F I L E D

United States Court of Appeals

Tenth Circuit

SEP 22 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLINTON D. BROWN,

Plaintiff-Appellee and CrossAppellant,

v.

EDMUND BRUCE GRAY,

individually,

Defendant-Cross-Claimant and

Cross-Appellee,

v.

DENVER MANAGER OF PUBLIC

SAFETY,

Defendant-Cross-Defendant and

Cross-Appellee,

and

CITY AND COUNTY OF DENVER,

Defendant-Cross-DefendantAppellant and Cross-Appellee.

Nos. 99-1134, 99-1164

& 99-1232

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 95-N-2582)
*The Honorable James O. Ellison, Senior District Judge, United States

District Court for the Northern District of Oklahoma, sitting by designation.

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Theodore S. Halaby (E. James Wilder, with him on the briefs), of Halaby Cross &

Schluter, Denver, Colorado, appearing for Defendant-Appellant.

Joseph J. Mellon, of The Mellon Law Firm, Denver, Colorado, and Dwight L.

Pringle, of Collins and Pringle, LLC, Denver, Colorado, appearing for PlaintiffAppellee.

Before SEYMOUR, Chief Judge, LUCERO, Circuit Judge, and ELLISON,*

District Judge.

SEYMOUR, Chief Judge.
-3-

This civil rights lawsuit stems from the shooting of an unarmed motorist by

an off-duty police officer. After settling with the officer, the motorist, Clifton

Brown, filed a lawsuit against Denver under 42 U.S.C. § 1983. Denver appeals

the denial of its motions for judgment as a matter of law and for a new trial

following an adverse jury verdict. Mr. Brown cross-appeals the district court’s

refusal to grant his motion for judgment on a cross-claim assigned to him by the

officer, and the court’s failure to award him certain out-of-pocket expenses as

attorney’s fees. For the reasons set forth below, we affirm with respect to

Denver’s motions, and reverse with respect to Mr. Brown’s assigned cross-claim

and request for out-of-pocket expenses. 

I

On the afternoon of December 13, 1994 , Clifton Brown was running

errands in his neighborhood. As he drove down the street, he became involved in

a traffic dispute with another driver, Edmund Gray, who was a police officer for

the City and County of Denver. Officer Gray was not on regular shift, was

driving his own car, and was not in uniform. According to Mr. Brown, the two

men exchanged insulting hand gestures and thereafter Mr. Brown noticed Officer

Gray following and tailgating him for several blocks. The two cars stopped at a

traffic light. Officer Gray got out of his car, walked up to Mr. Brown’s car, and
1The shooting caused Mr. Brown a collapsed lung, shattered ribs, and

extensive nerve and muscle damage in his neck, chest, and arm. He required

months of physical therapy and additional surgery to remove bullet fragments

from his neck, and he experienced both depression and post-traumatic stress

disorder. He still suffers from constant pain and decreased mobility, and one of

the bullets remains lodged in his shoulder.

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drew his service revolver out of his jacket. Officer Gray pointed the gun at Mr.

Brown’s face and shouted that he was a police officer, but he did not display a

badge or other identification. 

The light turned green and Mr. Brown made a U-turn. Officer Gray

returned to his car and followed. Mr. Brown stopped on the shoulder of the road

in order to get Officer Gray’s license plate number. Officer Gray pulled up close

to him, got out of the car, and again approached Mr. Brown with his gun drawn,

shouting. Mr. Brown put his hands up and said, “What the hell do you want? I

don’t have a damn thing.” App., vol. I at 300, 301. Officer Gray again pointed

the gun at Mr. Brown’s face, at which time Mr. Brown put the car in gear and

started to drive away. Officer Gray fired several shots into the car, hitting Mr.

Brown approximately three times. Badly injured, Mr. Brown drove a few blocks

away, summoned help, and was taken to the hospital.1

Officer Gray’s version of the events is quite different. He claims that, after

the traffic dispute, Mr. Brown brandished a weapon at him, committing the crime

of felony menacing. He therefore attempted to arrest Mr. Brown pursuant to
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Denver Police Department policy. Officer Gray contends the second time he

approached Mr. Brown’s vehicle he ordered Mr. Brown to keep his hands visible. 

Instead of obeying this order Mr. Brown reached down to his right, brought his

hand up, and began driving away. Officer Gray claims he fired because he feared

Mr. Brown was both reaching for a weapon and attempting to flee.

Mr. Brown brought this lawsuit against Officer Gray, asserting various

state and federal claims. He also sued the City and County of Denver, asserting a

claim under 42 U.S.C. § 1983 for deficiencies in Denver’s police officer training

and seeking indemnification for the acts of Officer Gray under the Peace Officers

Act, Colo. Rev. Stat. § 29-5-111. Officer Gray cross-claimed against Denver

under the Peace Officers Act and the Governmental Immunity Act, Colo. Rev.

Stat. § 24-10-110, seeking indemnification and the costs of his defense against

Mr. Brown’s action. 

Mr. Brown and Officer Gray settled prior to trial. Pursuant to their

settlement agreement, Officer Gray stipulated to the entry of judgment against

him in the amount of $150,000, and assigned to Mr. Brown his claim for

indemnity from Denver. Officer Gray also assigned Mr. Brown his cross-claim

for defense costs. The district court granted their motion to substitute parties on

the cross-claims, effectively upholding the assignment. 
-6-

After the settlement, Mr. Brown proceeded to a jury trial against Denver on

the section 1983 claim and the state claims for indemnification of Officer Gray

and for his costs of defense, which had been assigned to Mr. Brown. Based on its

reading of the statutes, the district court decided the state claims could only

succeed if Officer Gray was acting within the scope of his employment when he

shot Mr. Brown. Accordingly, the court gave the jury a special verdict form

which required it to determine both whether Mr. Brown had proven the elements

of his section 1983 claim and whether Officer Gray was acting within the scope

of his employment. The jury returned a verdict in favor of Mr. Brown on the

section 1983 claim, but answered the second question in the negative. The

district court therefore entered judgment for Mr. Brown on the section 1983 claim

only, for $400,000.

