## 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 Jud ge, United States

District Court for the Northern District of Oklahom a, sitting by designation. -2- Theodore S. Halaby (E. James Wilder, with him on th e briefs), of Halaby Cross & Schluter, Denver, Colorado, appearing for Defendant -Appellant. Joseph J. Mellon, of The Mellon Law Firm, Denver, C olorado, and Dwight L. Pringle, of Collins and Pringle, LLC, Denver, Color ado, 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 o f an unarmed motorist by an off-duty police officer. After settling with th e 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 certa in 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. B rown’s assigned cross-claim and request for out-of-pocket expenses.

I On the afternoon of December 13, 1994 , Clifton Bro wn 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 no t on regular shift, was driving his own car, and was not in uniform. Accor ding to Mr. Brown, the two men exchanged insulting hand gestures and thereafte r Mr. Brown noticed Officer Gray following and tailgating him for several block s. The two cars stopped at a traffic light. Officer Gray got out of his car, wa lked up to Mr. Brown’s car, and1 The shooting caused Mr. Brown a collapsed lung, shattered ribs, and

extensive nerve and muscle damage in his neck, ches t, and arm. He required months of physical therapy and additional surgery t o 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. -4- drew his service revolver out of his jacket. Offic er Gray pointed the gun at Mr. Brown’s face and shouted that he was a police offic er, 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 stoppe d 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, “Wh at 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. Brow n 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 diffe rent. He claims that, after the traffic dispute, Mr. Brown brandished a weapon at him , committing the crime of felony menacing. He therefore attempted to arre st Mr. Brown pursuant to-5-

Denver Police Department policy. Officer Gray cont ends the second time he approached Mr. Brown’s vehicle he ordered Mr. Brownto keep his hands visible. Instead of obeying this order Mr. Brown reached dow n to his right, brought his hand up, and began driving away. Officer Gray clai ms he fired because he feared Mr. Brown was both reaching for a weapon and attemp ting to flee. Mr. Brown brought this lawsuit against Officer Gray , asserting various state and federal claims. He also sued the City a nd County of Denver, asserting a claim under 42 U.S.C. § 1983 for deficiencies in De nver’s police officer training and seeking indemnification for the acts of OfficerGray under the Peace Officers Act, Colo. Rev. Stat. § 29-5-111. Officer Gray cro ss-claimed against Denver under the Peace Officers Act and the Governmental I mmunity 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 th e 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 thei r motion to substitute parties on the cross-claims, effectively upholding the assignm ent.-6-

After the settlement, Mr. Brown proceeded to a jurytrial against Denver on the section 1983 claim and the state claims for ind emnification of Officer Gray and for his costs of defense, which had been assign ed 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 ju ry a special verdict form which required it to determine both whether Mr. Bro wn 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 questio n in the negative. The district court therefore entered judgment for Mr. B rown on the section 1983 claim only, for $400,000. A series of motions followed. Denver filed a Motio n 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 Judg ment as a Matter of Law, arguing the evidence at trial was insufficient to e stablish municipal liability under section 1983. In the alternative, Denver moved fora new trial based upon an allegedly defective jury instruction. The court de nied 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, whic h amounted to $123,293.77. The court denied this motion, reasoning that the Go vernmental Immunity Act would have required Officer Gray to reimburse Denve r for the costs of his defense because the jury found he was acting outsid e the scope of his employment. Mr. Brown also applied to recover atto rney’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 c ertain out-of-pocket expenses in the attorney’s fee award. Denver appeals the denial of its motions for judgme nt as a matter of law and a new trial. Mr. Brown cross-appeals the distr ict court’s denial of his motion for judgment on the assigned cross-claim for defens e 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 liabi lity for Officer Gray’s actions.-8-

We review the district court's denial of a motion f or judgment as a matter of law de novo, applying the same legal standard as the di strict 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 i s entitled to judgment as a matter of law only if the “evidenc e points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Id. (internal quotations omitted). In reviewing the re cord, we “will not weigh evidence, judge witness credibility, or chall enge the factual conclusions of the jury.” Id. Judgment as a matter of law is appropriate if the re is no legally sufficient evidentiary basis for a claim under the controlling law. See id. We consider the evidence, and any inferences drawn the refrom, in favor of the non-moving party. See id. At trial Mr. Brown argued for municipal liability b ased on a “failure to train” theory, which was first endorsed by the Supr eme Court in City of Canton v.
Harris , 498 U.S. 378 (1989). Specifically, Mr. Brown cla imed Denver failed to train its officers adequately with respect to imple menting the following Department policies: Rule and Regulation 107 – Always on Duty Officers are held to be always on duty, although pe riodically relieved from their routine performance of it. . . . [T]he fact t hat they may be technically off-duty shall not relieve them from the responsibi lity of taking proper police action in any matter coming to their attenti on. When there is no urgent or immediate need for police action, they may request the dispatcher-9-

