Copped Out

Attorney Albert Goins argues that the city is responsible for officers' off-duty behavior
Daniel Corrigan

Kevin Buford says he just wanted to use the restroom. But Minneapolis Police Officer Steven Tatro, working off-duty on the evening of May 12, 1999 at the Dayton Radisson parking ramp, would have none of it. So Buford made a beeline for the alley to take a leak. And, according to Buford's version of events, Tatro tailed him and beat him so severely that three of his teeth were knocked loose and a dentist would later remove bone fragments from his jaw. The MPD's Internal Affairs Unit investigated the incident and concluded that Tatro had violated three different department rules officers must obey on and off duty, including a policy regarding the use of non-deadly force. The MPD fired Tatro unceremoniously; his last day with the department was in April 2000.

Four months later Buford filed a federal lawsuit against the City of Minneapolis, the parking ramp (run by the Columbus Corporation), Tatro, and two unnamed MPD officers who allegedly held onlookers back during the incident. Today lawyers for both Buford and Tatro maintain the city is responsible for defending their former employee.

In a letter sent to the Minneapolis City Council in mid-February, however, Assistant City Attorney Tim Skarda argues that Tatro is on his own: "The City Attorney and Police Department reviewed the allegations and conduct of Tatro and jointly determined that Tatro was not entitled to defense and indemnification." Skarda's letter is only a recommendation, however. The ultimate decision whether to defend Tatro rests with the Minneapolis City Council. On March 19 the Minneapolis City Council's Ways and Means/Budget Committee voted unanimously to accept the City Attorney Office's recommendations. The full council is scheduled to take up the issue March 23.

Historically, the city has picked up the legal tab for rogue cops, even those working off-duty. Some cases get settled, some get dismissed, a few go to court and make the local papers. And over the past decade that has cost Minneapolis millions. The one name that stands out, however, is Lt. Mike Sauro's. In 1994 a federal jury concluded that Sauro--while working off-duty as a security guard at JukeBox Saturday Night in downtown Minneapolis--had stomped and beaten Craig Mische. To compensate for the damages, they awarded Mische $700,000, which would eventually come out of the city's coffers, not Sauro's pockets. (Add attorney's fees and a separate $300,000 settlement with another complainant who was at the club that same evening, and the city's total tab for the case comes to $1.3 million.)

The city, particularly burned by cases involving off-duty officers, adopted a new policy for defending employees in 1997. And while Skarda acknowledges it's still rare for the city not to defend one of its officers, now the City Attorney's Office and department heads can recommend that the City of Minneapolis not defend an employee if he or she is guilty of malfeasance, willful neglect, or bad faith. Employees have the right to appeal such a recommendation to an administrative law judge. But Officer Tatro did not seek a hearing.

Kevin Buford's attorney, Albert Goins, argues that when the MPD fired Tatro, they were acknowledging their liability. "We're going to argue that the City of Minneapolis is responsible," says Goins. "Police agencies that discipline the officers hold them to a high standard, as they should with regard to their internal policies. But then when a third-party civil litigant shows up they absolve themselves of any responsibility. I think it's hypocritical." Goins also points out that it is municipalities, not individual cops, that have the wherewithal to compensate for damages, which can often reach six figures. "Obviously the individual police officer has little or no resources," he says.

Tatro is being represented by attorney Dennis Johnson, who was retained through the Minnesota Police & Peace Officers Association. He is hesitant to talk about the case prior to the city council's decision, but he does agree with Goins on one issue: "I truly think that [Tatro] should be indemnified by the city."

In the Sauro case, one of the issues raised in court was the department's indifference to excessive-force complaints. Assistant City Attorney Skarda says that argument will not wash in the Tatro case. "One theory for suing the city is that we did not properly discipline police officers," says Skarda. "I think that would fail because obviously we disciplined this employee. We fired him." (The city tried, but failed, to terminate Lieutenant Sauro after the costly jury verdict. He now works in the MPD's sex-crimes unit.)

Plaintiff's lawyers and rank-and-file cops are in rare agreement in their belief that cities should be responsible for bearing the cost of defending their officers. Although he declines to comment on the Tatro case, Sgt. John Delmonico, president of the Police Officers Federation of Minneapolis, says, "I think the city, if they're acting in the scope and duties of their employment, needs to indemnify cops." According to Delmonico, the federation did not pursue arbitration to get Tatro his job back.

Charles Lutchen worked as a cop in St. Paul for 22 years and today serves as the executive director of the Minnesota Fraternal Order of Police. He says he can't recall a case in St. Paul in which the city refused to defend an officer. "If you're wearing the St. Paul blue," says Lutchen, "you're acting as a police officer for the City of St. Paul, even though it's through a private business." He points out that per their contracts, local officers work off-duty with the blessing of their departments.

Skarda argues that his office's position is justified because Tatro's behavior is so egregious. "There's things that stand out in this case that are different from your standard allegation of use of force," he observes. A videotape exists of the incident, in which Tatro punches Buford repeatedly, striking him in the head and torso. "Based on the videotape, the officer consistently lied in his police report," a summary written by the MPD's Internal Affairs Unit reads. "The videotape confirms actions that happened, but were denied by the officer in his statements."

Goins sees the Tatro case as indicative of a broader movement: more and more government agencies abdicating responsibility for officers working off-duty. "It's a trend. It's disturbing. I think the public should be concerned about it," Goins says. He then points to another case he is handling, involving two off-duty Minnesota state troopers who allegedly sexually assaulted a woman in a Maplewood motel six years ago. The Minnesota Department of Public Safety argued in court that the state was not responsible for defending or indemnifying the troopers. So while Goins's client won $200,000 in personal damages, the judgment is essentially worthless: The individual troopers don't have the money. Goins, who is taking the matter to the Minnesota Court of Appeals for a second time, still hopes to recoup money from the state.

In the same vein, Goins argues that it should be the City of Minneapolis, not Officer Tatro, on the financial hook for Kevin Buford's suffering. Goins even professes some sympathy for the former officer. "He's being victimized to some extent because the City of Minneapolis and the parking ramp are trying to wash their hands [of him]. The city cut him loose."

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