A series of motions followed. Denver filed a Motion to Amend Judgment,

asking the court to specifically enter judgment in its favor on the indemnification

claims. Mr. Brown did not oppose this motion, and the district court granted it in

a later order. Denver also filed a Motion for Judgment as a Matter of Law,

arguing the evidence at trial was insufficient to establish municipal liability under

section 1983. In the alternative, Denver moved for a new trial based upon an

allegedly defective jury instruction. The court denied both of these motions. 
-7-

Mr. Brown filed a Motion for Entry of Judgment on the assigned crossclaim for the costs of Officer Gray’s defense, which amounted to $123,293.77. 

The court denied this motion, reasoning that the Governmental Immunity Act

would have required Officer Gray to reimburse Denver for the costs of his

defense because the jury found he was acting outside the scope of his

employment. Mr. Brown also applied to recover attorney’s fees under 42 U.S.C.

§ 1988, and costs under 28 U.S.C. § 1920. The court awarded most of the

requested fees and costs, but declined to include certain out-of-pocket expenses in

the attorney’s fee award.

Denver appeals the denial of its motions for judgment as a matter of law

and a new trial. Mr. Brown cross-appeals the district court’s denial of his motion

for judgment on the assigned cross-claim for defense costs. Mr. Brown also

cross-appeals the court’s failure to include out-of-pocket expenses in the fee

award. 

II

A. Sufficiency of the Evidence 

Denver argues the district court erred in refusing to grant it judgment as a

matter of law on the basis that Mr. Brown failed to meet the evidentiary

requirements necessary to establish municipal liability for Officer Gray’s actions. 
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We review the district court's denial of a motion for judgment as a matter of law

de novo, applying the same legal standard as the district court. Deters v. Equifax

Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000) (citing Baty v.

Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999)). A party is entitled

to judgment as a matter of law only if the “evidence points but one way and is

susceptible to no reasonable inferences supporting the party opposing the

motion.” Id. (internal quotations omitted). In reviewing the record, we “will not

weigh evidence, judge witness credibility, or challenge the factual conclusions of

the jury.” Id. Judgment as a matter of law is appropriate if there is no legally

sufficient evidentiary basis for a claim under the controlling law. See id. We

consider the evidence, and any inferences drawn therefrom, in favor of the

non-moving party. See id. 

At trial Mr. Brown argued for municipal liability based on a “failure to

train” theory, which was first endorsed by the Supreme Court in City of Canton v.

Harris, 498 U.S. 378 (1989). Specifically, Mr. Brown claimed Denver failed to

train its officers adequately with respect to implementing the following

Department policies:

Rule and Regulation 107 – Always on Duty

Officers are held to be always on duty, although periodically relieved from

their routine performance of it. . . . [T]he fact that they may be technically

off-duty shall not relieve them from the responsibility of taking proper

police action in any matter coming to their attention. When there is no

urgent or immediate need for police action, they may request the dispatcher
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to turn the matter over to officers on duty in the district, but they shall take

such police action as may be required prior to the arrival of the dispatched

officers. 

App., vol. I at 111.

Rule and Regulation 805 – Equipment Carried on Person

Officers shall . . . be armed at all times . . . .

Id. at 112. Both of these policies were in effect on the day of the shooting. They

will be referred to collectively in this opinion as the “always armed/always on

duty” policy.

Mr. Brown maintained that police officers were not instructed how to take

“police action” when they were off-shift and without their uniforms, police

vehicles, radios, and other accouterments of law enforcement. He contended that

despite the different circumstances presented when an officer is off-shift, the

officer training program purposefully did not distinguish between on-shift and

off-shift scenarios. Officers were instead told to respond as though they were onshift in all situations. Consequently, Officer Gray believed he was required to

take police action after he thought he saw Mr. Brown brandish a gun. However,

he could not properly pull Mr. Brown over because he was not in his patrol car,

failed to adequately identify himself as a police officer because he was not in

uniform, and inappropriately escalated the violence level of the encounter because

he was unable to call for back-up.
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In order to prevail on a claim against a municipality for failure to train its

police officers in the use of force, a plaintiff must first prove the training was in

fact inadequate, and then satisfy the following requirements: 

(1) the officers exceeded constitutional limitations on the use of force; (2)

the use of force arose under circumstances that constitute a usual and

recurring situation with which police officers must deal; (3) the inadequate

training demonstrates a deliberate indifference on the part of the city

toward persons with whom the police officers come into contact, and (4)

there is a direct causal link between the constitutional deprivation and the

inadequate training.

Allen v. Muskogee, 119 F.3d 837, 841-842 (10th Cir. 1997) (citing City of Canton,

489 U.S. at 389-91)). Denver argues Mr. Brown failed to provide sufficient

evidence that the training program was inadequate in the first instance. In

addition, while conceding that Officer Gray’s use of force exceeded constitutional

limitations, Denver disputes the sufficiency of the evidence of the remaining three

requirements.

We first address whether the jury was presented with sufficient evidence to

conclude that Denver’s training with respect to implementing its always

armed/always on duty policy was inadequate. “[A] showing of specific incidents

which establish a pattern of constitutional violations is not necessary to put the

City on notice that its training program is inadequate.” Allen, 119 F.3d at 842. In

a failure to train case where, as here, the policy itself is not unconstitutional, a

single incident of excessive force can establish the existence of an inadequate
2

 We are compelled to point out that Denver’s opening and reply briefs are replete

with instances in which it misstates the law and misrepresents the facts contained

in the record. Moreover, this is not the first time counsel for Denver has

attempted to deceive this court in a case of this nature. See Zuchel v. City &

County of Denver, 997 F.2d 730, 737 & n.2 (10th Cir. 1993) (observing that

Denver “misstates both the applicable theory of liability and the record,” and that

“throughout the proceedings . . . Denver has mischaracterized the record and has

at times arguably misrepresented it”). While we will not comment on every

instance of such mendacity in the present case, we wish to make clear this

unprofessional conduct has not gone unnoticed. Further conduct of this nature

may subject counsel for the City to sanctions.

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training program if there is some other evidence of the program’s inadequacy. 

See Allen, 119 F.3d at 844-45 (citing cases). 