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 Pers on 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 en forcement. He contended that despite the different circumstances presented when an officer is off-shift, the officer training program purposefully did not disti nguish 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. Brow n brandish a gun. However, he could not properly pull Mr. Brown over because h e was not in his patrol car, failed to adequately identify himself as a police o fficer because he was not in uniform, and inappropriately escalated the violence level of the encounter because he was unable to call for back-up.-10-

In order to prevail on a claim against a municipali ty for failure to train its police officers in the use of force, a plaintiff mu st first prove the training was in fact inadequate, and then satisfy the following req uirements: (1) the officers exceeded constitutional limitation s on the use of force; (2) the use of force arose under circumstances that con stitute a usual and recurring situation with which police officers mustdeal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the police officers come i nto contact, and (4) there is a direct causal link between the constitut ional 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 fail ed to provide sufficient evidence that the training program was inadequate i n the first instance. In addition, while conceding that Officer Gray’s use o f 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 imp lementing its always armed/always on duty policy was inadequate. “[A] s howing of specific incidents which establish a pattern of constitutional violati ons is not necessary to put the City on notice that its training program is inadequ ate.” 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 th e existence of an inadequate2 We are compelled to point out that Denver’s openin g and reply briefs are replete

with instances in which it misstates the law and mi srepresents the facts contained in the record. Moreover, this is not the first tim e counsel for Denver has attempted to deceive this court in a case of this n ature. See Zuchel v. City & County of Denver , 997 F.2d 730, 737 & n.2 (10th Cir. 1993) (observi ng 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 wi ll 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. -11- 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. Br own 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 asse rtion. At trial, Captain Michael O’Neill, a twenty-nine year veteran of the Department and former commander of the police academy, testified t hat the officer training program makes no distinction between off-duty and o n-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 poli ce policies, procedures, and training practices, testified about the risks to ci tizens 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 different3 Denver maintains that the Supreme Court specificall y 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 i t could infer the existence of an inadequate training policysolelyfrom a single incident of excessive force. See id. at 821. This allowed the jury to disregard the in dependent evidence, which included expert testimony, that the plaintiff offer ed 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 exp ert 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 e xcessive force. -12- circumstances presented when they are off-shift. See id. at 76 (“It’s very important that officers be given considerable train ing as to how they will perform differently when off duty, and especially if a fire arm is involved.”). Mr. Murphy concluded that Denver’s failure to provide any trai ning 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 t he encounter with Mr. Brown because he lacked his uniform, patrol car, and radi o. 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 tim e, I would have effectuated an arrest immediately. I would have ca lled for backup. . . . I was never trained off duty as to what to do in a si tuation like that. . . . I was trained in an on-duty capacity, sir, to call for ba ckup, take the suspect out at gunpoint. I was not trained in an off-duty capa city to handle this-13-

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 verballyas 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, prov ided 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-shiftscenarios was inadequate. We turn now to the sufficiency of proof of the latt er three requirements of the failure to train cause of action. 1. Usual and Recurring Situation To satisfy the second requirement, Mr. Brown was re quired to establish that the excessive use of force occurred in circumstance s 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 satisfythis requirement, Mr. Brown must provide evidence “at least of a pattern of sim ilar incidents in which citizens were injured or endangered.” Appellant’s Br. at 18 . Denver concludes that4 We are left to wonder whether Denver actually belie ved we would not

notice this. -14- 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 aFifth 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 Offi cer Gray was faced with on the day of the shooting was “common” (or atleast 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; i t must merely be of the type that officers can reasonably expect to confront. Other circumstances that constitute usual and recurring s ituations 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 wit nessed what he believed was criminal activity and felt he was required to i ntervene because of the always armed/always on duty policy. Evidence at trial dem onstrated that Denver officers-15-

