Colorado’s second-highest court ruled on Thursday that a 2020 police accountability law only contemplates that unsuccessful plaintiffs will compensate officer defendants for their costs when the claims are frivolous.

Lawmakers enacted Senate Bill 217 in the wake of protests that erupted over the May 2020 death of George Floyd at the hands of Minneapolis police. Although federal law has long enabled plaintiffs to sue state officials for violations of their rights under the U.S. Constitution, SB 217 created such a mechanism for violations of rights under the Colorado Constitution.

Normally, prevailing defendants in civil lawsuits may recover costs associated with the case, like attorney fees, filing fees and the expense of deposing witnesses. SB 217, however, allows judges to award costs to successful officer defendants for “any claims the court finds frivolous.”

Dale Waugh and a co-plaintiff filed suit against multiple Denver police officers following an August 2020 protest against city efforts to dismantle homeless encampments. Based on the physical altercation that ensued, the plaintiffs sued under SB 217.

A jury trial resulted in a verdict in favor of Waugh’s co-plaintiff and against Waugh himself on the claims of excessive force. Consequently, officer defendants Daniel Veith and Steven Anderson moved to recover their costs from Waugh.

Waugh argued the officers were only entitled to compensation if District Court Judge Stephanie L. Scoville deemed his claims frivolous. But Scoville disagreed that was what SB 217 envisioned.

“The statute plainly does not state that a trial court may award costs to a prevailing party only if the action was frivolous,” she wrote. “And nothing in the statute as a whole suggests that the General Assembly intended that commonly employed statutes and rules providing for the recovery of costs by a prevailing party should not apply to these types of actions.”

She awarded Anderson $12,835 and Veith $2,696 for docket fees, deposition and mediation costs, and evidence presentation, among other things.

Waugh turned to the Court of Appeals, arguing Scoville’s interpretation ran contrary to the intended purpose of SB 217.

“A plain reading of this statute would suggest that the General Assembly intended to establish rules specific to fees and costs,” wrote attorney E. Milo Schwab, “and to encourage individuals who have meritorious civil rights claims to bring them, both by providing recovery for private attorneys … and by protecting individuals from the costs of bringing unsuccessful, though non-frivolous, civil rights claims.”

A three-judge appellate panel agreed. Judge David H. Yun, in the April 24 opinion, noted the call-out of frivolous claims would be unnecessary if judges were allowed to award costs to successful defendants anyway. Moreover, testimony during the legislative hearings indicated lawmakers were aware defendants would not recover attorney fees in the absence of a frivolous claim.

“While this discussion focused on attorney fees and did not mention costs, it makes clear that the legislature understood the provision,” wrote Yun, “to mean that the court could not award such costs and fees unless the plaintiff’s claims were found to be frivolous.”

The panel indicated it was reversing Scoville’s order, but its ultimate conclusion was unclear.

The opinion noted it was overturning the “$12,835.14 in costs against Waugh.” But that dollar figure only represented the costs awarded to Anderson. The Court of Appeals made no mention of the additional $2,696 that Scoville awarded to Veith.

Schwab said he was “truly uncertain” what the appellate panel meant to do, considering the parties referred to both sets of costs during the appeal.

“I’m guessing that the Court of Appeals simply thought that the $12,835.14 was the total amount,” said Schwab, adding he is likely to file a motion asking for clarification. However, “I brought this appeal for the precedent, so this is a big win.”

The clerk for the Court of Appeals said she was unable to clarify the panel’s reasoning or conclusion.

The case is Waugh v. Veith et al.