Last year, we told you about a $40,000 jury award to Robert Duran after he was beaten in jail by Deputy Stephen Koehler. Well, Duran still hasn't gotten the money, and given that he's homeless, HIV-positive and winter is coming, his attorney, David Lane, is calling for expedited payment. But the City of Denver is opposing his motion for complicated reasons -- including its decision not to pick up the tab for Koehler, who's been fired. And while Lane finds merit in not indemnifying officers and deputies who use excessive force, he sees Denver's approach to Duran brutal and uncaring. Details and the document below.
Here's an excerpt from our previous post in which Lane describes the 2009 incident:
"I told the jury the only way this case could have possibly come to light is because videotapes exist of everything that happened in the jail," Lane says. "Normally, if it's the word of a homeless prisoner versus a deputy, the deputy wins that battle every single time. But the jury saw what happened.
"There's no audio on the tapes, just video," Lane continues; he notes that four tapes shot from various angles were screened for the jury. "The first tape shows Duran leaving a cell to go get processed, and he gets into an elevator being operated by Deputy Koehler. It's March, and Duran realizes he's left his shirt in his cell. He claims he's asking Koehler if he can go back and get his shirt, but Koehler won't let him do it. And the next tape shows Koehler violently shoving Duran into the elevator.
"The deputy claimed that Duran was making aggressive hand gestures and demanding a sack lunch. But the video shows that Duran's hands were tucked under his arms in a shivering position the entire time."
After being shoved, Lane maintains, "Duran flew into the elevator and hit the back wall. At that point, Duran turned around and balled up his fists and started jumping up and down in the elevator, yelling at Koehler. But then Koehler points at Duran and says something, and Duran calms down while three other inmates get on the elevator."
As Lane explains, a cage door separated the inmates from Koehler. After it closed and the elevator started moving, Duran can be seen "pacing back and forth and running his mouth. Koehler said he threatened to kill him, but Duran said no, he was just cursing and protesting the fact that he'd been shoved for no good reason."
Shortly thereafter, the elevator arrived at the fourth floor of the jail. When its exterior doors opened, Lane says, "Koehler walks across the hall, gets some rubber gloves, puts them on and then comes walking very aggressively back to the cage. He slides open the cage door as Duran has his hands up, in surrender mode, and forcefully grabs him by the throat, pulls him out of the elevator by the throat and the scruff of the neck and rams his head into a door jamb.
"Duran goes down, and two deputies who don't know what's going on jump in to assist Koehler. Duran doesn't remember what happened next, but the video shows them dragging him into a vestibule area. There's blood everywhere -- all over Duran's face and his torso, since he's not wearing a shirt. He's handcuffed behind his back in the vestibule and is struggling to his feet when Koehler comes over. And Koehler's own words were, 'I stomped him in the face.'"
A jury agreed that Koehler's actions were over the line and awarded Duran $40,000 -- an amount that Lane estimates is now in the $70,000 range due to interest. And that's not to mention legal fees, which brings the total to around $300,000, by his calculations.
Why does the case remain in limbo? In part because "Denver refuses to indemnify this deputy," Lane says. "We have a pending motion to force Denver to pay, because the deputy who was fired doesn't have much money and Robert Duran wants to get paid. But Denver says, 'No, we're not paying."
Why not? City Attorney Scott Martinez, corresponding via e-mail, offers this explanation:
"The City reviews its duty to defend and indemnify peace officers on a case-by-case basis depending upon the facts and evidence in each case. Only if exceptional circumstances exist will the City question whether a peace officer has acted within the scope of her/his employment with respect to the City's statutory duty to defend the peace officer in a lawsuit or indemnify the peace officer from a judgment entered against the peace officer for compensatory damages. Here, we do not believe that the deputy sheriff who was sued in the Duran lawsuit was acting within the scope of his employment during the incident because at the time force was used, it was not authorized. The deputy sheriff was also terminated from employment with the Denver Sheriff Department as a result of this incident."
Lane can't remember Denver taking this position before, but Martinez maintains that it's not unprecedented. "The City currently has a lawsuit pending in Denver District Court in a separate matter to obtain clarification regarding its duty to defend and indemnify a police officer because the City does not believe that the officer's conduct fell within the scope of his employment," he writes, adding that the matter in question is the "Paez case."
That's presumably the matter involving former Denver police officer Hector Paez, who was convicted last year in a 2010 incident during which he allegedly coerced an arrestee into orally pleasuring him in order to avoid going to jail.
In Lane's view, the city's decision not to automatically indemnify sends "a very positive message. The quickest way to end police brutality in Colorado is if these cops believe their houses are on the line when they engage in excessive force. And Koehler is actually a good case for them to look at. Denver is saying, 'Go after him. Don't look to us. Go take his house, his car, his paycheck -- whatever you need to do, go do it. He's the wrongdoer, not Denver.'"
Even so, Lane wants Duran to receive what he's owed. Hence, his "Motion for Expedited Ruling Due to Seasonal Change." The entire document is below, but here's an excerpt:
Mr. Duran is HIV positive and suffers from other maladies that were the subject matter of testimony during the trial before this Court. He has places where he can sleep from time to time, however as a general rule, he is homeless.
With winter fast approaching, Mr. Duran has a real fear that absent shelter, given his health, he runs a real risk of dying on the streets of Denver. He desperately seeks resources and the judgment pending before this Court represents his best chance to survive.
Given the desperation of his circumstances, it is most respectfully requested that this Honorable Court give expedited consideration to the indemnification issue currently pending before it.
Despite these arguments, Denver is standing fast, and that leaves Lane frustrated. In his view, "opposing the motion for an expedited ruling is so cold and so callous that it's sort of breathtaking. All I'm asking is, 'Please make a ruling, because my client could freeze to death on the streets of Denver.' But Denver opposes it, which is essentially saying, 'We don't care if he freezes to death.'"
When asked about Lane's characterization, Martinez writes, "In respect of the judicial process, I won't comment on a pending motion." Likewise, he rejects any suggestion that Denver's decision not to indemnify Koehler might be an effort to save money, given the many recent lawsuits over alleged police brutality -- including a complaint filed by former inmate Jamal Hunter that resulted in a $3.25 million payout earlier this year. Martinez points out that the decision not to indemnify Koehler "was made in October 2013. To infer that a decision made a year ago was in anticipation of any current litigation is inaccurate."
Whatever the case, Lane doesn't think Denver officials can walk away from the Duran case without ponying up. "We might get about $150,000 from them," he says. "They're responsible for paying our attorneys fees, because they lost. So we'll get as much from Denver as we can -- and then we're going after Koehler."
Here's Lane's motion for an expedited ruling.
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