Denver claims, somewhat disingenuously, that Mr. Brown put on no

evidence at trial of an inadequate training program other than the evidence of the

shooting itself.2

 See Appellant’s Br. at 19. The record belies this assertion. At

trial, Captain Michael O’Neill, a twenty-nine year veteran of the Department and

former commander of the police academy, testified that the officer training

program makes no distinction between off-duty and on-duty scenarios because

they are considered to be the same. See App., vol. II at 39. Patrick Murphy, an

expert witness with an extensive background in police policies, procedures, and

training practices, testified about the risks to citizens and officers of requiring

officers to take police action while off-shift. See id. at 76-77. If a police

department is to adopt an always armed/always on duty policy, he stated, it is

imperative that officers be trained on how to take police action in the different
3Denver maintains that the Supreme Court specifically found expert

testimony evidence insufficient to prove inadequate training in City of Oklahoma

City v. Tuttle, 471 U.S. 808 (1985). This assertion is incorrect. The problem in

Tuttle was that the trial court had instructed the jury it could infer the existence of

an inadequate training policy solely from a single incident of excessive force. See

id. at 821. This allowed the jury to disregard the independent evidence, which

included expert testimony, that the plaintiff offered to prove inadequate training. 

See id. at 821-22 (“The fact that in this case respondent introduced independent

evidence of inadequate training makes no difference, because the instruction

allowed the jury to impose liability even if it did not believe respondent’s expert

at all.”). Thus, the Supreme Court never found expert testimony to be insufficient

in this context; to the contrary, it required such additional evidence for a jury to

find municipal liability for a single incident of excessive force. 

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circumstances presented when they are off-shift. See id. at 76 (“It’s very

important that officers be given considerable training as to how they will perform

differently when off duty, and especially if a firearm is involved.”). Mr. Murphy

concluded that Denver’s failure to provide any training in this area was

inappropriate, inadequate, and insufficient.3

 See id. at 69, 74-77, 126-27, 129. 

In addition, the jury was read portions of Officer Gray’s deposition in

which he testified he felt ill-equipped to handle the encounter with Mr. Brown

because he lacked his uniform, patrol car, and radio. Officer Gray clearly and

repeatedly testified he had never received training in how to handle this type of

situation when he was off-shift:

Now if they had issued a radio to carry all the time, I would have

effectuated an arrest immediately. I would have called for backup. . . . I

was never trained off duty as to what to do in a situation like that. . . . I was

trained in an on-duty capacity, sir, to call for backup, take the suspect out

at gunpoint. I was not trained in an off-duty capacity to handle this
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situation. . . . It’s a different situation than if I were in a uniform where

[Mr. Brown] could see the marked patrol car. . . . I would have the

opportunity to call for back-up. . . . I’m trained in an on-duty capacity, . . .

I never have been trained in an off-duty capacity. . . . I was told that you

are on duty 24 hours a day.

Id. at 160-63; see also id. vol. I at 398. Officer Gray also testified he was

instructed that simply identifying himself verbally as a police officer while offshift should be sufficient to require a citizen to accede to his demands. See id. at

399; App., vol. II at 181-82. 

This evidence, along with the shooting itself, provided a sufficient basis for

the jury to determine that Denver’s training program with respect to implementing

the always armed/always on duty policy in off-shift scenarios was inadequate. 

We turn now to the sufficiency of proof of the latter three requirements of the

failure to train cause of action. 

1. Usual and Recurring Situation

To satisfy the second requirement, Mr. Brown was required to establish that

the excessive use of force occurred in circumstances constituting a usual and

recurring situation with which officers must deal. Denver begins its argument on

this issue by misrepresenting the applicable law. Citing us to City of Canton, 489

U.S. at 397, Denver claims that in order to satisfy this requirement, Mr. Brown

must provide evidence “at least of a pattern of similar incidents in which citizens

were injured or endangered.” Appellant’s Br. at 18. Denver concludes that
4We are left to wonder whether Denver actually believed we would not

notice this.

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because the shooting was an isolated occurrence, Mr. Brown failed to make this

showing. However, Denver neglects to mention that the above-quoted phrase

appears as part of a parenthetical description of a Fifth Circuit holding in a case

from 1983 cited in a separate opinion in City of Canton. As such, this is hardly a

correct assessment of the showing Mr. Brown must make to satisfy the usual and

recurring situation requirement.4 

Rather, Mr. Brown must show that the situation Officer Gray was faced

with on the day of the shooting was “common” (or at least not “uncommon”),

Allen, 119 F.3d at 842, “likel[y],” id. at 845; “foreseeable,” Zuchel, 997 F.2d at

738, or “predictable,” id. The situation need not be frequent or constant; it must

merely be of the type that officers can reasonably expect to confront. Other

circumstances that constitute usual and recurring situations for police include

individuals requiring medical care while in custody, City of Canton, 489 U.S. at

387-89, arrests of fleeing felons, id. at 390 n.10, and encounters with armed

mentally ill people, Allen, 119 F.3d at 842.

In the present case an off-shift police officer witnessed what he believed

was criminal activity and felt he was required to intervene because of the always

armed/always on duty policy. Evidence at trial demonstrated that Denver officers
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are often alerted to suspected criminal behavior at some point when they are offshift. In fact, the existence of the always armed/always on duty policy itself

indicates that the likelihood was at least common enough to warrant a policy

regarding it. Captain O’Neill testified:

[W]hen off duty, we are regularly contacted by neighbors, friends, family,

associates to deal with their issues . . . . [I]t’s not unusual to have

somebody run up and pound on your door and say that a burglar is inside

their house . . . or they’ll call you before they call the police on some type

of emergency at their home. Or we walk into 7-Eleven and there’s some

kind of craziness going on there. 

App., vol. II at 22-23. The comprehensive nature of the policy, which allows no

period of time when officers are truly off duty, increases the likelihood that an

officer will feel required to take police action while off-shift. All of this

evidence supports the jury’s determination that the circumstances preceding the

off-shift shooting constituted a usual and recurring situation. 

2. Deliberate Indifference

To satisfy the third requirement for liability, Mr. Brown had to prove the

inadequate training evidenced deliberate indifference on the part of Denver. See

City of Canton, 489 U.S. at 388. A finding of deliberate indifference in this

situation requires a showing that “the need for more or different training is so

obvious, and the inadequacy so likely to result in the violation of constitutional

rights, that the policymakers of the City can reasonably be said to have been

deliberately indifferent to the need,” id. at 390. The touchstones of this inquiry,
5Denver actually suggests in its brief that Mr. Brown’s claim should fail

because he did not call the chief of police to testify. This fixation with the chief

of police appears to come from our decision in Zuchel, in which we stated that a

jury instruction requiring “deliberate indifference on the part of the city’s chief of

police” was correct. Zuchel, 997 F.2d at 734-35. The facts of that case, however,

involved personal communications about the city’s training policies between the

chief of police and the district attorney. Our determination there that it was not

error for the trial court to instruct the jury in light of the specific evidence in no

way established a requirement that plaintiffs must prove the deliberate

indifference of the police chief as an individual in all failure to train claims. 

