David Michael Miller
On July 13, a jury awarded $7 million in damages to the family of Ashley DiPiazza for her killing in May 2014 by two Madison police officers. The family’s attorneys argued that DiPiazza’s constitutional rights were violated when the officers “responded to her mental health crisis and potential suicide by shooting and killing her.”
City attorney Michael May said he was “extremely disappointed” by the ruling. May added that “the damages in this case are covered under the city’s insurance policy,” which is with the Wisconsin Municipal Mutual Insurance Company.
But that insurance doesn’t come cheap and costs are on the rise, precisely because of the DiPiazza killing and others like it. Since 2013, general liability premiums have totaled $2,069,945, averaging more than $400,000 annually. Additionally, the first $350,000 of every liability claim is now paid directly by Madison taxpayers, which increased from $300,000 in January.
David Schmiedicke, the city’s finance director, compares that expense to the deductible on a typical insurance policy.
“The city’s insurance total costs vary each year depending on what happens,” Schmiedicke says. “If we have a year with a lot of liability losses, total insurance costs can go way up. If we have fewer the next year, total costs could go down.”
The city and the insurance company are contemplating appealing the ruling. But if it stands, it will be the third multimillion-dollar judgment or settlement against the city in three years for fatal police shootings.
In 2015, Wisconsin Municipal settled a lawsuit brought by the family of Paul Heenan — the 30-year-old fatally shot by Officer Stephen Heimsness on South Baldwin Street in 2012 — for $2.3 million. Earlier this year, the family of 19-year-old Tony Robinson, killed by officer Matt Kenny on Williamson Street in 2015, settled a civil rights lawsuit against the city for $3.3 million. The city paid $300,000 of each settlement.
“Based on the amount of liability losses recently, our insurance company said we have to pay a greater share of claims in order to keep premiums level. So we’ve gone from $250,000 to $350,000 over the past three years or so,” Schmiedicke says. “[The city] is definitely on an upward trajectory for paying a greater share of each individual claim amount when there’s an event, such as a settlement or an adjudicated claim.”
Schmiedicke expects Madison’s premium to go up, too.
“We’ll probably be looking at a 5 to 10 percent increase in our premium next year,” Schmiedicke says. “But we’re still in the midst of putting all of that together and talking with our insurer.”
Wisconsin Municipal Mutual is an insurance company formed by municipalities from around the state. It provides liability insurance that covers most, but not all, city operations. Eric Veum, Madison’s risk manager, is the current chair of the company’s board. However, he directed all questions about the insurance company to CEO Dean Boes, who did not respond to multiple requests for comment. Speaking for the city, Veum says when there are “significant claims” caused by lawsuits, premium costs are expected to rise.
“It may not occur right away, but over the next couple years our premiums will increase once those lawsuits flow through [the insurance] carrier’s formulas,” says Veum. “Our rates are also affected — to some extent — by what’s happening nationally. If there are significant monetary claims in other states, that can have an impact on what we pay, too.”
Ald. Rebecca Kemble is “extremely concerned about the costs to taxpayers of multimillion-dollar settlements.”
“One question I have is, why aren’t our internal reviews of these incidents revealing information that would lead us to believe that there might be civil rights settlements in the future?” asks Kemble.
Jeff Scott Olson, attorney for the DiPiazza family, declined to comment on that case, since it may be appealed. Olson also represented the Heenan family and was the attorney in two other damage claims arising from excessive force which involved the now-retired Heimsness (including an incident on State Street in 2006).
“I should note there have been very few cases against the Madison Police Department,” Olson says. “If you take out the ones involving Stephen Heimsness, there have been almost none.”
However, Olson tells Isthmus that civil lawsuits against police are becoming more common. “I think that’s due to the ubiquity of video recording. Before there was video recording, it was just one person’s word against another,” Olson says. “If the injured party was deceased, it was just the police version of the event, and that did not often support damages.”
He notes that police dash cam video played a “significant role” in the decision to settle the lawsuit brought by the family of Tony Robinson. “Police should look at the way European police are trained. [They] are taught that it is appropriate, under certain circumstances, to shoot to wound,” Olson says. “American officers are trained that if they shoot, they should always shoot to kill.”
Wisconsin Professional Police Association executive director Jim Palmer told the Wisconsin State Journal that he doesn’t suspect training will change but worries officers might start second guess themselves because of the lawsuits like DiPiazza.
“The verdict sends a message that officers have to wait to be fired upon or have a gun directed at them before taking action to protect themselves,” Palmer told the paper. “That is inconsistent with their training.”
State Rep. Chris Taylor, who represents the east side of Madison, says the recent lawsuits show that the Madison Police Department’s use-of-force policies are “out of date and not reflective of what the community expects.”
“Since I was elected [in 2011], three people have been killed by police in my district alone,” Taylor says. “There are some very questionable things being done, like shooting a person who is suicidal and has made no threat to anybody but herself. And it’s viewed by some as, ‘Oh that’s fine.’ But the public is saying, ‘No, it isn’t fine.’ It’s seriously wrong and shouldn’t have ever reached that point.”
Taylor is proposing the Safe Communities legislative package, which would require that a third of the annual training on use-of-force options — required annually for officers — emphasize de-escalation. Another part of the package requires law enforcement agencies’ written use of force policies be published online to increase transparency and accessibility.
Madison Police Chief Mike Koval stands by the department’s current use of force policy. But he says training is always evolving.
“No one would assume the training would ever remain static if there were other mechanisms, techniques, training methodologies that could arguably reduce … lethality,” Koval says. “Based on what we have recently been subjected to in terms of the lawsuits, there haven’t been any deviations or departures from the state’s training standards, and those are consistent with Supreme Court case law.”
But Olson, the guy who just won a multimillion-dollar jury case against two of Koval’s officers, advises police be more open to improving their training. Otherwise, the city’s exposure to lawsuits isn’t likely to end.
“[Currently], it’s completely to be expected that police who are involved in the use of force will be exonerated by the police department and the district attorney’s office,” Olson says. “If plaintiff civil rights lawyers didn’t take a serious look at these cases, we’d be leaving a lot of money on the table.”