are often alerted to suspected criminal behavior atsome 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 e nough to warrant a policy regarding it. Captain O’Neill testified: [W]hen off duty, we are regularly contacted by neig hbors, 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 thata burglar is inside their house . . . or they’ll call you before they c all the police on some type of emergency at their home. Or we walk into 7-Elev en and there’s some kind of craziness going on there. App., vol. II at 22-23. The comprehensive nature o f the policy, which allows no period of time when officers are truly off duty, in creases the likelihood that an officer will feel required to take police action wh ile off-shift. All of this evidence supports the jury’s determination that th e circumstances preceding the off-shift shooting constituted a usual and recurrin g situation. 2. Deliberate Indifference To satisfy the third requirement for liability, Mr. Brown had to prove the inadequate training evidenced deliberate indifferen ce on the part of Denver. See City of Canton , 489 U.S. at 388. A finding of deliberate indiffe rence in this situation requires a showing that “the need for mor e 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 reaso nably be said to have been deliberately indifferent to the need,” id. at 390. The touchstones of this inquiry,5 Denver actually suggests in its brief that Mr. Brow n’s claim should fail

because he did not call the chief of police to test ify. 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, howe ver, involved personal communications about the city’s training policies between the chief of police and the district attorney. Our det ermination there that it was not error for the trial court to instruct the jury in l ight of the specific evidence in no way established a requirement that plaintiffs must prove the deliberate indifference of the police chief as an individual i n all failure to train claims. -16- therefore, are the risk inadequate training poses a nd the city’s awareness of that risk. Denver contends Mr. Brown provided insufficient evi dence of deliberate indifference because he failed to prove the existen ce of a pervasive problem with the training program and that Denver’s chief of pol ice was personally aware of the problem and deliberately chose to ignore it. N one of the Supreme Court or Tenth Circuit failure to train cases require the pl aintiff 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 igno re the problem. 5 Rather, the plaintiff must show that a policymaker, which couldbe 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 do n’t make a distinction between on duty and off duty because youbelieve it’s all the same; is that fair to say? A: Yes, sir. App., vol. II at 39 (emphasis added). -17- In this case, Mr. Brown offered sufficient evidence for the jury to conclude that Denver was deliberately indifferent to the ris ks 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 tra ining. App., vol. I at 404. Later he testified that he was “the expert” with re spect 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 behi nd the Department’s failure to train on the always armed/always on duty policy. H e invariably supplied the reasoning underlying the decision, and often referr ed to himself as a decisionmaker. 6 Denver never made any argument or put on any evid ence to the contrary. As we said in Allen , 119 F. 3d at 844 n.1, “[t]here is no contention t hat the training given the officers was anything other thanofficial city policy.”-18-

Captain O’Neill testified repeatedly that a conscio us 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, des pite 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 d efense 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 signific ant role police officers play in the community. See id. at 18-19. Captain O’Neill candidly acknowledged t hat the always armed/always on duty policy was risky fo r officers, see App., vol. II at 24 (“We’ve lost a number of officers this way, alth ough we’ve had quite a number of successful arrests. . . .”), but insisted that n o further training was necessary for its implementation. Patrick Murphy testified that this deficiency in th e training was a pervasive problem, see id. at 78, creating a dangerous situation in which a s hooting was the foreseeable result, see id. at 84. He also testified that, in his opinion, De nver’s failure to provide training that distinguished betw een 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 offi cers and to the public, if officers-19-

are not trained in off-shift implementation. Capta in O’Neill knew to a moral certainty that the policy would result in some offi cers taking police action while off-shift, yet he pursued a training program that d id not adequately prepare the officers to do so. The failure to train officers i n implementing this policy was, by Captain O’Neill’s own admission, a conscious decisi on based on the perception that on-and-off-shift situations were the same. Th e jury was thus presented with sufficient information to conclude that Denver poli cymakers were aware of and deliberately indifferent to the risks presented by the training program’s deficiencies. Where, as here, the evidence support s a reasonable inference favorable to the jury verdict, the fact that a cont rary 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 trainin g. 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, municipali ties are subject to liability only7 Section 1983 does require that the constitutional d eprivation consist of