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therefore, are the risk inadequate training poses and the city’s awareness of that

risk.

Denver contends Mr. Brown provided insufficient evidence of deliberate

indifference because he failed to prove the existence of a pervasive problem with

the training program and that Denver’s chief of police was personally aware of

the problem and deliberately chose to ignore it. None of the Supreme Court or

Tenth Circuit failure to train cases require the plaintiff to prove the existence of a

pervasive problem. Nor must the plaintiff present explicit evidence that the chief

of police was personally aware of and chose to ignore the problem.5

 Rather, the

plaintiff must show that a policymaker, which could be the chief of police, among

others, was deliberately indifferent. See, e.g., City of Canton, 489 U.S. at 389,

390 n.10; Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); Tuttle, 471

U.S. at 823, 824; Allen, 119 F.3d at 833-844. 
6

 For example, the following exchange took place between Captain O’Neill

and Mr. Brown’s counsel:

Q: [A]ll of the . . . hours of academy training with respect to

police tactics, procedures, rules and regulation don’t make a

distinction between on duty and off duty because you believe

it’s all the same; is that fair to say?

A: Yes, sir.

App., vol. II at 39 (emphasis added).

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In this case, Mr. Brown offered sufficient evidence for the jury to conclude

that Denver was deliberately indifferent to the risks posed by the inadequate

training. Throughout the course of his testimony, Captain O’Neill was treated by

both parties as a policymaker. He stated that when he was commander of the

police academy, he was basically “in charge” of training. App., vol. I at 404. 

Later he testified that he was “the expert” with respect to police training by virtue

of his position as commander of the academy. App., vol. II at 32. Both parties

questioned Captain O’Neill about the rationale behind the Department’s failure to

train on the always armed/always on duty policy. He invariably supplied the

reasoning underlying the decision, and often referred to himself as a decisionmaker.6

 Denver never made any argument or put on any evidence to the contrary. 

As we said in Allen, 119 F. 3d at 844 n.1, “[t]here is no contention that the

training given the officers was anything other than official city policy.”
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Captain O’Neill testified repeatedly that a conscious decision was made not

to distinguish between on-shift and off-shift scenarios in the training program

because it was believed they were all the same, despite the fact that off-shift

officers would be without their radios, uniforms, and marked police cruisers. See

App., vol. II at 4-7, 18 (adopting a statement by defense counsel), 19, 24, 39. He

also stressed that no distinction was made between on- and off-shift incidents due

to the important nature of the job and the significant role police officers play in

the community. See id. at 18-19. Captain O’Neill candidly acknowledged that

the always armed/always on duty policy was risky for officers, see App., vol. II at

24 (“We’ve lost a number of officers this way, although we’ve had quite a number

of successful arrests. . . .”), but insisted that no further training was necessary for

its implementation. 

Patrick Murphy testified that this deficiency in the training was a pervasive

problem, see id. at 78, creating a dangerous situation in which a shooting was the

foreseeable result, see id. at 84. He also testified that, in his opinion, Denver’s

failure to provide training that distinguished between on- and off-shift situations

constituted deliberate indifference. See id. at 78-79. 

The always armed/always on duty policy was part of the Department’s

written regulations. Expert testimony established that always armed/always on

duty policies present serious safety risks, to officers and to the public, if officers
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are not trained in off-shift implementation. Captain O’Neill knew to a moral

certainty that the policy would result in some officers taking police action while

off-shift, yet he pursued a training program that did not adequately prepare the

officers to do so. The failure to train officers in implementing this policy was, by

Captain O’Neill’s own admission, a conscious decision based on the perception

that on-and-off-shift situations were the same. The jury was thus presented with

sufficient information to conclude that Denver policymakers were aware of and

deliberately indifferent to the risks presented by the training program’s

deficiencies. Where, as here, the evidence supports a reasonable inference

favorable to the jury verdict, the fact that a contrary inference may be drawn does

not mandate the entry of judgment as a matter of law. See Zuchel, 997 F.2d at

741. 

3. Direct Causal Link

Finally, Mr. Brown had to prove there was a causal connection between the

constitutional violation and the inadequate training. In Monell v. New York City

Dept. of Soc. Serv., 436 U.S. 658 (1978), the Supreme Court held that a

municipality cannot be liable under Section 1983 on a respondeat superior theory

for merely employing a tortfeasor. See id. at 691; see also Starrett v. Wadley, 876

F.2d 808, 818 (10th Cir. 1989). Rather, municipalities are subject to liability only
7Section 1983 does require that the constitutional deprivation consist of

action taken under color of law in order for a cause of action to lie in the first

instance. The under color of law requirement applies to unconstitutional actions

taken without the authority of the state. See Monroe v. Pape, 365 U.S. 167, 187

(1961), overruled on other grounds by Monell v. New York City Dept. of Soc.

Serv. , 436 U.S. 658 (1978) . In this case, the jury found Officer Gray was acting

under color of law when he shot Mr. Brown.

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for their official policies or customs: “[I]t is when execution of a government's

policy or custom . . . inflicts the injury that the government as an entity is

responsible under § 1983.” Monell, 436 at 694. Therefore, in order for liability

to attach in a failure to train case, “the identified deficiency in a city’s training

program must be closely related to the ultimate injury,” City of Canton, 489 U.S.

at 391, so that it “actually caused” the constitutional violation, id. 

Denver argues there was no direct causal link between the inadequate

training and the shooting because the jury found Officer Gray was acting outside

the scope of his employment. Specifically, Denver claims the shooting was

personal in nature, a manifestation of “road rage” rather than a misguided police

action. This argument fails for two reasons. First, the fact that the jury found

Officer Gray was not acting in the scope of his employment is of no consequence

to Mr. Brown’s section 1983 action. The scope of employment inquiry was

related to the district court’s interpretation of the Colorado statutes, and this

standard is not a part of the section 1983 claim.7

 Although Denver argues this

point on appeal, its defense counsel apparently conceded the issue at trial. See
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App., vol. II at 195 (“I think we all agree that scope of authority is not an element

in the 1983 claim against the City. . . .”).

