Amber Guyger should sue Dallas

By Geoff J. Henley
Dallas Morning News
Reprinted – by Texas Metro News

$98 million verdict may have gone differently if city had provided for her defense.

Amber Guyger needs to get to the courthouse, but this time as a plaintiff.

On Nov. 20, a jury delivered a $98 million verdict against the former Dallas police officer, still serving her 10-year prison sentence for killing Botham Jean in his own apartment. Without an attorney, she refused the offer of transportation from her cell in Gatesville.

The facts of the shooting are known nationwide: Guyger shot Jean when she opened the door to his apartment believing it to be her own. She was convicted of murder in 2019. Far less known, though, is why she had no lawyer for the civil case, and was not even present to defend herself.

The city of Dallas frequently retains lawyers to defend police who get sued for excessive force by lawyers like me. The city paid for such representation in Guyger’s case — that is until it decided not to. Three months after her conviction in October 2019, the defense lawyer filed a motion to withdraw, stating that the city was no longer paying his fees.

Under the city charter, the city of Dallas operates like its own insurance company. Depending on the case, it pays private law firms to defend officers, or it has the city attorney’s office represent the officers. And depending on the facts, the city pays the claims against the officers.

There are exclusions for coverage, such as if an officer intentionally violates some penal statute, like murder. But here’s the deal: every bad cop shooting or beatdown involves an intentional or at least reckless act. There is only civil liability if the officer either violated a subject’s rights deliberately or was “plainly incompetent.” Unlike, say, car accidents, these cases always blur the lines between civil and criminal acts.

Under Texas law, the city and insurance companies cannot hang someone like Guyger out to dry. They owe separate duties to defend and indemnify — that is pay the claims for those they insure. When they do not, it is called a breach of the duty of good faith and fair dealing, more commonly bad faith.

Twenty-five years ago, the city lost such a case. In City of Dallas vs. Csaszar, two officers and the Dallas Police Association sued the city and won under facts much like those in the Guyger case.

A man named Damian Okonkwo alleged two off-duty officers had beaten him up unlawfully. As with Guyger, the city hired outside counsel initially and then stopped paying for the defense. Unlike with Guyger, the police union stepped in and paid for the defense in the federal civil rights trial, which they won.

Thereafter, the DPA sued the city for the cost of its attorneys’ fees and won. An appeals court held that the underlying assault was not “necessarily an intentional, knowing or criminally negligent violation of a penal ordinance.” Police are authorized to use force for many reasons, like subduing subjects and self-defense. Those acts can result in unreasonable force and civil liability — but they are a far cry from murder plots and malicious assaults. The officers deserved representation.

Because Guyger did not get a meaningful defense, the atomic verdict is unsurprising. Amber Guyger no-showed because she did not have an attorney to defend her. There is a high probability that things would have been different if she had. Now she has a $98 million judgment against her, which will never be paid. In the end, she becomes a pauper for life and the Jeans get little more than another day in court and a hollow victory. Meanwhile, the city — which has the power and duty to prevent excessive force — gets a free pass.

Get a lawyer, Amber.

Geoff J. Henley is an attorney in Dallas.