action taken under color of law in order for a caus e of action to lie in the first instance. The under color of law requirement appli es 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 act ing under color of law when he shot Mr. Brown. -20- for their official policies or customs: “[I]t is w hen 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 identifi ed deficiency in a city’s training program must be closely related to the ultimate inj ury,” City of Canton , 489 U.S. at 391, so that it “actually caused” the constituti onal violation, id. Denver argues there was no direct causal link betwe en the inadequate training and the shooting because the jury found Of ficer 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. Firs t, the fact that the jury found Officer Gray was not acting in the scope of his emp loyment is of no consequence to Mr. Brown’s section 1983 action. The scope of e mployment inquiry was related to the district court’s interpretation of t he Colorado statutes, and this standard is not a part of the section 1983 claim. 7Although Denver argues this point on appeal, its defense counsel apparently con ceded the issue at trial. See-21-

App., vol. II at 195 (“I think we all agree that sc ope of authority is not an element in the 1983 claim against the City. . . .”). Denver’s argument also fails because the jury clear ly was presented with sufficient evidence to conclude Officer Gray’s acti ons were directly attributable to his position as a Denver police officer and to t he dearth of instruction he received on implementing the always armed/always onduty 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 withhis 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 tra ining policies, Mr. Brown’s expert, Patrick Murphy, concluded Officer Gray beli eved he was acting as a police officer at the time of the shooting. He att ributed 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 h e 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 80.8 Denver also argues there was no direct causal relat ion between the policy

and the shooting because Officer Gray knew he was n ot supposed to intervene in “mere traffic matters” while off-shift. This unsup ported contention is irrelevant here. Officer Gray testified that he intervened be cause he thought Mr. Brown brandished a weapon at him, committing the serious crime of felony menacing. -22- Denver persists in arguing, without evidence to sup port 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 t o an official policy. 8 But mere repetition of this theory is not sufficient to conv ince 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 Departm ent’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 pe rsuasive. Mr. Brown presented sufficient evidence to sustain the jury’s determination that he established the requisite elements of his f ailure 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 erredin refusing to grant its motion for a new trial due to an allegedly defectiv e jury instruction regarding the deliberate indifference requirement. We review a d istrict court's decision whether-23-

to give a particular instruction for an abuse of di scretion. However, we conduct a de novo review to determine whether, as a whole, th e instructions correctly stated the governing law and provided the jury with an amp le 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 instruc tion which lacks a reasonable legal and factual basis. See id. Denver submitted a proposed jury instruction on d eliberate indifference, which required Mr. Brown to prove “[t]hat the decis ion-making authority of the City was personally given notice of such a widespre ad practice and made a conscious decision to do nothing to change the prac tice.” App., vol. I at 220. The court refused to give this instruction. Over D enver’s objection, the court instead instructed the jury that to prove deliberat e indifference Mr. Brown needed to show that “[t]he need for more or different supe rvision 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 i nstructed it had to find the City’s chief of police was deliberately indiffe rent to the need for more training, despite the fact that its tendered and re jected instruction made no9 The tendered instruction Denver cites us to address es whether there was

“inadequate psychological evaluation of potential o fficers,” but does not mention the adequacy of the officer training program. App. , vol. I at 220. Another tendered instruction on deliberate indifference ref ers to both the psychological evaluation of potential officers and the adequacy o f 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 i nstructions. This confusion may well have been an oversight on Denver’s part, a lthough given its conduct before this court we cannot be so sure. In any eve nt, 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 argu ment fails for several reasons, the most salient of which is the fact that the inst ruction given by the district court precisely tracked the language the Supreme Court us ed 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 w hole indicates they accurately stated the governing law and provided the jury withan 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 evi dence makes clear, there is no requirement that a plainti ff in a failure to train case prove the chief of police was personally deliberately ind ifferent to the inadequate training program. Denver’s proposed instruction la cked a reasonable legal and factual basis, and the district court was correct t o refuse it.10 This claim is not to be confused with Officer Gray’ s cross-claim for

indemnification, on which the district court entere d judgment in favor of Denver and which is not before us on appeal. -25- In sum, we are convinced the district court correct ly denied Denver’s motion for judgment as a matter of law and for a ne w trial. We now turn to the cross appeal.

