Schenectady police officer’s excessive force lawsuit expected to be settled for $360K

The full City Council is expected to vote on the proposed settlement on Oct. 9
Nicola Cottone's injuries (inset); Schenectady police officer Mark McCracken (background)
Nicola Cottone's injuries (inset); Schenectady police officer Mark McCracken (background)

SCHENECTADY — The City Council will vote Tuesday on a $360,000 settlement for an excessive force lawsuit against the city and police officer Mark McCracken.

The proposed settlement was confirmed by city Corporation Counsel Car Falotico, who said he was recommending the council authorize the settlement. He said the figure reflects the cost of litigating the issue, and automatically pays the attorney fees for the woman who filed the suit.

“Given the factors, as well as the challenging fact pattern of the case, I have recommended the settlement,” Falotico said.

Falotico said the city would be paying $100,000 out of pocket to settle the claim, while the rest would be covered by its insurance carrier.

The proposed settlement was voted out of the council’s Claims Committee on Monday during an executive session. The full council is expected to vote on the proposed settlement during the Oct. 9 meeting.

Independent Councilman Vince Riggi, chairman on the Claims Committee, called the case “indefensible.”

“That’s what it is in my opinion,” Riggi said. “We’re going to have to bite the bullet and pay the money out.”

He added even though the city is only on the hook for $100,000, he thinks it could cost the city more down the road. He said the city’s insurance premium might go up, which could lead to Schenectady needing to pay a higher deductible in order to get a better rate.

The proposed settlement was introduced on Sept. 25 through a court filing submitted by Kevin Luibrand, an attorney for Nicola Cottone, in the U.S. Court of the Northern District of new York in Syracuse.

Cottone filed the lawsuit against the city and McCracken in September of 2017.

Cottone claimed her rights were violated when she was beaten by McCracken on Sept. 13, 2016.

The Police Department’s professional standards unit said in a report dated Sept. 30, 2016, that McCracken used excessive force against Cottone while she was handcuffed. She suffered a significant wound to her head. The report, written by recently retired Lt. Edward Barbagelata, also stated McCracken took a photo of Cottone’s injury and showed it to other officers, a violation of department policy.

The report, which was included in a filing in March, did not detail what, if any, punishment was issued to McCracken.

The filing included statements from Lt. James Sanders and Officer Andrew MacDonald.

MacDonald was also named as a defendant in the lawsuit, and Falotico said the settlement would cover claims against both of the officers.

Riggi said he would hope Police Chief Eric Clifford will take steps to prevent these types of incidents. However, he said he still wants police officers to be respected by the public for the job they do.

“I know people will be upset with [the settlement], but they shouldn’t cast a bad aspersion on the whole police department,” Riggi said.

Clifford commented on the settlement through a statement provided in a press release.

“The mission of the Schenectady Police is to treat all persons with dignity and respect,” Clifford said in his statement. “Many encounters our officers handle daily are with people who are not at their best moment and it is incumbent upon us to maintain professionalism at all times and serve the community with fairness and integrity. For the last two years, procedural justice has been a focus of our training and policy development, and it will continue to drive our future as we continue our goal to build trust in the community.”

Cottone had been arrested on a warrant — issued by another police agency — for burglary and larceny charges. She was then put in the department’s “muster room,” where she was handcuffed by MacDonald and seated on a bench, according to the report.

Cottone, at one point, stood up and began shouting, according to Barbagelata’s report. Later, according to a statement by Sanders included in the report, McCracken showed him a photo of Cottone with the wound and said, “This is what happens when someone hits one of my men.”

Other legal issues

The settlement comes during a year in which McCracken has dealt with other legal issues.

He was charged with criminal contempt in January for allegedly violating an order of custody and visitation held by his wife, Cassie Walker. She said McCracken came in “close physical proximity” to her during their son’s hockey game at a Union College hockey rink on Jan. 7.

Walker and McCracken were in the process of divorcing at the time.

McCracken later accepted an offer from the Schenectady County Attorney’s Office for an adjournment in contemplation of dismissal of the criminal contempt charge. The charge was scheduled to be dismissed on Sept. 26, as long as McCracken stayed out of trouble.

McCracken who was placed on administrative leave after his arrest, was demoted from lieutenant to patrol officer when he returned to the job. The police department has not said whether the demotion was due to his legal issues.

Falotico declined to comment on whether there would be any more discipline lodged against McCracken, adding state civil rights law prevents him from doing so.

Public Safety Commissioner Michael Eidens, who oversees discipline of the police department, did not return a request for comment on the settlement.

McCracken was, at one point, in the running to become police chief, but the job was given to Clifford.

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