Denver’s argument also fails because the jury clearly was presented with

sufficient evidence to conclude Officer Gray’s actions were directly attributable

to his position as a Denver police officer and to the dearth of instruction he

received on implementing the always armed/always on duty policy while off-shift. 

Officer Gray repeatedly testified that he was attempting to make what he believed

was a lawful arrest pursuant to that policy when he shot Mr. Brown. See App.,

vol. II at 158-59, 160, 163, 181. His testimony is buttressed by the

uncontroverted evidence that he shot Mr. Brown with his service revolver, which

the Department required him to carry at all times, and at least once identified

himself as a police officer prior to the shooting. After reading Officer Gray’s

testimony and reviewing the police department’s training policies, Mr. Brown’s

expert, Patrick Murphy, concluded Officer Gray believed he was acting as a

police officer at the time of the shooting. He attributed the incident to improper

training, stating:

I think he saw himself as a police officer clearly and dealt with it as an onduty police officer should, in his opinion. . . . I don’t think it was

appropriate, but I – in my opinion, it explains what he did; that he believed

there was a gun and he believed he should do what he did. . . . I believe he

felt that this was how he was trained, and from all of the materials I’ve

read, I conclude that that’s how he was trained.

Id. at 80.
8Denver also argues there was no direct causal relation between the policy

and the shooting because Officer Gray knew he was not supposed to intervene in

“mere traffic matters” while off-shift. This unsupported contention is irrelevant

here. Officer Gray testified that he intervened because he thought Mr. Brown

brandished a weapon at him, committing the serious crime of felony menacing. 

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Denver persists in arguing, without evidence to support its assumption and

in contradiction to Officer Gray’s testimony, that Officer Gray’s actions were the

result of personal rage and therefore not related to an official policy.8

 But mere

repetition of this theory is not sufficient to convince us the jury’s determination

should be overturned. The jury found the shooting was directly related to Officer

Gray’s position as a police officer and the Department’s failure to train him

regarding the always armed/always on duty policy. The jury was presented with

sufficient evidence on which to base this finding, and we will not disturb it

simply because Denver feels its argument is more persuasive. 

Mr. Brown presented sufficient evidence to sustain the jury’s determination

that he established the requisite elements of his failure to train claim against

Denver. Consequently, the district court properly denied Denver’s motion for

judgment as a matter of law.

B. Jury Instructions

Alternatively, Denver asserts the trial court erred in refusing to grant its

motion for a new trial due to an allegedly defective jury instruction regarding the

deliberate indifference requirement. We review a district court's decision whether
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to give a particular instruction for an abuse of discretion. However, we conduct a

de novo review to determine whether, as a whole, the instructions correctly stated

the governing law and provided the jury with an ample understanding of the

issues and applicable standards. See United States v. Jackson, 213 F.3d 1269,

1290 (10th Cir. 2000) (citing United States v. Beers, 189 F.3d 1297, 1300 (10th

Cir. 1999)). A party is not entitled to an instruction which lacks a reasonable

legal and factual basis. See id.

 Denver submitted a proposed jury instruction on deliberate indifference,

which required Mr. Brown to prove “[t]hat the decision-making authority of the

City was personally given notice of such a widespread practice and made a

conscious decision to do nothing to change the practice.” App., vol. I at 220. 

The court refused to give this instruction. Over Denver’s objection, the court

instead instructed the jury that to prove deliberate indifference Mr. Brown needed

to show that “[t]he need for more or different supervision or training is so

obvious, and the inadequacy so likely to result in the violation of constitutional

rights, that the policy of the City can be said to have been deliberately indifferent

to the need.” Id. at 260 (Instruction 4.8.2).

On appeal Denver argues the jury should have been instructed it had to find

the City’s chief of police was deliberately indifferent to the need for more

training, despite the fact that its tendered and rejected instruction made no
9The tendered instruction Denver cites us to addresses whether there was

“inadequate psychological evaluation of potential officers,” but does not mention

the adequacy of the officer training program. App., vol. I at 220. Another

tendered instruction on deliberate indifference refers to both the psychological

evaluation of potential officers and the adequacy of the training program. See id.

at 219. The psychological evaluation of potential officers does not appear to have

been part of Mr. Brown’s theory of the case, see id., vol. II at 238, and we are not

sure why the concept makes an appearance in these instructions. This confusion

may well have been an oversight on Denver’s part, although given its conduct

before this court we cannot be so sure. In any event, such instructions would

have no doubt bewildered the jury even if they did correctly state the law. 

-24-

specific mention of the chief of police. This argument fails for several reasons,

the most salient of which is the fact that the instruction given by the district court

precisely tracked the language the Supreme Court used to describe deliberate

indifference in City of Canton, 489 U.S. at 390, and as such is clearly correct. 

Moreover, an examination of the instructions as a whole indicates they accurately

stated the governing law and provided the jury with an ample understanding of

the issues. Denver’s tendered instruction, in contrast, incorrectly stated the law

and muddled the facts.9

 As the previous section on sufficiency of the evidence

makes clear, there is no requirement that a plaintiff in a failure to train case prove

the chief of police was personally deliberately indifferent to the inadequate

training program. Denver’s proposed instruction lacked a reasonable legal and

factual basis, and the district court was correct to refuse it. 
10This claim is not to be confused with Officer Gray’s cross-claim for

indemnification, on which the district court entered judgment in favor of Denver

and which is not before us on appeal.

-25-

In sum, we are convinced the district court correctly denied Denver’s

motion for judgment as a matter of law and for a new trial. We now turn to the

cross appeal.

III

A. Assigned Cross Claim for Defense Costs

The parties raise several arguments concerning Officer Gray’s assigned

cross-claim, brought under Colorado’s Peace Officer’s Act and Governmental

Immunity Act, for $123,293.77 in defense costs.10 As previously noted, the

district court made recovery on these claims contingent upon a finding that

Officer Gray was acting within the scope of his employment when he shot Mr.