III A. Assigned Cross Claim for Defense Costs The parties raise several arguments concerning Offi cer 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 contin gent upon a finding that Officer Gray was acting within the scope of his emp loyment when he shot Mr. Brown. The jury found he was not. The court denie d Mr. Brown’s motion for the costs of Officer Gray’s defense because it believedthe Governmental Immunity Act would require Officer Gray to reimburse Denver for them. In other words, even if Denver paid the costs, the court thought itwould be futile to allow Mr. Brown to collect them on assignment from Officer Gr ay because Officer Gray would only have to pay them back to Denver. Mr. Br own argues that the district-26-

court misapprehended the state statutes, and that t he 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 re quire Officer Gray to reimburse Denver, we must examine two state statute s. The Governmental Immunity Act provides, in relevantpart: Where a claim against a public employee arises out of injuries sustained from an act or omission of such employee which occu rred or is alleged . . . to have occurred during the performance of his duti es 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 injuri es 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 c ourt 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 act ing 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 p olitical subdivision to provide the defense . . . for any such peace office r 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, lev el IIIa, acted in a willful and wanton manner in incurring such liability, the court shall order such peace officer, level IIIa, to reimburse the politic al subdivision for reasonable costs and reasonable attorney fees expen ded 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 an d all other officers. Level IIIa officers are reserve officers with authority to enf orce the law only while actually on duty and acting within the scope of their author ity. See Colo. Rev. Stat. § 18- 1-901(1)(IV.5). They serve without compensation an d are treated differently in many respects from paid officers. The Peace Office r’s Act requires Denver to provide a defense for all police officers, but clea rly requires only level IIIa officers to reimburse Denver if the court finds the y 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 o fficers. 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 Governmenta l Immunity Act requires all officers to reimburse Denver if they are found to h ave 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 d ifference between the two statutes in its pretrial Memorandum and Order datedSeptember 23, 1996, stating “under the Peace Officer’s Act, even if Gray’s acti on 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, t he district court’s later ruling on the reimbursement issue relied solely on the Govern mental Immunity Act and made no mention of the Peace Officer’s Act. The co rrect disposition of this issue requires us to first decide which statute to apply. Colorado decisional law establishes that the Govern mental 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 po lice officers pursuant to the Peace Officer’s Act was not limited by a conflictin g requirement in the Governmental Immunity Act. The court made clear th at “[t]he secondary liability of a governmental entity . . . [under the Peace Off icer’s Act] is different and distinct from the direct liability imposed by the [ Governmental] Immunity Act.” Id. at 397. Moreover, fundamental rules of statutory constructi on require the court to apply the Peace Officer’s Act in this situation. I t is well settled that, in the event-29-

of apparent statutory conflict, specific language o verrides 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 Government al 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 Office r’s Act takes precedence. We see no reason, and Denver offers none, why Antonopoulous and the settled principles of statutory construction shouldnot control here. We hold that the Peace Officer’s Act applies to Officer Gray’s a ssigned cross-claim for defense costs. Pursuant to the language of this statute, the reimbursement provision does not apply to Officer Gray, regardless of any findin g regarding the “scope of employment.” Accordingly, the district court erred by relying on the Governmental Immunity Act to deny Mr. Brown’s motio n on the ground that the reimbursement provision applied to Officer Gray bec ause the jury found he acted outside the scope of his employment. Denver asserts that, in any event, Mr. Brown is notentitled to recover on Officer Gray’s claim for defense costs, raising sev eral arguments.-30-

1. Assignability of Claim Denver argues the assignment of Officer Gray’s cros s-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 favo rs 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 su rvive 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 Color ado law), and under Colorado law all causes of action survive death exc ept slander and libel, see Colo. Rev. Stat. § 13-20-101 (1987). The only assignment s Colorado does not allow are for claims involving matters of personal trust or c onfidence or for personal services. See Matson v. White , 220 P.2d 864, 866 (Colo. 1950) (noting exception and upholding assignment of claim for specific perf ormance); 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 p ersonal 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 di scourages the assignment of legal malpractice claims. The Roberts court reasoned that legal malpractice claims involve matters of personal trust and person al service, and permitting the transfer of such claims would undermine the important relationship between an attorney and client. The court was persuaded, in p art, by the reasoning in Goodley v. Wank & Wank, Inc. , 62 Cal.App.3d 389 (1976): The assignment of such claims could relegate the le gal malpractice action to the market place and convert it to a commodity t o be exploited and transferred to economic bidders . . . who have neve r had any prior connection with the assignor or his rights. The c ommercial aspect of assignability of choses in action arising out of le gal malpractice is rife with probabilities that could only debase the legal prof ession. . . . The endless complications and litigious intricacies arising outof 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 cl ient 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 defens e costs presents an entirely different situation that does not implicate these i ssues. 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 o r force attorneys to defend11 Colorado Constitution, art. XX, section 6 states inrelevant part:

