Two From The Ethics Alarms “I Don’t Understand This At All” Files…Part II: The Bad Cop Catch-22

In 1995, Darryl Howard [above] was wrongfully convicted of murder and imprisoned for more than two decades, one of many egregious miscarriages of justice during that period in Durham, North Carolina. Mike NiFong, the infamous prosecutor who pursued the Duke Lacrosse case, prosecuted him, and a Durham detective named Darrell Dowdy fabricated evidence while doing a negligent investigation. The Innocence Project helped free Howard; in 2016, the convictions were vacated and the DA who succeeded NiFong dismissed the charges. In April 2021, Gov. Roy Cooper officially pardoned Howard, who sued the city and Dowdy, and in December, a federal jury found former Detective  Dowdy had indeed framed him. A jury awarded Howard $6 million.

Durham, however, is refusing to pay and wants Howard to pay the legal fees of of two city employees who were eventually dismissed from the suit.

“I proved my innocence. I went through every court. Every judge says what this was, even the governor,” Howard told the Raleigh News & Observer. “Now I have to fight again.” Durham’s employees robbed Howard of the prime years of his life, but the city has tried every legal tactic to avoid addressing the injustice it was responsible for inflicting on him. One of its arguments is that since Howard had a record of various crimes and convictions before he was wrongly sent to prison for murder, it shouldn’t have to compensate him as if he were a model citizen.

Head explosion time. That’s one of the most unethical and illogical arguments I’ve ever heard a government make.Durham spent $4 million fighting Howard’s civil rights lawsuit, which originally included the city and several employees as defendants but ultimately just included Dowdy. The city says it has no obligation to indemnify Dowdy, though it employed him for 36 year and placed him on the path to destroy Howard’s life. Dowdy can’t pay the $6 million the jury awarded Howard; he is essentially judgement proof. If Durham won’t and its argument hold up in court, Howard will receive virtually no compensation for those 20 plus lost years at all.

Now, listen closely: Durham argues that it is only obligated to pay when its police are acting in good faith, not maliciously. Since  Dowdy was found to be acting in bad faith, the city argues that it was all his fault.

The Charlotte Observer reports,

A city resolution establishes a uniform standard in addressing claims against the city and outlines a policy to defend officers and employees against civil claims and judgments, city attorneys have said.

Unless the city has evidence or information to indicate otherwise, “the city generally proceeds under the presumption that, however conduct may have been portrayed in a complaint, the employee was engaged in the good faith execution of their duties on behalf of the city and was, thus, entitled to a defense,” Rehberg wrote.

The City Council decided not to pay the judgment during closed session meetings between December and February, Rehberg wrote. The meetings were closed for attorney-client consultation to respond to demands made by Howard’s and Dowdy’s attorneys.

The city’s resolution states that it’s in the public interest to settle judgments against the city “if the facts and circumstances of the claim or the suit in which the judgment is entered show that the officer or employee was engaged in the good faith performance of his duties on behalf of the City when the act or omission giving rise to the claim or suit occurred,” wrote Rehberg in an email, in which she added an emphasis on good faith. “A jury of Mr. Dowdy’s peers determined that Mr. Dowdy engaged in fabrication of evidence and a bad faith failure to investigate,” she wrote.

In short, the city will pay damages when its employees didn’t do anything wrong deliberately, but when its employees it hired, trained and supervised, have engaged in gross misconduct causing irreparable harm, Durham sees no reason to compensate the victim.

Here’s one: it is obviously the right and ethical thing to do.

Dowdy’s attorney, Patricia Shields, points out that the judgment will ruin her client— a minor consideration for the rest of us—and adds that it is inconsistent for the city to pay millions of dollars to defend Dowdy but then refuse to pay the judgment.

[Or , I would point out, to pay millions of dollars to defend its criminal cop rather than give the money to the man he, and by extension the city, wronged.]

“The city has known all along what Captain Dowdy did and decided to defend him on that basis,” she said. “I am upset on behalf of my client [and] I am upset on behalf of the other officers in the city of Durham,” as the decision raises questions about whether they can count on the city to stand behind behind them if they get sued.

One of Howard’s attorneys, Brad Bannon, also expressed disgust.

“[The city goes]  through that whole process. They pay all of that money. They enrich a bunch of lawyers, and then the moment they have to pay the actual victim of the city’s conduct here, they say we’re not going to back this,” Bannon said, calling Durham’s position indefensible, morally wrong and inconsistent with the progressive values city leaders portray.

