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High court weighs liability for judgment against former police

The Missouri Supreme Court is weighing who, if anyone, must pay a $2.5 million award to a man arrested years ago by two discredited former St. Louis police officers.

Michael Holmes was arrested in 2003 on drug charges, convicted and sentenced to 20 years in prison. He was released in 2011, however, after the arresting officers — Bobby Lee Garrett and Shell Sharp — came under investigation for repeated misconduct and were discredited.

After prosecutors elected not to retry Holmes, he filed a civil-rights action against the officers in federal court, resulting in a $2.5 million jury award in 2016. He sought to recover the judgment from the State Legal Expense Fund, which protects state employees from liabilities that stem from their official conduct.

At the time of Holmes’ 2003 arrest, the city’s police force was under state control. The city regained control of the force in 2012.

The state argues that the expense fund isn’t responsible for the judgment. Until 2005, the city had paid for judgments against the St. Louis Board of Police Commissioners, which controls the department. But in a ruling early that year, Smith v. State, the Supreme Court said the board was a state agency and that the expense fund was responsible for its costs.

The legislature immediately passed a statute saying that the state fund’s coverage didn’t extend to the board and its police officers. The conduct that led to Holmes’ judgment, however, predated that statute by two years.

Citing that statute, Deputy Solicitor General Zachary Bluestone said the fund wasn’t liable.

“The General Assembly went out of its way to make clear that it never intended the [Legal Expense Fund] to cover police officers,” he told the court on Jan. 14.

But David B. Owens of Loevy & Loevy in Chicago, an attorney for Holmes, argued that the statute in effect in 2003 said coverage was triggered “upon conduct” by the employee. He argued that the two officers who arrested Holmes had a “substantial right” to that state-provided coverage that couldn’t be taken away retroactively.

If the Supreme Court were to adopt the state’s interpretation, Owens said, “there’s a serious chance that this judgment will not be paid by anyone.”

Bluestone said that if the state was not responsible for Holmes’ judgment, then the city would be. But Nancy Kistler, deputy city counselor for St. Louis, argued that when St. Louis Circuit Judge Joan L. Moriarty held that the state was liable, “in essence” that meant the city wasn’t on the hook.

The attorneys, responding to several judges’ questions, conceded that Moriarty’s ruling didn’t determine the city’s liability one way or another, raising questions of whether that order was even final.

“The fact that everybody seems to agree what the answer should have been doesn’t mean that the trial court gave an answer,” Judge Paul C. Wilson said.

The case is Holmes v. Steelman et al., SC97983.