Brown. The jury found he was not. The court denied Mr. Brown’s motion for the

costs of Officer Gray’s defense because it believed the Governmental Immunity

Act would require Officer Gray to reimburse Denver for them. In other words,

even if Denver paid the costs, the court thought it would be futile to allow Mr.

Brown to collect them on assignment from Officer Gray because Officer Gray

would only have to pay them back to Denver. Mr. Brown argues that the district
-26-

court misapprehended the state statutes, and that the reimbursement requirement

does not apply to Officer Gray.

We review a district court’s determination of state law de novo. See Salve

Regina College v. Russell, 499 U.S. 225, 231 (1991); May v. National Union Fire

Ins. Co., 84 F.3d 1342, 1345 (10th Cir. 1996). In order to ascertain whether the

district court correctly denied Mr. Brown’s motion for defense costs on the

grounds that the Governmental Immunity Act would require Officer Gray to

reimburse Denver, we must examine two state statutes.

The Governmental Immunity Act provides, in relevant part:

Where a claim against a public employee arises out of injuries sustained

from an act or omission of such employee which occurred or is alleged . . .

to have occurred during the performance of his duties and within the scope

of his employment, the public entity shall be liable for the reasonable 

costs of the defense and reasonable attorney fees of its public employee

unless . . . [i]t is determined by a court that the injuries did not arise out of

an act or omission of such employee occurring during the performance of

his duties and within the scope of his employment . . . . If it is so

determined, the public entity may request and the court shall order such

employee to reimburse the public entity . . . .

Colo. Rev. Stat. § 24-10-110 (emphasis added). The Governmental Immunity Act

thus requires a public employer to provide defense costs for all police officers

unless the fact finder determines he or she was acting outside the scope of duty

when the injury creating the liability occurred, in which event the officer is

required to reimburse the costs upon request. 

The Peace Officer’s Act provides, in relevant part:
-27-

Notwithstanding the doctrine[] of sovereign immunity, . . . It is the duty of

the city, town, county, city and county, or other political subdivision to

provide the defense . . . for any such peace officer in [a] claim or civil

action. However, in the event that the court determines that a peace

officer, level IIIa, incurred such liability while acting outside the scope of

his assigned duties or that such peace officer, level IIIa, acted in a willful

and wanton manner in incurring such liability, the court shall order such

peace officer, level IIIa, to reimburse the political subdivision for

reasonable costs and reasonable attorney fees expended for the defense of

such peace officer, level IIIa. 

Colo. Rev. Stat. § 29-5-111 (emphasis added). The Peace Officers Act thus draws

a distinction between level IIIa police officers and all other officers. Level IIIa

officers are reserve officers with authority to enforce the law only while actually

on duty and acting within the scope of their authority. See Colo. Rev. Stat. § 18-

1-901(1)(IV.5). They serve without compensation and are treated differently in

many respects from paid officers. The Peace Officer’s Act requires Denver to

provide a defense for all police officers, but clearly requires only level IIIa

officers to reimburse Denver if the court finds they incurred the liability while

acting outside the scope of their assigned duties. In other words, there is no

reimbursement provision for level I or other paid officers. All parties agree that

at all relevant times officer Gray was a paid level I officer.

The two statutes are thus in conflict regarding the reimbursement of

defense costs for level I officers: The Governmental Immunity Act requires all

officers to reimburse Denver if they are found to have acted outside the scope of

their employment; the Peace Officer’s Act requires only level IIIa officers to
-28-

reimburse Denver if they are found to have acted outside the scope of their

employment. The district court acknowledged this difference between the two

statutes in its pretrial Memorandum and Order dated September 23, 1996, stating

“under the Peace Officer’s Act, even if Gray’s action were found to be outside the

scope of his duties . . . Denver would be unable to recoup the costs of defending

him.” App., vol. I at 211. Without explanation, the district court’s later ruling on

the reimbursement issue relied solely on the Governmental Immunity Act and

made no mention of the Peace Officer’s Act. The correct disposition of this issue

requires us to first decide which statute to apply. 

Colorado decisional law establishes that the Governmental Immunity Act

and the Peace Officer’s Act are independent of each other and meant to be read

separately. In Antonopoulos v. Town of Telluride, 532 P.2d 346 (Colo. 1975), the

Colorado Supreme Court held that a claim against police officers pursuant to the

Peace Officer’s Act was not limited by a conflicting requirement in the

Governmental Immunity Act. The court made clear that “[t]he secondary liability

of a governmental entity . . . [under the Peace Officer’s Act] is different and

distinct from the direct liability imposed by the [Governmental] Immunity Act.” 

Id. at 397.

Moreover, fundamental rules of statutory construction require the court to

apply the Peace Officer’s Act in this situation. It is well settled that, in the event
-29-

of apparent statutory conflict, specific language overrides general language. See

Morales v. Trans World Airlines Inc., 504 U.S. 374, 384-85 (1992); Gorman v.

Tucker, 961 P.2d 1126, 1129 (Colo. 1998). The Governmental Immunity Act

pertains to governmental employees generally, while the Peace Officer’s Act

defines the rights of police officers specifically. Therefore, in light of the

conflict between the two statutes, the Peace Officer’s Act takes precedence. 

We see no reason, and Denver offers none, why Antonopoulous and the

settled principles of statutory construction should not control here. We hold that

the Peace Officer’s Act applies to Officer Gray’s assigned cross-claim for defense

costs. Pursuant to the language of this statute, the reimbursement provision does

not apply to Officer Gray, regardless of any finding regarding the “scope of

employment.” Accordingly, the district court erred by relying on the

Governmental Immunity Act to deny Mr. Brown’s motion on the ground that the

reimbursement provision applied to Officer Gray because the jury found he acted

outside the scope of his employment. 

Denver asserts that, in any event, Mr. Brown is not entitled to recover on

Officer Gray’s claim for defense costs, raising several arguments. 
-30-

1. Assignability of Claim

Denver argues the assignment of Officer Gray’s cross-claim for defense

costs to Mr. Brown was improper under Colorado law and violated Colorado’s

public policy. We disagree.

Colorado generally favors the assignment of rights pursuant to a valid

contractual arrangement. See Arvada Hardwood Floor Co. v. James, 638 P.2d

828, 830 (Colo. App. 1981). Colorado law also favors transfer of rights of action. 

