimate. It's like Hillary saying every rape complaint should be believed!

Total shit, and apparently a treasured, pleasured part of the American legal system.

Tank said...

Bob Ellison said...

Tank said, "If you don't answer, you lose by default."

Really? So I could sue some Joe Schmoe out there right now for brushing past me in the line at Target, and if he doesn't respond, I get the judgement?


I know you think this was a smart answer.

Bruce Hayden said...

Really? So I could sue some Joe Schmoe out there right now for brushing past me in the line at Target, and if he doesn't respond, I get the judgement?

I think that one of the more egregious applications of this was apparently in CA, where women would go through the phone book looking for guys with names similar to that of the guys who inseminated them, and then suing them. The guys who were served, but didn't respond, ended up on the hook for child support, often for kids they had no relationship to. For the children.

The way that it works, for the most part (i.e. in most states, as I understand it) is that the plaintiff sues the defendant. The next thing that happens is that a summons and complaint are served on the defendant, and the summons has a return date. Whoever performs the service of process provides proof (typically in the form of an affidavit) of the service. Then, if the defendant misses the return date, and fails to respond by then, the plaintiff can request a summary judgment. If the plaintiff's attorney is in court at that time, he can do so directly. And, judges can then find the defendant in default. Note that you can file an answer before the return date, and that is often prudent.

In one of the more egregious situations I have been in, a collections attorney was set up in the front. When the judge called the case, he put both parties together. Then, the plaintiff's attorney asked me to go out and wait for him in the hall. Meanwhile, while I was in the hall waiting for him, another related case came up, and, with me in the hall, he requested summary judgment, and got it. Not being happy with that, I motioned to have the summary judgment vacated, and requested a hearing to show cause why he should not be found in contempt. That was because his summary judgment motion was fraudulent, with him knowing, or should have been knowing, that his actions alone caused the non-appearance that allowed the default judgment to proceed. In any case, we got to an amicable settlement. But - I did show him the bar complaint I had drafted.

The moral of the story is that you need to be very careful when served by a process server for most anything. If you don't respond properly, by the return date, you may end up in default, and in a lot of states, they don't have to serve you again, with the court assuming that you are just evading them. Just magically, the plaintiffs will clear out your bank account, or just start levying your paychecks to pay for something that you had no relationship with. And, it is mostly legal.

Qwinn said...

I'm surprised no one has brought up the Black Panther voter intimidation case yet. They were charged. They didn't appear. The DOJ won by default... and then Eric Holder dropped the case. A case he had already won. Because social justice. Can anyone think of any other situation where prosecutors have dropped a case they already won?

mccullough said...

The emotional trauma the officer is claiming is from killing an innocent bystander because he was defending himself from getting hit with a baseball bat. One of his shots went through the young man with the baseball bat and killed the neighbor.

He's not claiming trauma from shooting the young man.

cubanbob said...

The Chicago police officer who fatally shot a black 19-year-old and an unarmed bystander in December has filed a lawsuit seeking more than $10 million in damages from the teenager’s estate, an unusual legal approach based on a claim that the young man’s actions leading up to the gunfire were “atrocious” and have caused the officer “extreme emotional trauma.”

I'm impressed with the cleverness of the move.

" mccullough said...
The emotional trauma the officer is claiming is from killing an innocent bystander because he was defending himself from getting hit with a baseball bat. One of his shots went through the young man with the baseball bat and killed the neighbor.

He's not claiming trauma from shooting the young man.

2/8/16, 11:45 AM"

mccllough's observation is astute. The counterclaim now makes sense. The plaintiff will presumably win a some rather large award from the City and the plaintiff risks losing it all to the defendant in the counterclaim. Moneywise the problem for the cop is that he first has to lose in order to win, a weird form of Brewster's Millions.

EDH said...

In most cases a plaintiff has 3 years or more to prepare and file suit.

A defendant in most cases has 20 calendar days (including weekends) to answer, although extensions are usually granted, if you have a lawyer file a request for extension.

Because fairness.

jameswhy said...

Bob Ellison: Just read about a case in England where a guy brushed past a woman (who happened to be a famous person of some kind...British law apparently allows her to remain anonymous) in a busy London train station. The CCTV video showed that their accidental interaction took less than a second. But long enough for her to bring a sexual harassment claim aginst him! He finally got the case dismissed...after several years and thousands of pounds in legal fees.

Jupiter said...

Qwinn said...
"I'm surprised no one has brought up the Black Panther voter intimidation case yet. They were charged. They didn't appear. The DOJ won by default... and then Eric Holder dropped the case. A case he had already won. Because social justice. Can anyone think of any other situation where prosecutors have dropped a case they already won?"

That is commonplace under Obama. Google Pigford. Secretary of Agriculture Tom Vilsack, arguably the most disgusting piece of shit floating in the toilet bowl that is the Obama administration, used a similar tactic to turn the USDA into a racial spoils engine for making payoffs to genetic Democrats.

Chuck said...

Great post, Professor Althouse.

JCCamp said...

The Washington Post spun it about the same way. And yes, it does offer some incentive for the plaintiffs to drop the cop from their lawsuit in return for him to drop his counterclaim. Otherwise, Mom and Dad's Big Payday may evaporate. Which was probably the idea in the first place. Turn the cop into a witness instead of a defendant. That way, he can stay somewhat detached from the eventual (civil) decision.