The Case Before Us, Part 3

I’m sure many are wondering how last Friday’s settlement with the City of Minneapolis popped up in the midst of jury selection in the Derek Chauvin homicide trial.

The first and simplest reason is because the City of Minneapolis albeit the one-time employer of former MPD officer Chauvin is not the criminal case prosecuting authority. That is, as always, the State of Minnesota.

In the normal course of events, it is represented by the county attorney where the alleged offense occurred — but Minnesota law provides for the Attorney General to step in at the request of the Governor or a county attorney.

But in a civil rights case, such as the one that was pending in United States District Court, it is the statutory obligation of the city to defend and potentially indemnify a police officer facing civil liability.

This case, on behalf of the family of George Floyd, had interesting “wrinkles,” because it coincided with a rare prosecution of the officers in a criminal case.

First, the federal court docket revealed that there were no substantive proceedings simply because the parties jointly agreed or stipulated to a stay of all proceedings during the pendency of the criminal matter.

Additionally, from news reports, it appears the lawyers for Minneapolis employed a settlement device used to limit or set a ceiling on recovery of fees and costs at trial if the offer is rejected. This is called a Rule 68 offer of judgment.

Under this procedure, a recipient of the offer risks paying the other side’s costs if the amount recovered at trial is less than the offer. Its purpose is to encourage settlement.

However, there is a catch-22 in a Rule 68: it has a time limit for acceptance and may not be withdrawn after it is communicated. As a result, it creates a “take it, or risk paying for the lawsuit if you leave it” dilemma for the other party.

From all reports, Minneapolis submitted a Rule 68 to Mr. Floyd’s family about the time jury selection was getting well underway. As a result, lawyers for the family had to either accept the offer or lose it and likewise risk paying costs to the City after trial. So they accepted.

And because Minneapolis spends taxpayer dollars to pay settlements — for police lawsuits and all lawsuits — -the terms of settlement are public.

The idea that a municipality which is a former police employer can coordinate with a prosecutor to avoid having an impact or potential impact in a criminal prosecution would be ideal but is neither legally required or necessarily feasible.

And as most all lawyers will tell you, settlement does not imply liability. In fact, lawyers always claim they deny liability in settlement documents.

And civil liability, even if it is admitted, is not on a par with criminal responsibility. The standard of proof in each proceeding is different with civil cases requiring only the lightest burden of a mere preponderance and criminal cases the heaviest — -or proof beyond a reasonable doubt.

In short, no conclusions should be drawn from the settlement about the potential outcome of a criminal prosecution. The proceedings seek to resolve two different legal issues that are essential to our concept of justice as a whole.

-Albert Turner Goins