The Department of Justice’s scathing investigation into the Phoenix Police Department revealed a pattern of discrimination against people of color, the homeless and those with serious mental illness, as well as excessive use of force and lack of accountability. Attorney Steve Benedetto says these are patterns he sees all the time in his work.
Benedetto takes on the cases of people who say they are victims of police violence. And, he told The Show, they are rarely successful in court.
His firm represents the protesters who say they were wrongfully arrested by Phoenix Police and fraudulently indicted by the Maricopa County Attorney’s Office as a gang, as originally reported by ABC15. Those charges are part of what led to the DOJ’s investigation into the Phoenix PD.
But, Benedetto didn’t start out as an attorney focused on civil rights. Here’s his conversation with The Show.
Full conversation
STEVE BENEDETTO: So it is August of 2014, just a regular weeknight. And I’m sitting at home watching CNN with my wife, and all of a sudden there’s this news flash. And I see what I think is some kind of war breaking out in the Middle East. I see tanks and armored vehicles and kind of mounted machine guns and smoke and grenade smoke everywhere.
And then I see the byline, and it’s Ferguson, Missouri. I have no clue where Ferguson is. I’ve never heard of it. But it sparked this interest of what is happening in Ferguson, Missouri, and why does it look like there’s a war going on?
At the time, I was doing a lot of personal injury work and some criminal defense. My background was in kind of big corporate law. Hadn’t really thought a lot about doing civil rights work. I had, I think, one civil rights case in 10 years. But at that point, once I dug into what was going on in Missouri at that time, it just felt like I didn’t really have much of another choice. I had to explore this area because it really just seemed really underserved.
And seeing the degree to which the police have been militarized and the threats on ordinary citizens’ rights really concern me as an attorney and as someone who was involved in the system.
LAUREN GILGER: That’s really interesting. So you kind of leave that work, you found this firm and you start taking on these cases, basically you’re saying that no one else wants that. So these are cases of protesters who have been prosecuted, right? You’ve done a lot of those cases, but also victims of police violence.
BENEDETTO: Correct. Victims and survivors. So we have on the victim end of it, the folks that have been shot and killed by police. We’ve had a lot of those cases. We've turned down a lot of those cases over the years. There's a fairly depressing flow of those cases coming in, far too many. And then we have survivors as well, people that survive police and state violence, and then live to tell the story and seek justice within the system.
GILGER: How often are these cases successful?
BENEDETTO: Very rarely. It does happen. There are the cases we all hear about in the media, and they get reported. Millions of dollars of settlements. And I think it’s great. The misnomer that these cases are largely successful — and in fact, it’s exactly the opposite.
Most cases do not settle. Most cases do not make it to trial. They get dismissed by the court, often on qualified immunity. That’s the most well-known version of kind of a procedural technicality that leads to dismissal.
GILGER: What does that mean, exactly? Explain that.
BENEDETTO: Qualified immunity is a doctrine created by the Supreme Court to protect officers from all but the most egregious forms of unconstitutional conduct. The Supreme Court decided that we don’t want officers being sued for the same types of things that everyone else can be sued for: doctors and lawyers and people on the roadway. We don’t want ordinary negligence standards.
We want officers to only be sued if they know someone has a constitutional right and they’re acting to specifically violate that right. So the way that’s taking shape in the modern case law is that in order to survive qualified immunity and actually be able to present your case to a trial, you have to point to a prior similar case with virtually identical facts.
I’ll give you a direct example from here in Tempe. We represented a man named Ivaughn Oakry, who was holding his baby in his apartment when three City of Tempe police officers tased him. He almost fell on his child and injured the child. Fortunately turned before he hit the ground, but was tased simultaneously three times by three officers while he’s holding his child.
And our argument was this is clearly excessive force. And the court didn’t necessarily disagree that it was excessive force but said there isn’t a case that says that officers are not able to tase a man while he’s holding his baby. Therefore, qualified immunity excuses the officer’s conduct. It just means the officer will not be held liable in court, and you don’t get your day in court in terms of an opportunity to present the case to trial.
GILGER: So there are some big cases with big settlements and lots of money for victims of police violence that we’ll all hear about once in a while. Those are not the norm and not generally the cases you’re taking on as well. Are the people that you’re representing more complicated? Is this about most people in these situations with police being “imperfect victims”?
BENEDETTO: I think that’s part of it. What happens with the civil justice system generally is even those of us who might live more perfect lives than others, when we get on the business end of the government and the civil justice system, we find out just how imperfect we are. Because the government dredges up everything it can on us.
So we have had clients that look great on paper, but it turns out that 12 years earlier there was a domestic violence incident, or there was a bankruptcy or they went to therapy because they were abused sexually as a child. Those are the kinds of things that the defendant — in many cases but especially civil rights cases — really weaponizes against people.
