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

Attorneys for the city of Buffalo said during arguments before the New York Court of Appeals on Thursday that they're still not planning to foot the bill in a civil lawsuit against a police officer accused of excessive force, even though he was acquitted on federal criminal charges this year.

The court will decide whether attorneys for the city of Buffalo improperly denied that officer, Corey Krug, legal counsel in a civil lawsuit after the incident was recorded on video.

That video, obtained by a photographer from WKBW-TV, appeared to show Krug push Devin Ford onto the hood of a car and then onto the ground. Krug is then seen striking Ford with his baton several times after initially hitting him with his knee.

After Krug was charged by federal prosecutors over the incident, Ford brought a civil lawsuit against him seeking damages. Based on the charges against him, and the video, attorneys for the city of Buffalo decided to deny Krug's request for legal defense.

David Lee, an attorney for the city of Buffalo, argued before the high court Thursday that despite his acquittal on federal charges, the video justified their decision not to defend Krug.

"They say that a picture says a thousand words," Lee said. "In this case, we have a 30 second long video clip."

At least two of the judges appeared skeptical that attorneys for the city of Buffalo were lawfully allowed to deny representation and any resulting costs for Krug in the lawsuit from Ford.

Chief Judge Janet DiFiore noted that, when the city denied Krug's request for legal defense, he hadn't been convicted of anything. She also questioned whether the city could lawfully base their decision on the indictment and the video, which was only about 30 seconds long.

"This was based on allegations unproven in a federal indictment, very short few seconds in a video, and the disciplinary process," DiFiore said. "Is that a fair basis on which to deny someone a defense?"

Lee responded that the decision was ultimately within the discretion of attorneys for the city of Buffalo to decide whether Krug was acting within the scope of his employment during the incident, and should therefore be afforded legal defense, or wasn't. He said the latter.

He also noted that Ford's lawsuit was based entirely on what was seen in the video—not the federal charges, nor what happened before or after the clip.

"Everything that Ford complains about in the civil complaint is shown in that 30-second video clip," Lee said. "Ford's complaint has nothing to do with Krug's initial decision to interfere … It's the way he went about it that takes it outside the scope of his employment."

Associate Judge Eugene Fahey asked Lee if, now that Krug was acquitted of the federal charges, the city of Buffalo was planning to indemnify him for his legal costs. Lee replied that the city would likely not take that route, leaving Krug on the hook for the litigation.

"That would probably be the way it goes, yes," Lee said.

Fahey, like DiFiore, was skeptical that the city's decision could hold given that Krug was no longer accused of federal charges. He also noted that the video didn't show what happened both before and after the incident.

"The problem isn't just the video, it's that you've lost half the basis for your decision through the acquittals," Fahey said.

Ian Hayes, an associate with Creighton Johnsen & Giroux in Buffalo representing Krug, argued that the court should focus its analysis of the case on whether the city's decision was rational based on the video and the indictment alone.

He argued that, because the city hadn't pursued an investigation into the incident as to what happened before or after what's shown in the video, their decision to reject legal counsel for Krug was unlawful.

"I think the rule is that you have to investigate enough to have an adequate understanding to have context of the allegations," Hayes said.

He noted that, based on what came out in the criminal case against Krug, Ford had been ordered repeatedly by members of law enforcement to stop engaging in fights on the street. When Krug decided to confront Ford, as shown in the video, that was within his scope of employment, Hayes argued.

"My understanding is that Ford was directly ordered not to fight with people in the street and … disobeyed that police order," Hayes said.

Lee, the attorney arguing for the city of Buffalo, said their decision tracks back to a section of local law in Buffalo that he claimed only requires legal defense for individuals facing litigation over a "public duty." Krug, he argued based on the video, was not.

"If you take a look at that video and what Mr. Krug does on that video, how can anyone respectfully look at that video and say that's a public duty performed for the citizens of Buffalo?" Lee said.

The Court of Appeals will likely hand down a decision in the case next month or in December.

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