The city of Buffalo lawfully denied legal counsel to a police officer who was sued after being accused of using excessive force during an incident that was recorded and published by a local news station, the state's highest court said in a decision this week.

The Court of Appeals ruled that a section of the city's local laws in Buffalo could lawfully be used to deny Officer Corey Krug access to a city-paid attorney after the incident.

"Given the narrow question before us and under the circumstances presented here, we cannot say that the City's determination was 'irrational or arbitrary and capricious,'" the high court wrote in a memorandum decision.

The ruling, handed down this week, means the city of Buffalo won't have to provide an attorney for Krug to defend against the lawsuit, which is ongoing, and won't have to foot the bill for any financial consequences of the litigation.

The decision is the latest result in a series of legal challenges involving Krug since the incident was recorded and aired by Buffalo news station WKBW-TV in 2014.

Krug was patrolling an area of downtown Buffalo on the eve of Thanksgiving that year when he came across Devin Ford. Ford, Krug's attorneys have said, was thrown out of a bar after a fight, but the altercation continued on the street.

Krug approached Ford on the sidewalk, which is when a photographer from WKBW-TV happened to be there and started recording the interaction on his cellphone. 

The video showed Krug pushing Ford onto the hood of a car, then the ground. Krug is then seen using his knee to strike Ford and then using his baton several times to do the same. He stopped when another police officer approached him. Ford was released without arrest.

The incident likely would have ended there and been forgotten if the news photographer hadn't been there. The video was aired during a newscast on WKBW-TV and posted online.

That resulted in an investigation by federal prosecutors from the U.S. Attorney's Office for the Western District of New York, who later filed criminal charges against Krug over the incident. Krug was acquitted of those charges during two separate trials last year.

But at some point between when Krug was arraigned and went to trial, Ford decided to file a civil claim in Erie County Supreme Court seeking damages over the incident. 

Krug asked the city of Buffalo to provide him with legal counsel for the suit, and cover any resulting payout, but the Corporation Counsel's Office declined. They said the video and resulting federal indictment were enough to reject his request.

Krug then sued the city of Buffalo, saying state law required it to provide him with an attorney for litigation brought as a result of something that happens while he's on the clock, like the incident with Ford. 

That state law, General Municipal Law § 50-j, says a municipality shall provide an attorney for a police officer when a lawsuit is brought over an incident that happens "while in the proper discharge of his duties and within the scope of his employment."

Attorneys for the city of Buffalo pushed back, saying that a section of city law in Buffalo, § 35-28, gives the Corporation Counsel's Office discretion on when the state law is activated. 

"The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the officer or employee," the city's law reads.

In their view, according to attorneys for the city, Krug could be denied legal defense, and any resulting payout from Ford's suit, because of what was seen in the video, and the fact that he was, at the time, facing federal criminal charges over the incident.

The Court of Appeals, in its decision this week, agreed with the city's attorneys, saying their decision to deny an attorney for Krug was not irrational or unlawful.

"Insofar as the record supports the City's conclusion that petitioner was not 'acting within the scope of his public employment' under Buffalo City Code § 35-28 because his conduct constituted 'intentional wrongdoing' and violated the City's rules regarding the use of force, the City's determination was not 'taken without regard to the facts,'" the court wrote.

Buffalo corporation counsel Timothy Ball declined to comment on the outcome of the case. 

The decision was opposed by Associate Justice Rowan Wilson of the New York Court of Appeals, who wrote in a dissenting opinion that the court's five judges in the majority had based their decision on the wrong section of law. Wilson was joined on the dissent by Associate Justice Eugene Fahey of the New York Court of Appeals.

Wilson argued that, when Krug filed suit against the city of Buffalo, he'd done so under the state law, General Municipal Law § 50-j, not the section of city law the majority used to support its decision. To interpret the litigation differently was a missed opportunity, Wilson wrote.

"The unfortunate consequence of the majority's recharacterization of Officer Krug's claim is that it has transformed a case that presented as a question of statewide importance we have never addressed—the obligation to defend and indemnify under GML 50-j(1)—into a question of no importance: an interpretation of what would be required under the Buffalo City Code if GML 50-j did not exist," Wilson wrote.

Wilson went on to write that the facts of the case showed Krug was acting "within the scope of his employment," when he confronted Ford, as is required under state law for him to be provided legal counsel by the city of Buffalo.

Attorneys for the city of Buffalo hadn't conducted an investigation of the incident before they denied an attorney for Krug, Wilson wrote, and the basis on which they rejected his request wasn't enough to show he acted outside the "scope of his employment."

"Even conceding that the video shows Officer Krug using excessive force on an unarmed civilian, that is not sufficient to show that he was acting outside the scope of his duties," Wilson wrote. "Of course, some uses of excessive force must be within the scope of employment, otherwise there would be no purpose behind GML 50-j."

Krug was represented before the Court of Appeals by Ian Hayes, an associate with Creighton Johnsen & Giroux in Buffalo. Hayes wasn't immediately available for comment Wednesday.

Chief Judge Janet DiFiore and Associate Judges Jenny Rivera, Leslie Stein, Michael Garcia and Paul Feinman signed onto the memorandum majority opinion. Wilson and Fahey were on the dissent.

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