Federal judge ends dispute, brokers final deal between kicked protester, city of Erie

The city of Erie and a kicked protester have finally settled the protester's civil rights suit after a federal judge intervened in the negotiations.

The agreement ends a contentious case in which a settlement appeared to have been completed in April but was unexpectedly put in doubt weeks later.

The case got so heated that a lawyer for the city's insurance company petitioned to have the protester's lawyer held in contempt of court for discussing the dispute over the settlement with the Erie Times-News.

The final settlement, reached in U.S. District Court in Erie on Thursday, came with no contempt action and left the city and the protester, Hannah Silbaugh, 23, with a deal that closely resembles what the two sides came up with through court-ordered mediation with a retired federal magistrate judge on April 1.

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Silbaugh will get $45,000, and the city must provide more information to a community panel on incidents involving police use of force, said Silbaugh's lawyer, Timothy McNair.

"We are happy we were able to get the case resolved," he said. "We have more accountability than we had before," he said, referring to the Erie police's use of force.

Deal or no deal?

Silbaugh sued in the summer of 2020 after an Erie police officer, Marc Nelson, then a sergeant and now a lieutenant, kicked her in the shoulder as police were clearing out downtown after rioting broke out following a peaceful protest the night of May 30, 2020. The protesters were demonstrating over the death of George Floyd, the Black resident of Minneapolis who was killed at the hands of police in that city on May 25, 2020.

Tentative agreement:Kicked protester, city of Erie settle federal lawsuit; deal includes payment

Silbaugh claimed Nelson and other officers violated her rights by using excessive force against her as she sat in the middle of State Street along Perry Square while protesting. The city said Nelson and the other police officers acted appropriately.

McNair and the lawyers for the city had agreed the case was resolved in mediation on April 1, according to court records. The deal became uncertain after McNair on April 25 asked U.S. District Judge Susan Paradise Baxter to schedule the case for trial, saying in a court motion that "there is no apparent meeting of the minds" over the settlement.

McNair told the Erie Times-News in an April 26 article that he and the city could not agree on what information in the use-of-force reports would be redacted before the police presented them to the city's Strengthening Police and Community Partnerships Council, formed in 2018 to reduce barriers between the police and the community. The council has no formal authority to oversee the police, but provides input.

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The release of the information to the council was part of the settlement.

The city disagreed that a dispute existed over the settlement terms.

Judge steps in

The city's lawyers on May 5 asked Baxter to compel a settlement. On Monday, one of the lawyers, Paul Krepps, of Pittsburgh, filed a motion asking Baxter to hold McNair in contempt, claiming McNair's comments to the Times-News in the April 26 article violated a court policy "that settlement discussions are strictly confidential." McNair on Tuesday responded that he did nothing wrong, and he said Krepps violated court policy by filing the contempt motion.

Baxter scheduled a hearing for Thursday. Instead of listening to arguments in court, she met with the lawyers in chambers for about an hour and brokered a final deal.

McNair after the hearing said the two sides had resolved "a misunderstanding" over what information the police would present to the Strengthening Police and Community Partnerships Council, or SPCPC.

In the suit, McNair and Silbaugh had demanded Baxter order the city to establish an independent citizens' review board to monitor the police. McNair lost that fight, and settled for the police providing information to the SPCPC.

Pressing for a resolution:Kicked Erie protester presses for police oversight as federal lawsuit goes to mediation

A U.S. Supreme Court case made clear that a federal judge has no power to order the creation of such a review board, and Erie Mayor Joe Schember and City Council backed the work of the SPCPC. McNair had argued the SPCPC lacked the authority of an independent review panel to monitor the police.

With the settlement requiring the police to give information to the SPCPC, "We achieved a degree of accountability," McNair said.

Pressing for a resolution:Kicked Erie protester presses for police oversight as federal lawsuit goes to mediation

Silbaugh was not in court on Thursday.

City Solicitor Ed Betza, who also attended the session with Baxter, said "we are very happy we were able to resolve it," referring to the suit.

Betza declined further comment.

Also in attendance during the discussions with Baxter on Thursday was the inspector for the Erie police, Mike Nolan.

Of the $45,000 that is to go to Silbaugh, $35,000 is to come from the city's insurance company, Travelers, and the city's $10,000 is to cover the rest, based on what McNair has said and the city's insurance policy.

Aftermath of the incident

In defending the suit, the city said Silbaugh refused police orders to leave the scene as the officers attempted to quell the riots the night of May 30, 2020. The police did not charge Silbaugh with creating a disturbance, and the Erie County District Attorney's Office did not charge Nelson over the kick, which was captured on a video that went viral on social media.

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Schember in June 2020 announced the he had suspended Nelson, the officer who kicked Silbaugh, for three days without pay. Schember said the police's internal affairs investigation found the officer who struck Silbaugh followed approved police procedures and his use of force was technically justified under the police bureau's policies. Schember never released Nelson's name, which was later disclosed in court records.

However, Schember said of the use of force, "I have concluded that the manner in which it was applied by the officer was inappropriate," and that the situation warranted discipline. "I believe we needed to take some kind of action, given the situation," Schember said.

Nelson was never suspended. As the Erie Times-News reported on March 27, the Erie Fraternal Order of Police union grieved the suspension, and a mediator set it aside in November 2020, before Nelson had served any of the suspension.

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The city in August 2021 promoted Nelson, a member of the force since 1999, from sergeant to lieutenant. He heads the Erie police's training unit, the Erie Times-News also reported on March 27, citing city records.

The Schember administration never publicized that Nelson never served the suspension over the kick. As part of the mediated settlement that voided Nelson's suspension, the city agreed to require all its police officers to attend sensitivity training and the city said it would review its use-of-force policy.

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

This article originally appeared on Erie Times-News: Erie kicked protester lawsuit: Federal judge brokers final deal