Cop Fights to Revive Post-Settlement Suit Over Firing

DENVER (CN) – A Utah police officer who settled a wrongful termination case with the city that employed him tried to convince a 10th Circuit panel Tuesday that the settlement doesn’t prevent him from bringing related due process claims in a new lawsuit.

In 2012, Shaun Cowley – then an undercover drug officer – shot and killed 21-year-old Danielle Willard outside of an apartment in suburban West Valley City, Utah. The shooting led Willard’s parents to sue the city in August 2013, one of several lawsuits involving the city’s police force that led the district attorney to investigate claims of department-wide corruption.

Cowley says he was ultimately fired that year for mishandling evidence on the orders of the city manager, who he claims said “anything less than termination sends the wrong message to the department and the citizens.”

In 2015, a judge awarded Cowley $88,000 in back pay and nearly $33,000 for his pension. But Cowley says back pay did nothing to address his due process claims, which he filed in 2016 and which a federal judge dismissed.

On appeal Tuesday, Cowley’s attorney Daniel Baczynski of Ayres Law Firm faced tough questions from a three-judge 10th Circuit panel.

“What did the settlement do if it didn’t settle the case?” asked U.S. Circuit Judge Paul Joseph Kelly Jr.

Baczynski said the settlement provided a salve for Cowley’s wrongful termination claims, but left claims of due process violations raw and unresolved.

“The settlement is limited to back pay, specifically excluding all other violations, and it doesn’t make my client whole,” Baczynski argued. “The settlement does not waive his right to due process violations. If West Valley wanted to negotiate for that, they could have put it into the settlement agreement, but they didn’t.”

U.S. Circuit Judge Joel M. Carson III expressed doubt as to Baczynski’s take.

“Normally if you settle your claim for back pay, don’t you think you’re waiving any other damages from the same conduct?” Carson asked. “Doesn’t it come down in every case, at the losing side, that it wasn’t fair?”

The city’s attorney Brandon Crowther, from the Salt Lake City firm Preston & Scott, said the settlement signed by both parties ended the case.

“West Valley City wasn’t giving Cowley permission to sue him again, that doesn’t make sense,” Crowther said. “I can’t imagine what other damages we would be settling if not for the wrongful termination and that’s what the city attorneys were thinking when they drafted it.”

In its brief, West Valley City underscored that Cowley’s due process had been satisfied when he “prevailed on his post-termination appeal, was reinstated to his prior position, [and] negotiated the amount of the judgment he received.”

While snow tapped the windows of the sleepy second-floor courtroom, Crowther carefully traced the investigations supporting Cowley’s original termination. Presiding Judge Gregory A. Phillips removed his glasses and settled back against his chair. Judge Carson leaned forward, chin in hand, while Judge Kelly bent over his notes, pausing only once or twice to cough into his free hand. 

Finally, Crowther offered a theory as to what elusive damages Cowley sought.

“The district court has broad discretion to award attorney’s fees and rightly denied them in this case,” Crowther concluded.

But Baczynski used his final minute to request the panel remand the case for a jury trial to resolve the “disputed facts” once and for all.

The panel did not indicate how or when it would rule.

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