Last month a three-judge panel from the Tenth Circuit Court of Appeals upheld a $400,000 judgment against the city stemming from a 1995 case in which an off-duty police officer shot a motorist following a traffic altercation. Heaping vituperation on top of defeat, the forty-page opinion also takes several shots at the city's attorneys: The judges dismiss defense arguments as disingenuous and misleading and accuse the attorneys of attempting "to deceive this court" concerning the facts of the case and the law.
"While we will not comment on every instance of such mendacity in the present case, we wish to make clear this unprofessional conduct has not gone unnoticed," the opinion states. "Further conduct of this nature may subject counsel for the City to sanctions."
Attorneys who practice in federal courts say the reproof's harsh language is unusual. The threat of sanctions is so unusual, in fact, that it may raise concerns about the firm's future appearances before the same panel -- as well as the future of its relationship with the city attorney's office. Halaby, Cross & Schluter has been Denver's outside counsel on police cases for more than twenty years, during which the firm has been paid millions of dollars for its services; it contract with Denver for the current year is for $850,000. The firm also defends law-enforcement agencies in Boulder, Englewood and various other municipalities and counties.
Firm principal Ted Halaby says he was baffled by the judges' criticism. "I've been practicing in front of that court for almost thirty years, appearing for around 250 appeals," he says. "Nothing like this has ever happened before." As for the accusations of deliberately misleading the court, Halaby emphatically denies them: "Obviously, we don't do that."
Yet this isn't the first time the firm's tactics have come under fire. The appeals-court ruling cites one other case, a 1991 police shooting in which Denver's legal team was accused of "mischaracterizing" the facts and applicable law. And last spring Halaby's shop incurred the wrath of U.S. District Judge John L. Kane Jr., when the attorneys failed to secure their client's cooperation with an order to produce thousands of internal files dealing with police-brutality claims. The files had been sought by attorneys for Matthew Combs, who claimed to have been severely beaten by a Denver police officer in 1998 after his car rolled into the officer's cruiser.
Kane ordered federal marshals to seize the police files, slapped a $10,000 fine on the city and excoriated Halaby's associate, attorney Andrew Carafelli, for the city's delay tactics. "Your arrogance is exceeded only by your petulance," Kane told Carafelli.
The Combs case was abruptly settled for $162,000 only days after the files were seized. Around the same time, Mayor Wellington Webb helped to expedite a $400,000 settlement in another high-profile police shooting case -- the death of Ismael Mena, a Mexican national who was killed in his home last year by SWAT officers attempting to serve a faulty no-knock search warrant ("Unlawful Entry," February 24).
The latest defeat from the appeals court involves a less notorious case, but it may ultimately prove more costly to the city than the Combs and Mena cases combined. Denver police officers are considered "always armed/always on duty," and Officer Edmund Gray was carrying his service revolver when he confronted Clifton Brown over a traffic dispute in 1994. Gray shot Brown several times as he attempted to flee, shattering his ribs and causing lasting muscle and nerve damage; Gray would later claim that the suspect brandished a weapon at him, but no gun was found on Brown. The Tenth Circuit's ruling affirmed a Denver jury's finding that Gray's police training was inadequate.
Brown attorney Joseph Mellon, who has represented several plaintiffs in police-misconduct cases, says the Denver Police Department has done little to address its training problems in the past decade, despite several adverse verdicts. "On the Brown case, they just closed their eyes to it," he says. "We had an expert, known internationally in police circles, who told them they ought to do something different, and they just told him he was wrong."
Halaby counters that Denver's training of its officers has been more than adequate and continues to improve. "This is where we have a real disagreement with the decision," he says. "Denver's training on the use of deadly force is commensurate with that of any department of its size in the country, but officers have to exercise a lot of discretion. You can't teach how to react under all possible sets of circumstances."
Although the jury found that Officer Gray was acting outside the scope of his employment when he shot Brown, the appeals court ruled that the city is liable for Gray's defense costs, too. With attorney fees, witness fees and other expenses, Mellon estimates that the case will wind up costing the city in excess of $700,000. Denver's hardball legal maneuvers and reluctance to settle valid claims only make the process more protracted and expensive, he contends.
"There's seldom any reasonable effort to evaluate and settle a claim at a stage where everybody could save money," Mellon says. "They make you try every case. We get a judgment, then it's appealed. These cases never end."
Halaby disputes this. "If there's liability exposure, the city settles," he says. "They've settled a whole bunch of cases that never make the newspaper. We have had cases where we had clear liability, but the settlement demand is way out of sorts with what the damages were. In those circumstances, we'll go in and admit liability and try the case on damages."
The stinging reproach contained in the Brown decision does give him pause, Halaby admits, but he doesn't anticipate that it will damage his relationship with the city attorney's office or his ability to practice in the Tenth Circuit. "Something like this, to any attorney, you should take that seriously," he says. "But I don't take it personally. When we have to appear in front of the same judge, we will expect that everyone conducts themselves professionally."
The court's criticism troubles Denver City Attorney J. Wallace Wortham, too. "It is not the policy of this office to ever misrepresent the facts or the law," Wortham notes. "I would have a concern about the court's comments if they were made regarding any attorneys in this office or those we have on contracts." He says he'll review the case and take "appropriate action" to ward off further rebukes.
One possible course of action would be to award the contract to another firm. There's a request for bids for next year's contract "on the street right now," says Wortham, who became city attorney this year. The contract has been put up for bid sporadically in the past, but each year the city attorney's office has concluded that Halaby's firm is the most qualified available, and the recommendation has been routinely approved by Denver City Council.
"It's been left strictly to the administration, and they've been recommending Halaby for the twenty years I've been here," says Councilman Ted Hackworth. "We didn't question it. But I'm not sure that the city attorney is the most capable person for appointing people."
Yet defending police departments against charges of excessive force is a highly specialized field of law, and few firms have the expertise or track record of Denver's current contractor. Halaby says a recent survey indicated that Denver's payouts on police-misconduct cases have been substantially lower than those of comparable cities; even now, with civil litigation over law enforcement on the rise nationwide, the city has never had a million-dollar verdict.
"That doesn't necessarily have to do with our expertise," Halaby adds. "It has a lot to do with the client and the training program."
For now, Halaby, Cross & Schluter remain the city's go-to guys. Asked about a possible appeal of the Tenth Circuit's ruling in the Brown case, Joseph Mellon says he hasn't heard anything yet -- "but I would expect, based on the strength of the court's opinion, that they ought to just pay this poor man."
According to Halaby, the city has decided to petition for a reconsideration of the case before the entire Tenth Circuit panel of judges.