So that tends to yield lower settlement values and lower case values when you’re dealing with someone that has prior issues. And then as you mentioned, a lot of folks that have regular contact with police tend to have more complicated criminal backgrounds.
GILGER: Are there patterns in the kinds of cases that you take on? Do you see the same kinds of stories over and over and over again?
BENEDETTO: We see the same kinds of stories in the sense that we see the same kinds of races of people. And it’s probably no surprise to anyone who’s read the DOJ report within the city of Phoenix, we see a lot of Black folks. We see a lot of Hispanic folks. It’s very, very common and strikingly commonly, I guess uncomfortable as a middle-aged white guy to get so many calls from a community that’s not massive in Phoenix.
This isn’t Detroit or Philadelphia with a large historic Black population. There’s a modest and very, very long history of African Americans in Phoenix and history of redlining and history of racism. And that carries over very much into today, unfortunately.
And that’s a lot of what we see. Not exclusive. We get calls from white people from time to time, too. But by and large, those are the common threads we see more often than anything else.
GILGER: The pattern is racial. Wow. So let’s talk about the DOJ investigation. I think a lot of people had heard the stories, not incredibly surprised by what they found. And Phoenix police have said that they’re making changes. The chief has said that he’s implementing accountability tactics and training and things like that. I wonder what your take is on this, because cases that you took on, particularly regarding protesters, were part of what led to this DOJ report.
BENEDETTO: It’s interesting. The protest section of the report is probably the least developed. It’s, like you said, what got the DOJ here in the first place, and yet we see far more substance directed towards other areas. But I think if you look at this report, what you also see is there was a clear pattern of the city of Phoenix not cooperating with the investigation on First Amendment issues.
It’s referenced in footnotes. In the First Amendment section, the DOJ talks about how the city of Phoenix did not provide reports into the Tactical Response Unit, which was the First Amendment protest response unit. They did not provide the DOJ with access to prior investigators who investigated this exact subject matter, prohibited them from speaking with them, and they allowed 40 separate police officers to refuse to talk to them and did nothing about it.
GILGER: Where do those cases stand, many of those protester cases, the ones that made news, got the DOJ here and were a big deal here? Have you been successful in those lawsuits?
BENEDETTO: We have been successful at defeating rounds of motions to dismiss. So when these lawsuits get filed, the city and most cities respond to them with an effort to get them thrown out of court right away. That litigation process often takes months, in these cases has taken years. The most recent round, I think, was the third round of motions to dismiss. We’ve gotten somewhere in the neighborhood of 30 motions to dismiss in this case.
That was just denied by the court in March. And now the cases are moving forward to discovery, where officers and the protesters will actually have their depositions taken and be producing documents that are relevant to the case.
GILGER: So let me ask you lastly before I let you go here, Steve, just about your overall goals and maybe expectations. There’s been widespread criticism of this DOJ report from the police unions, some city council members. On the other hand, though, the people who have been outspoken about the problems with the police department are also not happy about this report because they say we’re not going to see any changes as a result of it, because the DOJ will not make that happen. Do you fall in one of those camps, somewhere in the middle?
BENEDETTO: I’d say somewhere in the middle but much closer to the latter camp. I am skeptical, based on my research, of the power of a consent judgment to affect long lasting change. That is not a substitution for a belief that something drastic has to happen in this department. And what I think needs to happen is the DOJ needs to sue the city of Phoenix and take the power of the federal government and sue the city of Phoenix and actually get a federal ruling that the city has violated the Constitution in all the ways that they found.
One of the reasons why the community is very skeptical is because historically, consent judgments don’t result in the type of change that actually saves people’s lives and protects people. What does that is reducing police size and reducing jurisdiction in areas where maybe they shouldn’t have it, like mental health crises.
Those are the kinds of things that a judge can order in an injunction. It’s the kind of thing that if the city of Phoenix were willing to hold its police department accountable, would be in a consent decree.
The Show asked Phoenix Mayor Kate Gallego to comment regarding specific issues raised in this interview by attorney Steve Benedetto. Deputy Communications Director Ashley Patton with the City of Phoenix provided the following statement on behalf of the city manager’s office:
The City of Phoenix provided The Department of Justice access to requested documents and body worn camera videos in accordance with the law. An individual’s participation in interviews requested by DOJ was a decision made by the individual, and not the City of Phoenix.
The City worked with DOJ to provide more than 179,000 requested documents, 22,000 Body Worn Camera Videos, access to more than 200 hours of ride-alongs, trainings at the Phoenix Regional Police Academy and interviews with more than 130 employees, including Interim Chief Michael Sullivan and City Manager Jeff Barton.
The Show also reached out to the Phoenix Police Department, which provided the following response: “The City of Phoenix and Phoenix Police Department are still reviewing the details, allegations and events contained in the report. We are thoroughly digesting all the information provided by the DOJ.”
