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How Cleveland's Trying to Get Out of Paying $18.7 Million in Judgments Against Two Cleveland Police Officers 

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Brown argues the situation created a plus-sized conflict of interest: It doesn't benefit Kovach to declare bankruptcy when her debt can be paid off by the city. But it does benefit the city for Kovach to declare bankruptcy rather than seek indemnification from Cleveland. And Cleveland was paying for Kovach to go into bankruptcy.

"No attorney in good faith would ever counsel a client to go bankrupt instead of seeking indemnification first from the city of Cleveland," Brown argues. "The only reason these employees made that decision is because the attorneys representing them were also representing the city of Cleveland."

She continues: "Once Cleveland had any thought it was not going to indemnify the officers, it was not appropriate to have the same counsel representing Cleveland and the officers. It's a clear violation of legal ethics."

In June 2015, Ayers fired off a lawsuit against the city, an attorney in the city's law department, and the bankruptcy attorney who represented Kovach in her Chapter 7 filing. The new complaint blasted the city for an "ill-conceived attempt to avoid" the judgment.

Although the city declined to answer questions about the lawsuit due to ongoing litigation, subsequent filings have staked out its position.

Cleveland doesn't believe a plaintiff in such a case has any right to indemnification if the officer involved doesn't want it. The city also points out that the police union contract caps indemnification at $1 million. That said, as Brown and Ayers' other attorneys point out, state law requires full indemnification: no cap. And the police union contract contains language suggesting the Ohio code trumps the contract's fine print.

"It's a tenuous legal argument that no court has endorsed," Brown says flatly. "Cleveland is required to indemnify above a million dollars. And they have indemnified officers in the past above a million dollars."

In 2000, the city paid out a $3.1 million judgment won in civil court by a man paralyzed after being shot by police. Three years later, the city paid $1.9 million to the family of a 6-year-old boy accidentally shot by a Cleveland detective in Collinwood. In 2008, the family of Ricado Mason won $1 million in a wrongful death suit.

David Leneghan, the bankruptcy attorney paid by the city to file Kovach's filing and one of the parties named in the recent Ayers lawsuit, blasts back against the allegations in the complaint. He says that Ayers' own attorneys waited too long to make the indemnification an issue, after the bankruptcy was closed, even though they knew it was going forward.

"David Ayers' purported right to personally seek compensation from my client's employer is not an asset which should have been listed in bankruptcy," Leneghan wrote to Scene in an email. "David Ayers' right to seek payment from my client's employer existed both before and after bankruptcy — there was no interference with that.  Bankruptcy just means that my client will not have to be personally liable, nor have to personally pay, the Ayers judgment."

He continues: "I have repeatedly stated on the record that it appears that David Ayers waited too long, more than two years, before filing his lawsuit for indemnification, which, in my opinion, is beyond the statute of limitation period for a claim for statutory indemnification in Ohio."

Some of that legal swamp will be drained and clarified as the parties continue to spar in court. In the meantime, Ayers hasn't seen any of his $13.2 million judgment. (Ayers did receive a $50,000 settlement from CMHA police before his civil trial.)

Also, it's become apparent the bankruptcy ploy isn't a one-time legal chess move in Cleveland's playbook.

As part of the paper shuffling that goes on between sides in the pre-game of a lawsuit, Ayers' attorneys asked the city if they'd hired bankruptcy attorneys for any other officers facing civil judgment.

The city answered with a contract between Cleveland and a private attorney to provide those services for Roger Jones, the off-duty officer who shot and killed Kenny Smith. The documents were dated about six weeks after the Cleveland officer was found liable for the death.

***

Smith's attorneys weren't happy when they were alerted last fall about the situation.

"They seem to want to try every possible angle to defeat the justice that's required by the court in providing indemnification," attorney Terry Gilbert says. "It would be like if you were in a car accident and there's insurance for the wrongdoer, but the insurance company refuses to pay — that's unheard of. That's what they're supposed to do."

But the city's moves in the Ayers and Smith cases have implications that go beyond the two cases, as Gilbert, and civil rights lawyers across the country, clearly point out.

As the recent Tamir Rice situation shows, police misconduct cases are less likely to find footing in the criminal justice system. "Civil rights lawsuits for money damages under the Federal Civil Rights Act are really the only check that exists on rampant police misconduct that is resulting in hundreds of unnecessary deaths, years in prison on the basis of frame ups, and many more small injuries," says John Burton, a California attorney who serves as president of the National Police Accountability Project, a non-profit branch of the National Lawyer's Guild.

Cleveland's actions in the Smith and Ayers case appear to be an attempt to dance around that check. "I haven't heard of this happening a lot," Burton adds.

