Award to ex-inmate is upheld Judges reject detectives' claim of immunity

David Ayers, facing right, leaves the Cuyahoga County Jail as a free man, Monday, September 12, 2011. Ayers has been fighting the city of Cleveland to collect a $13.2 million judgment. A judge on Wednesday said the city must pay.

(Plain Dealer file photo)

Cuyahoga County Common Pleas Judge Robert McClelland

CLEVELAND, Ohio -- A judge ruled Wednesday that the city of Cleveland must pay a $13.2 million judgment against a former police officer whom a jury said helped frame a man who spent 11 years in prison for a murder he did not commit.

Cuyahoga County Common Pleas Judge Robert McClelland wrote in a seven-page order that Ohio's law is clear in that municipalities must pay to cover damages incurred by an employee while on the job in most cases.

He also wrote that plaintiffs have a right to ask a municipality to indemnify, or pay the judgment on an employee's behalf.

Former Cuyahoga Metropolitan Housing Authority security officer David Ayers is seeking to collect a judgment against former Cleveland police detective Denise Kovach.

(To read the full ruling, click here or scroll to the bottom of this story.)

A jury decided in March 2013 that Kovach and fellow detective Michael Cipo were liable for Ayers' wrongful murder conviction. Cipo has since died.

The city was originally named in Ayers' lawsuit but was dismissed from the case. However, its attorneys represented both officers at the civil trial.

The city has tried to avoid footing the bill for the judgment against Ayers, his attorneys said. It even went so far as to hire an attorney for Kovach in order to file bankruptcy and discharge the judgment, they said.

Ruth Brown, an attorney for Ayers, and Terry Gilbert, a prominent Cleveland civil rights attorney, both said they could not think of another city that defends officers from lawsuits and then forces officers to pay the judgment.

McClelland acknowledged this in his ruling, writing that "this may be a case of first impression." The judge also ordered the city to pay the statutory interest accrued since Ayers obtained the judgment, which Ayers' attorneys calculate to be roughly $1.4 million.

Brown said she is thrilled by the ruling.

"We hope that Cleveland will finally take responsibility for its obligation and not delay the case any further," Brown said.

City spokesman Dan Williams said in an email that "the City is considering, in response to the court's ruling, all available options at this time."

Ayers' case

Ayers, now 59, was arrested in 1999 in the beating death of Dorothy Brown, 76, who lived in a housing authority high-rise in Cleveland. He was convicted at trial based primarily on the testimony of a jailhouse informant and was sentenced to life in prison.

Ayers denied confessing to the murder or even talking to the informant. He filed numerous appeals until he finally prevailed in 2011, when DNA tests proved that a single pubic hair found in Dorothy Brown's mouth did not come from him.

The lawyers representing Ayers argued in the civil trial that anti-gay sentiments caused the two detectives to frame their client, who is gay, despite evidence that Dorothy Brown was also sexually assaulted.

Dorothy Brown's body was found naked from the waist down, and her top pulled up, exposing her chest.

The judge's ruling

Since the jury in the civil trial reached its verdict in 2013, Ayers' lawyers said the city has fought their attempts to collect on the judgment. The city even went so far as hiring an attorney to shepherd Kovach through bankruptcy proceedings in an attempt to wipe away the judgment, they said.

And while Kovach's debts, including the judgment, were discharged, Ayers still sought to collect the judgment by filing suit in Common Pleas Court to force the city to pay.

The city argued that under state law, Kovach must first ask the city to indemnify her. However, the judge wrote that the city has a responsibility to pay the judgment and that forcing Ayers to ask the city to pay the judgment on Kovach's behalf "is more akin to a collection proceeding and not a direct attack claiming liability on Cleveland."

McClelland wrote, "as a practical matter, that is not how indemnification agreements work. Also, if one were to adopt that reasoning, plaintiffs would seldom be made whole. The employees, named as defendants, would not be expected to have the resources to satisfy large judgments, such as the one here."

The judge pointed to several cases to back up his opinion, as well as the words of U.S. District Judge James Gwin, who presided over the jury trial against Kovach and Cipo.

The Kenny Smith case



Ruth Brown said when she asked the city whether it had hired a bankruptcy attorney to represent any other officers, it provided a contract that showed it agreed to pay up to $10,000 for a lawyer to represent Roger Jones. The patrolman was found liable in the 2012 police shooting death of Kenny Smith.

A jury awarded Smith's family $5.5 million in September 2015, though a federal judge reduced the award to $4 million. Gilbert, who also represents Smith's family, said the hiring of a bankruptcy attorney shows the city was again trying to skirt paying a judgment by foisting it onto an officer.

He said that McClelland's ruling in Ayers' case negates the city's efforts.

"It really was a very sinister move on the part of the city of Cleveland to try to protect themselves in a case where they defended the police officer," Gilbert said of the city's tactics in the Ayers case. "They have always provided representation to officers in any case involving excessive force."

Williams, the city spokesman, declined further comment.

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