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Photograph by Felipe Buitrago
CONSIDER IT SETTLED: Anthony Boskovitch is one of the few local lawyers who take on inmate and prisoner lawsuits. He says the county has been very open in the past about settling cases before trial, although at least half of excessive-force cases go nowhere.

Deal or No Deal

The cost-effectiveness of taking cases to court may change how the county deals with lawsuits it was once eager to settle

By Vrinda Normand

PERCHED high on the ceiling, security cameras witness the routine steps of inmate processing in the booking area of San Jose's main jail: waiting, photos, waiting, fingerprints, paperwork, more waiting.

But on occasion, these cameras capture something a little more interesting.

Kathy Thomas used the footage from one of those cameras as evidence in her lawsuit against Santa Clara County and 10 correctional officers (COs) for alleged use of excessive force in her 2005 arrest. She sought a settlement, but the county chose to go to court. And though a jury found in her favor last month, the county has reason to be pleased with its resolution—and to consider it a possible model for similar legal cases they might have been eager to settle in the past.

San Jose attorney Anthony Boskovitch, one of the few local lawyers who take on inmate and prisoner lawsuits, has been watching Thomas' case closely for the past three years. Normally, Boskovitch says, the county is very reasonable about settling cases.

But they didn't budge for Thomas' $600,000 settlement demand. Instead, the county fought the case all the way through a jury trial in federal court, which ended last month. The jury ruled in Thomas' favor and awarded her $40,500 plus attorneys' fees as partial compensation for her medical bills and lost wages.

Boskovitch calls the outcome a "fantastic victory" for Thomas because he knows the legal standards are very high to defeat a government agency in court.

However, the loss may not have been so bad for the county. Assistant County Counsel Winifred Botha says the Thomas case cost them an estimated $20,000-$30,000 in manpower and expenses; add on the judgment and attorneys' fees (likely $200,000), and it's still less than what Thomas was demanding.

It's no secret that the county is facing a serious budget crisis. So does this trial represent a new, hardball approach in order to tighten the agency's purse strings?

Boskovitch says he's heard several county lawyers talk about getting orders to try more cases, although he says he hasn't personally experienced unusual resistance to inmate lawsuits that he's pushing.

Thomas' case is one of only two against county jail officials that have gone to court in the past three years. In the same time period, the county settled seven alleged excessive-force claims from inmates, paying out over $500,000.

They're currently facing seven more cases, but there's no telling yet what county lawyers will do. County Counsel Ann Ravel says there won't be an overarching change in strategy.

"We do not have a policy or a strategy regarding inmate litigation," she told Metro. "Rather, we look at the merits of each case."

However, she did indicate the county is looking closely at all such suits and "will try a case if we think that it is without merit."

Either Strategy A Gamble

The cameras from which Thomas' footage was taken only capture the crouching figures of eight officers in a struggle that drags on for five minutes. When the dog pile breaks up, Thomas is lying face down with her arms behind her back. She would later tell a jury that the COs attacked her.

Metro wrote about her story in July of 2005 ("A Tale of Two Jails," MetroNews), agreeing to protect her identity by using the alias Kathy Thomas. That was before the case went to court and before her attorneys obtained the Main Jail video footage they showed to the jury.

Thomas, who faced no criminal charges stemming from that April 2005 arrest and was released the same morning, also submitted photos of purple bruises on her arms, shoulders, and hips. She had a black eye and bluish circles on her neck made by the pressure of someone's fingers.

In court, Santa Clara County Deputy Counsel David Rollo said the COs needed to restrain Thomas because she kicked one of them during the fingerprinting process. Rollo contended the COs were carrying out their duties and did not violate Thomas' constitutional rights.

The jury found that the COs used excessive force and caused substantial damage to Thomas. But they didn't agree with her claim that the COs acted maliciously, and therefore awarded her far less money than she was seeking. Civil lawsuits against criminal justice officers must prove this high standard, which goes beyond negligence or accidental force in the course of government duty.

That's why a lot of lawyers aren't even willing to accept excessive force cases against the government—they're a ton of work, and Boskovitch says they only have a 50 percent chance of winning, regardless of the circumstances.

The majority of excessive force claims filed by inmates go nowhere. In the past three years, the county has rejected 20 such cases, far more than the nine lawsuits it has settled or taken to court.

Thomas' case, Boskovitch says, was very difficult because she had been drinking before her arrest and refused to spit out her gum during the booking process. Noncompliance and an alcohol connection are two things juries don't like.

There are many factors that determine the strength of such a case—and either way the county responds is a gamble.

Just last summer, they paid $185,000 to a man named Titus Rucker for a similar complaint.

Rucker's attorney, John Burris, says the COs badly bruised his client's eye and face and aggravated his existing back problems during a fingerprinting.

"They overreacted and beat him down to the ground with outrageous conduct," Burris says.

The COs, however, see things differently. In our previous story, county corrections officers and their union representative described a simmering tension inside the jail due to understaffing and overcrowding that they say has led to crisis conditions.

One attorney who represents many COs in excessive force lawsuits told us that inmate allegations are usually fabricated or exaggerated because the average person doesn't understand what type of force the law allows.

County officials believe Thomas' case wasn't as strong as Rucker's, or at least not worth the amount she was demanding. In this case, the jury proved them right.

Thomas, meanwhile, is obviously glad the case is over, though she says the jury's award will barely cover her medical bills and doesn't solve problems at the jail.

"It's been horrifying," Thomas says. "The worst nightmare of my life."

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