“Do you know how hard that is in a system that gives police officers almost absolute immunity, that gives prosecutions complete immunity,” and win, Bannon asked. “It is not easy, I can tell you that. And he [Howard] did. And it is offensive that [the jury’s verdict] is not being honored.”

There appears to be a very strong likelihood that the city will be successful in ducking its responsibility.

10 thoughts on “Two From The Ethics Alarms “I Don’t Understand This At All” Files…Part II: The Bad Cop Catch-22

  1. The law in North Carolina may (must?) be different, but in my state the city’s statements turn practice regarding defense of police employees upside down. While my agency would only be required to stand behind me if I was acting in good faith and according to law and policy, they would be bound to pay any judgement against me regardless of whether I was shown to have acted in good faith or maliciously. I certainly hope their bid is not successful.

  2. I can ALMOST see the city’s point of view…if the officer is acting in “good faith”, then they are doing what the city trained them to do, thus the city is liable. Otherwise the officer is on their own. Either way though, SOMEBODY should pay in this instance.

    • I can see the argument, but I think it’s dumb, and it only seems vaguely reasonable because we think of police officers as professionals who should be trustworthy.

      If someone was hired by the city for road work, and turned out to be a jerk who directed cars into oncoming traffic, contrary to their training and assignment, of course the city would be responsible; that guy has a supervisor whose job is to supervise the project and, by extension, to fire jerks on the project who endanger people.

      Police should be more trustworthy, but they also have supervisors. The city paid some chain of command and police chief and county executive to sit at desks and oversee what the people down the chain were doing. If the city isn’t responsible for this knucklehead’s vendetta, they’re responsible for the supervisors who were presumably acting in good faith, who failed in their job of making sure the people under them were competent and acting in good faith.

  3. Hmmmm. . . Devil’s Advocate here: are employers always liable for each and every action of their employees. Isn’t this a distinction between negligence and intentional actions? For instance, many insurance policies cover claims for negligence and gross negligence but exclude coverage for willful and intentional conduct, especially when the question involves whether an employee is or is not acting within the course and scope of employment.

    Here, isnt the state saying the police officer was not acting within the course of his employment when he framed the man wrongfully convicted? If that is the argument, then it kind of makes sense that the state refused to pay, ¿no? I mean, who wants a stated government policy that ensures and enables the denial or violation of citizens’ fundamental rights?

    jvb

    • Yes, that’s what they are saying, but the usual argument is that the employee was not acting within the boundaries of the job, as when a delivery truck driver robs a store on his rounds. I don’t see how you can make the argument regarding a cop (or a DA) who negligently or maliciously puts an innocent man in jail. Virtually all the settlements for police shootings could be denied on that logic. Fact: an innocent citizen was sent to prison due to the malfeasance or misfeasance of a city employee who was doing his job badly, not doing some other task. It’s society’s, and a responsible government’s, duty to make sure that victim is compensated.

      • No it’s government’s duty to conserve scarce resources so that it can deliver the services it is charged with delivering. That’s why most states have some kind of Tort Claims Act, at least that’s what we call it here in NJ, that limits recovery against public entities in many ways: by placing procedural hurdles in claimants’ paths, by imposing injury thresholds that claimants must overcome in order to recover, and by, as in this case, limiting recovery for intentional bad acts. That’s actually pretty common generally in the law. No one’s home insurance or auto insurance will cover intentional assaults or anything like that. The shole idea of insurance, including self-insurance, is to cover error, omissions, and accidents, not indemnify you if you decide to go punch out your neighbor. However, in this case the City is overreaching with its arguments. It’s one thing to utilize the tools available to it to prevent a deep hole in its self-insurance fund, it’s another to say that this guy forfeited his civil rights because he was not a model citizen.

    • If the police officer wasn’t acting within his course of employment, then Howard was kidnapped and wrongfully imprisoned. Since the city participated in this, they are accomplices and should pay as accomplices to this highly illegal act. The DA and the court that continued to imprison him are also accomplices. If you put someone in handcuffs, took them to a cell, kept them there, put them on trial, then imprisoned them on you own authority, isn’t that what you would be charged with?

  4. The city did not only employ the bad cop. It supervised him, too. The failure of supervision cost a man 20 years in prison, or maybe the city would argue its police cheif was acting outside his duties too.

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