See Parrish Chiropractic Ctrs., P.C. v. Progressive Casualty Ins. Co., 874 P.2d

1049, 1053 (Colo. 1994). Causes of action which survive the death of the party

entitled to sue may ordinarily be assigned, see Olmstead v. Allstate Ins. Co., 320

F. Supp. 1076, 1077 (D. Colo. 1971) (applying Colorado law), and under

Colorado law all causes of action survive death except slander and libel, see Colo.

Rev. Stat. § 13-20-101 (1987). The only assignments Colorado does not allow are

for claims involving matters of personal trust or confidence or for personal

services. See Matson v. White, 220 P.2d 864, 866 (Colo. 1950) (noting exception

and upholding assignment of claim for specific performance); Scott v. Fox Bros.

Ent., Inc., 667 P.2d 773 (Colo. App. 1983) (holding real estate option contract to

be assignable so long as optioner did not rely on personal integrity, credit, or

responsibility of original optionee).
-31-

Denver relies heavily on Roberts v. Holland & Hart, 857 P.2d 492, 495

(Colo. App. 1993), which held that public policy discourages the assignment of

legal malpractice claims. The Roberts court reasoned that legal malpractice

claims involve matters of personal trust and personal service, and permitting the

transfer of such claims would undermine the important relationship between an

attorney and client. The court was persuaded, in part, by the reasoning in

Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389 (1976): 

The assignment of such claims could relegate the legal malpractice action

to the market place and convert it to a commodity to be exploited and

transferred to economic bidders . . . who have never had any prior

connection with the assignor or his rights. The commercial aspect of

assignability of choses in action arising out of legal malpractice is rife with

probabilities that could only debase the legal profession. . . . The endless

complications and litigious intricacies arising out of such commercial

activities would place an undue burden on not only the legal profession but

the already overburdened judicial system, restrict the availability of

competent legal services, embarrass the attorney client relationship and

imperil the sanctity of the highly confidential and fiduciary relationship

existing between attorney and client.

Roberts, 857 P.2d at 495-96 (quoting Goodley, 62 Cal. App.3d at 397). These are

valid concerns. However, the assignment of defense costs presents an entirely

different situation that does not implicate these issues.

Where the assignment involves the costs of defense, an amount which has

already been determined for a service which is not the subject of dispute, the

deleterious effects warned of in Roberts do not occur. Assignment in this

circumstance does not encourage unjustified suits or force attorneys to defend
11Colorado Constitution, art. XX, section 6 states in relevant part: 

Home rule for cities and towns. The people of each city or town of this

state, having a population of two thousand inhabitants as determined by the last

(continued...)

-32-

themselves against casual purchases of causes of actions. The sanctity of the

attorney-client relationship is not invaded and the assignment does not foster the

establishment of a general market for such claims.

A claim for costs of defense is akin to the sort of fee-shifting arrangements

courts oversee every day. It is not a claim for the specific performance of

personal services. Nor does it involve matters of personal trust and confidence. 

In light of these arguments, Roberts’ inapplicability, and Colorado’s preference

for assignability of claims, we conclude the assignment of Officer Gray’s crossclaim for defense costs to Mr. Brown was proper. Cf. Baker v. Young, 798 P.2d

889 (Colo. 1990) (holding that an insurer’s obligation to defend an insured was a

property interest subject to pre-judgment attachment).

2. Colorado Constitution

Denver next claims that requiring it to pay the costs of Officer Gray’s

defense conflicts with its City Charter and therefore violates the Colorado

Constitution. Again, we disagree.

Under Colorado law, an ordinance of a home rule city (such as Denver)

supersedes a conflicting state statute if the subject matter is of purely local

concern. See Colo. Const., art. XX, § 6;11 Conrad v. City of Thornton, 553 P.2d
11(...continued)

preceding census taken under the authority of the United States, the state of

Colorado or said city or town, are hereby vested with, and they shall always have,

power to make, amend, add to or replace the charter of said city or town, which

shall be its organic law and extend to all its local and municipal matters. 

Such charter and the ordinances made pursuant thereto in such matters shall

supersede within the territorial limits and other jurisdiction of said city or town

any law of the state in conflict therewith.

-33-

822, 825 (Colo. 1976). In matters of mixed state and local concern, the state

statute trumps conflicting provisions of a city ordinance. See City & County of

Denver v. State, 788 P.2d 764, 767 (Colo. 1990). Denver argues that defense

costs for police officers constitute employee benefits which are matters of purely

local concern. Thus, Denver reasons, any state provision requiring cities to

provide this “benefit” to employees who were acting outside the scope of their

employment conflicts with Denver’s Charter, which only allows the City

Attorney’s Office to represent municipal employees in cases involving actions

taken within the scope of their employment. 

The most obvious weak point in this argument is Denver’s characterization

of defense costs as employee benefits. Denver’s apparent motivation in making

this definitional leap is to bring itself within the ambit of two Colorado cases. 

Colorado Springs Fire Fighters Ass’n v. Colorado Springs, 784 P.2d 766 (Colo.

1989), recognized that the authority to define the scope of employee

compensation, including health benefits, is of particular concern to local
-34-

government. See id. at 773 & n.18. In light of this ruling, Schaefer v. City &

County of Denver, 973 P.2d 717 (Colo. App. 1998), held that where a local

ordinance conflicted with state law regarding employee health benefits, the

ordinance controlled. See id. at 721. We are saved from having to determine

whether Denver’s classification of defense costs as employee benefits makes

sense by the fact that the Colorado courts have already spoken. In DeLong v. City

& County of Denver, 576 P.2d 537, 540 (Colo. 1978), the state supreme court

found that “governmental immunity for tortious acts of municipal police officers

is a matter of both statewide and local concern.” See also Frick v. Abell, 602

P.2d 852, 855 (Colo. 1979) (same re. indemnification of municipal police

officers). It is clear from these pronouncements that municipal liability for the

acts of police officers is a matter of concurrent state and local interest in

Colorado. The state law providing for defense costs to police officers for

defending against tort actions is much more analogous to indemnification for

liability from tort actions since both are provided for in the same subsection of

the Peace Officer’s Act, than is Denver’s provision of employee benefits. 

Therefore, the state statute controls to the extent there is a conflict, and

Colorado’s Constitution is not offended.