Home rule for cities and towns. The people of eac h 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 ac tions. 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 th e 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 assign ment 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 obligat ion 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 cos ts of Officer Gray’s defense conflicts with its City Charter and therefo re 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 subje ct matter is of purely local

concern. See Colo. Const., art. XX, § 6; 11 Conrad v. City of Thornton , 553 P.2d11 (...continued)

preceding census taken under the authority of the U nited States, the state of Colorado or said city or town, are hereby vested wi th, and they shall always have, power to make, amend, add to or replace the charterof said city or town, which shall be its organic law and extend to all its loca l and municipal matters. Such charter and the ordinances made pursuant there to in such matters shall supersede within the territorial limits and other j urisdiction 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 ord inance. See City & County of
Denver v. State , 788 P.2d 764, 767 (Colo. 1990). Denver argues th at defense costs for police officers constitute employee benef its which are matters of purely local concern. Thus, Denver reasons, any state pro vision requiring cities to provide this “benefit” to employees who were acting outside the scope of their employment conflicts with Denver’s Charter, which o nly 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 Den ver’s characterization of defense costs as employee benefits. Denver’s ap parent motivation in making this definitional leap is to bring itself within th e ambit of two Colorado cases. Colorado Springs Fire Fighters Ass’n v. Colorado Sp rings , 784 P.2d 766 (Colo. 1989), recognized that the authority to define the scope of employee compensation, including health benefits, is of part icular 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 alocal ordinance conflicted with state law regarding emplo yee 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 alr eady 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. indemnificatio n of municipal police officers). It is clear from these pronouncements that municipal liability for the acts of police officers is a matter of concurrent s tate and local interest in Colorado. The state law providing for defense cost s to police officers for defending against tort actions is much more analogo us 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 provisionof employee benefits. Therefore, the state statute controls to the extentthere is a conflict, and Colorado’s Constitution is not offended. Moreover, it is not clear that Denver’s Charter andthe Peace Officer’s Act actually conflict. The Denver Charter limits the City Attorney’s Office to-35-

providing representation to employees in cases invo lving 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 th e public entity eitherto provide a defense through its own legal staff orto pay the costs incurred “by other counsel.” Colo. Rev. Stat. § 29-5-111(1). D enver refused to provide Officer Gray with representation by the City Attorn ey’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 co unsel. Denver’s Charter does not address this situation, and therefore it does n ot appear to conflict with the state statute. Moreover, another part of the Chart er, which sets out the “Rights and Liabilities” of the City Attorney’s Office, exp ressly incorporates the Peace Officer’s Act. See Charter, Ch. A, art. X, A10.8. Consequently, we d o 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 stat e 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. Th is 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 limi ted 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-c laim. Therefore, the City is not immune.

B. Out-of-Pocket Expenses Mr. Brown finally contends the trial court erred byrefusing to award certain out-of-pocket expenses, amounting to approx imately $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 interpretatio n 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 expens es, such as travel, may be included in the concept of attorney’s fees as “inci dental and necessary expenses incurred in furnishing effective and competent repr esentation.” 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 cost s 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 cannotreasonably 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-poc ket 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 right s 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 abso rbed as part of law firm overhead should be reimbursed as attorney’s fees un der 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 th e billing practices of law firms in the region who provide services to fee-paying cl ients. In this case, Mr. Brown’s attorneys first submitteda request to the district court for a taxation of costs for various items pur suant 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 awar ded as fees pursuant to section 1988. The attorneys stated that these rema ining 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 c osts pursuant to section 1920], nor does he provide authority for awarding costs no t 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 tw o 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 c annot be viewed as an exercise-39-

of its discretion, but rather as the result of a le gal 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 separ ately itemized and billed, the court on remand should determine specifically wheth er such expenses are normally billed to a private client in the local ar ea 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 De nver’s motion for judgment as a matter of law based on allegedly insu fficient evidence and its motion for a new trial based on an allegedly improp er jury instruction. However, the court erred as a matter of law in denying Mr. B rown’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 proper ly 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.