For the city — which is still trying to scrub off the umbrage of the Department of Justice's 2014 consent decree regarding bad police practices, the controversial acquittal of police officer Michael Brelo and the deaths of Tamir Rice and Tanisha Anderson — even the appearance of a concerted effort on the part of the law department to shake loose of the federal judgments tied to police misconduct is a bad look.

"I believe that a chronic problem in municipal governments nationwide is the disconnect between the responsibilities of the law department and the responsibilities of the politicians that run the municipality," says David Malik, a Cleveland civil rights attorney who is not involved in either the Ayers or Smith cases.

"You could have a very benevolent mayor who feels for his constituents about a wrong that has occurred," Malik says. "At the same time, you could have a law department that is sending a message like they are sending in the Ayers case, which is, 'I don't care.'"

Subodh Chandra, the local attorney representing the Tamir Rice family, also served as law director in Mayor Jane Campbell's administration. During his tenure, Chandra says his office would seek to resolve cases quickly where the city could face exposure in the early innings of litigation.

"Unfortunately, the law department over the last decade has not been doing as much of that as they should," he explains. "The Kenny Smith case really should have been settled much earlier."

Chandra however, says on his watch the law department never cooked up such a scheme. "It's unprecedented for the city to expend it's own resources for bankruptcy counsel for officers or city officials," Chandra says. "It may be doing it to avoid the liability of the poor judgment that led to the [civil judgment] to begin with."

He adds: "It just shows you how elusive justice. The criminal justice system is broken, and rarely if ever does it hold police officers accountable for their conduct. The civil justice system takes an enormous amount of time and expense, and even when one jumps over every hurdle, one still might be left with nothing because of this maneuvering. And that's not something the city should be proud of."

It remains unclear whether Mayor Frank Jackson was advised of the law department's activities. The city declined to answer that question. City council members, however, were caught off guard when told of the practice.

City Council president Kevin Kelly tells Scene he was not aware the law department was opting to hire bankruptcy attorneys for officers with civil judgments rather than indemnification.

"I hadn't heard of that," Kelly says. "I wish I could comment more intelligently on that, I just don't know enough about this area of law." The law department, he points out, has wide discretion within their council-approved budget to hire outside counsel, as well as settle lawsuits.

"Man, you blew me away with that," says councilman Kevin Conwell, who is the vice-chair of the public safety committee. "I think I got to dig into this one." When reached on his cell phone last week, Conwell was walking his district, distributing fliers urging his constituents not to re-elect Tim McGinty for county prosecutor.

Conwell noted he'd ask the current head of the safety committee, councilman Matt Zone, to inquire in writing to the law department about the practice.

Cleveland councilman Jeff Johnson also says he has not been informed of the practice.

"I believe it is inappropriate for the city to pay for lawyers for bankruptcy," Johnson says, adding that the decision should be left to the individual. By hiring the officers' bankruptcy attorneys to discharge settlements, the city is sending the wrong message, he argues. "It's disingenuous. We're making a statement in public that money is our predominating concern in these cases, not whether a citizen was harmed or not."

Attempts to reach Kovach and Jones for this article were unsuccessful. An email for comment to the city-hired attorney representing Jones was also not answered. Steve Loomis, the outspoken head of Cleveland Police Patrolman's Association, also did not return messages seeking comment.

In response to questions about the cases, a Cleveland spokesman issued the following statement:

"The Ayers and Smith judgments are not against the City of Cleveland, but are against the individual police officers. In the Ayers case, one of the police officers has died and the other discharged the debt in bankruptcy.  The Smith case currently is on appeal to the Sixth Circuit Court of Appeals. The City does not avoid the payment of its legal obligations, including judgments."

***

Shauna Smith sits in the kitchen of her tidy South Euclid home, her nails tapping nervous staccato against the tabletop. Her dead son Kenny — big smile and creased cheeks — is peeking from an array of pictures tacked on the fridge over her shoulder.

"I'm tired of talking about it," she says, the words friendly but as deflated as a blown tire. "I really didn't even want to do this," she says, indicating the interview she's in the middle of now.

Although Jones has yet to file for bankruptcy, Gilbert and Greene, Smith's attorney, are watching the court for the eventual filing. The judgment against the officer is currently in appeal. Gilbert says he hopes to put the officer and city on notice before they try to atomize the debt with bankruptcy. "I have a client who lost her son to a terrible shooting that never should have happened," the attorney says. "Basically the city is saying to her, 'We don't care.'"

This morning in her house, Smith is hearing the message loud and clear. "I've been though enough," she says. "The jury has reached a verdict. Quit dragging it out; quit coming up with these tactics." The hardest part, she says, it that all this has kept her stapled to the part of her life she was hoping to push free from with the verdict.

"I'm tired," she says again.

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