Moreover, it is not clear that Denver’s Charter and the Peace Officer’s Act

actually conflict. The Denver Charter limits the City Attorney’s Office to
-35-

providing representation to employees in cases involving torts committed within

the scope of their employment. See Charter, Ch. A, art. X, A10.1-1. It makes no

reference to the City’s obligation to provide costs if the defense is undertaken by

other counsel. The Peace Officer’s Act requires the public entity either to

provide a defense through its own legal staff or to pay the costs incurred “by

other counsel.” Colo. Rev. Stat. § 29-5-111(1). Denver refused to provide

Officer Gray with representation by the City Attorney’s Office even before a

determination was made whether he was acting in the scope of his employment,

and therefore Officer Gray had to retain outside counsel. Denver’s Charter does

not address this situation, and therefore it does not appear to conflict with the

state statute. Moreover, another part of the Charter, which sets out the “Rights

and Liabilities” of the City Attorney’s Office, expressly incorporates the Peace

Officer’s Act. See Charter, Ch. A, art. X, A10.8. Consequently, we do not find a

conflict between the charter and the statute.

In sum, whether a municipality provides its police officers with defense

costs against tort actions is a matter of both state and local concern. Therefore to

the extent, if any, that the charter conflicts with state law, the Peace Officer’s Act

supersedes Denver’s charter. 

3. Governmental Immunity
-36-

Denver finally argues that the Governmental Immunity Act shields it from

Officer Gray’s cross-claim. This argument might have merit but for the first six

words of the Peace Officer’s Act: “Notwithstanding the doctrines of sovereign

immunity . . . .” Colo. Rev. Stat. § 29-5-111. This clause clearly operates as a

waiver of immunity. As discussed above, the rights and duties created by the

Peace Officer’s Act are independent of and not limited by the Governmental

Immunity Act. See Antonopoulos, 532 P.2d at 349. The Peace Officer’s Act

properly applies to Officer Gray’s assigned cross-claim. Therefore, the City is

not immune. 

B. Out-of-Pocket Expenses

Mr. Brown finally contends the trial court erred by refusing to award

certain out-of-pocket expenses, amounting to approximately $22,792.65, as part

of the attorney’s fees he received pursuant to 42 U.S.C. § 1988. We review the

reasonableness of an award of attorney’s fees for abuse of discretion, giving great

weight to the district court’s assessment. See Sussman v. Patterson, 108 F.3d

1206, 1209 (10th Cir. 1997) (citing Zuchel, 997 F.2d at 743). However, we

review the district court’s statutory interpretation or legal analysis of the basis for

the award de novo. See id. (citing Beard v. Teska, 31 F.3d 942, 955 (10th Cir.

1994)).
-37-

There are two separate sources of authority courts use to award out-ofpocket expenses to a prevailing party. Some expenses, such as travel, may be

included in the concept of attorney’s fees as “incidental and necessary expenses

incurred in furnishing effective and competent representation.” 122 Cong. Rec.

H12160 (daily ed. Oct. 1, 1976) (statement of Rep. Drinan). These expenses are

thus authorized by section 1988. See Dowdell v. City of Apopka, 698 F.2d 1181,

1190 (11th Cir. 1983) (“Reasonable attorneys’ fees under [section 1988] must

include reasonable expenses because attorneys’ fees and expenses are inseparably

intertwined as equally vital components of the costs of litigation.”). Other costs,

such as interpreters’ fees and stenographic fees, are incurred by third parties who

are not attorneys for the case. These costs cannot reasonably be considered

attorney’s fees, and are instead governed by 28 U.S.C. § 1920, the general costs

statute.

We set forth the guidelines for awarding out-of-pocket expenses pursuant to

section 1988 in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983). We held there

that “[i]tems that are normally itemized and billed in addition to the hourly rate

should be included in fee allowances in civil rights cases if reasonable in

amount.” Id. at 559; see also Sussman, 108 F.3d at 1213. In other words,

reasonable out-of-pocket expenses not normally absorbed as part of law firm

overhead should be reimbursed as attorney’s fees under section 1988. In deciding
-38-

whether to award such expenses, the district court must determine whether “such

expenses are usually charged separately in the area.” Sussman, 108 F.3d at 1213. 

This necessarily involves a factual inquiry into the billing practices of law firms

in the region who provide services to fee-paying clients.

In this case, Mr. Brown’s attorneys first submitted a request to the district

court for a taxation of costs for various items pursuant to section 1920, and the

court taxed $1,000.90 of these costs to Denver. See App., vol. II at 296. The

attorneys then filed an application for attorney’s fees, requesting that the expenses

not recoverable as costs under section 1920 be awarded as fees pursuant to

section 1988. The attorneys stated that these remaining items all represented

costs that are ordinarily billed to clients. 

The district court denied this request with little explanation and without

undertaking the type of inquiry described in Ramos. Instead, the court stated,

“Brown filed no motion to review [the taxation of costs pursuant to section 1920],

nor does he provide authority for awarding costs not accounted for in that award.” 

Id. at 380. This response, combined with the court’s lack of analysis of section

1988, convinces us the court either confused the two cost statutes or failed to

appreciate the fact that Mr. Brown’s attorneys were requesting reimbursement of

the expenses as part of their attorney’s fee award pursuant to section 1988. As

such, the court’s refusal to award these expenses cannot be viewed as an exercise
-39-

of its discretion, but rather as the result of a legal error. A remand is appropriate

so the court may determine whether the expenses at issue should be awarded as

attorney’s fees under section 1988. Because the expenses incurred by Mr.

Brown’s attorneys are of a type that might be separately itemized and billed, the

court on remand should determine specifically whether such expenses are

normally billed to a private client in the local area and, if so, evaluate the

reasonableness of the amount. See Bee v. Greaves, 910 F.2d 686, 690 (10th Cir.

1990).

IV

To summarize, the district court properly denied Denver’s motion for

judgment as a matter of law based on allegedly insufficient evidence and its

motion for a new trial based on an allegedly improper jury instruction. However,

the court erred as a matter of law in denying Mr. Brown’s motion on the assigned

cross-claim for defense costs because it failed to apply the correct Colorado

statute. Finally, the court should have determined whether the out-of-pocket

expenses Mr. Brown’s attorney requested were properly includable as attorney’s

fees pursuant to 42 U.S.C. § 1988.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for

further proceedings consistent with this opinion.