Buffalo police officer Corey Krug, left, with his attorney Terry Connors at the Western District court in Buffalo in July. Photo: YouTube/WKBW TV

The New York Court of Appeals is set to consider next week whether Buffalo, New York, and its residents, will have to foot the bill in a civil lawsuit against a police officer who was accused of using excessive force when he repeatedly struck a man with his baton five years ago.

That officer, Corey Krug, has since been acquitted of any criminal wrongdoing related to the incident after federal prosecutors brought him up on civil rights charges in 2015.

But Devin Ford, the man who Krug allegedly assaulted while working the night shift as an officer of the Buffalo Police Department, is still pursuing civil litigation over the incident. He's seeking damages, but hasn't specified an amount in court filings. 

That's a separate, but related, matter from what the Court of Appeals, the state's highest court, is expected to consider next week.

The high court will, instead, hear arguments on whether the city is obligated to defend Krug in the lawsuit from Ford and cover the resulting costs. Krug will be represented at the Court of Appeals by Ian Hayes, an associate with Creighton Johnsen & Giroux in Buffalo.

Hayes wrote in court documents preceding next week's arguments that attorneys for the city acted unlawfully when they decided not to defend Krug in the litigation.

"In this case, it is undisputed that the Corporation Counsel made its decision not to defend Officer Krug based only on the thirty-second video clip and the existence of an indictment against Officer Krug," Hayes wrote.

The case was born from an incident between Krug and Ford that transpired the night before Thanksgiving in 2014. 

Ford, according to court filings, was in downtown Buffalo with friends that night when he was thrown out of a bar for fighting with at least one other person. Fighting allegedly continued on the street outside the bar, which is when Krug approached Ford.

At that point, a photographer from WKBW-TV who happened to be there at the time began recording the interaction between Krug and Ford.

The video shows Krug pushing Ford onto the hood of a car, and then onto the ground. Krug is then seen using his knee to strike Ford at least once, and then using his baton several times to do the same. Ford was then released without an arrest.

That video was then aired during a newscast on WKBW-TV and posted online. The video resulted in charges from federal prosecutors in Western New York, all of which have since been dropped after Krug was acquitted during two separate trials.

A few months after Krug was arraigned on the federal charges, Ford filed his lawsuit in Erie County Supreme Court seeking damages. He's represented by Christopher Pannozzo, an attorney with O'Brien & Ford in Buffalo.

The question before the Court of Appeals will be whether Krug acted within the scope of his employment as a police officer during the incident with Ford, which could require the city to defend him in the lawsuit regardless of how officials felt about the encounter. 

The city will be represented before the Court of Appeals by Assistant Corporation Counsel David Lee.

In the city's preliminary brief filed with the Court of Appeals, Lee was critical of a decision last year from the Appellate Division, Fourth Department, which found the city was required to defend Krug and indemnify him.

The appellate court, in a 3-2 vote, ruled that the video of the encounter between Krug and Ford was not enough to determine if he was acting within the scope of his employment as a police officer. Lee disagreed.

"It is difficult to understand how anyone could view the conduct captured on video and determine that additional facts would be necessary to support the City's determination," Lee wrote. "But that is beside the point."

Instead, Lee said, conflicting interpretations of the video are the very reason why attorneys for the city were lawfully entitled to deny a legal defense to Krug in the litigation. That difference in opinion showed that the city was right to question Krug's actions, he wrote.

"The majority's interpretation of the video simply conflicts with that of the Corporation Counsel," Lee wrote. "And that is an insufficient basis for annulling an administrative determination as arbitrary and capricious."

The police officer's attorneys, meanwhile, have argued that the city jumped the gun when it decided not to provide legal defense for him in the lawsuit.

Hayes, Krug's attorney, wrote in his brief to the high court that the city's attorneys unlawfully denied his request based on the video alone, without any further investigation into the incident. That video, he argued, didn't show what happened before or after the incident.

"Settling for such a lack of foundation for an important decision such as this meets the definition of arbitrary and capricious under the [Civil Practice Law and Rules] and case law," Hayes wrote.

Hayes also argued that the criminal charges against Krug shouldn't have been a factor in the city's decision because, while he was accused of a crime, he was innocent until proved guilty and should have been treated as such while requesting legal counsel.

Lee, the attorney for Buffalo, wrote that the city was justified in considering the criminal charges against Krug because a grand jury had decided, at the time, to indict him. That fact couldn't have been ignored, he wrote.

"It was not irrational for the Corporation Counsel to take the indictment into account, in conjunction with the video, in making the challenged Determination," Lee wrote.

The Court of Appeals is scheduled to hear arguments on Oct. 24.

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