There are a few points that are beyond dispute. After spending 24 years in prison, Darryl Howard was exonerated of the double murder after Durham Detective Darryl Dowdy fabricated evidence against him. After trial on Howard’s § 1983 suit, the jury awarded him $6 million. And finally, the City of Durham is under no duty to pay the judgment.

Yet now the city of Durham is refusing to pay him. Instead, the city is arguing that Dowdy acted in “bad faith” during his investigation. Therefore, the city argues, Dowdy wasn’t acting within the scope of his employment, and the city is refusing to indemnify him from the jury award.

The problem is not that Durham’s position is outrageous. It is. But what’s missing in this characterization are some of the salient details that explain how it’s possible that Durham can refuse to pay Howard. You see, there is no judgment against Durham. Howard sought to hold Durham liable under a Monell theory, based on failure to train and supervise, but that claim, as well as ancillary state claims, was dismissed. Howard went to trial against Dowdy only.

But Dowdy worked for Durham? Except respondeat superior does not apply to §1983 suits. Durham is under no legal duty to indemnify its cop. That cities almost universally do so is a matter of public policy, that the failure to defend and indemnify their police would make it impossible to maintain a police force. And, indeed, Durham took that general view as well.

A city resolution establishes a uniform standard in addressing claims against the city and outlines a policy to defend officers and employees against civil claims and judgments, city attorneys have said.

It was the city’s choice to defend and indemnify, not a duty imposed by law. As the city passed a resolution, it could unpass it, or except it, as well. But more to the point, the city gave itself an escape clause just in case.

The city’s resolution states that it’s in the public interest to settle judgments against the city “if the facts and circumstances of the claim or the suit in which the judgment is entered show that the officer or employee was engaged in the good faith performance of his duties on behalf of the City when the act or omission giving rise to the claim or suit occurred,” wrote Rehberg in an email, in which she added an emphasis on good faith. “A jury of Mr. Dowdy’s peers determined that Mr. Dowdy engaged in fabrication of evidence and a bad faith failure to investigate,” she wrote.

In other words, the city decided that Dowdy’s actions were not the good faith performance of his duties as a Durham police detective, but performed in bad faith. Therefore, Durham was off the hook under its extant resolution, even though it has already paid around $4 million to defend Dowdy.

While Durham’s position here is outrageous, having been responsible for Darryl Howard’s loss of 24 years of his life to a city detective who was on the job for 36 years, there is no legal duty to pay. There should be. There could have been under the compromise that was proffered during negotiations to get rid of qualified immunity (which didn’t prevent Howard from pursuing his suit against Dowdy) by making the municipality liable in lieu of the individual police officer. But activists hated this compromise, as they wanted the cop to suffer for his misconduct and this, activists proclaimed, would let the cop off the hook and only serve to get the plaintiff compensated.

Darryl Howard would have been compensated for the 24 years he lost. Instead, he gets the satisfaction of winning against Dowdy and a piece of paper with “judgment” written on it.

All is not necessarily lost for Howard, even if he will never be able to collect his $6 million judgment from Dowdy. Public pressure may yet compel Durham to do the right thing and pay the judgment. In this regard, it’s enormously helpful that Radley Balko wrote about this in the Washington Post, putting the issue in the spotlight so that people would know that Durham has chosen not to indemnify its cop this time. Then again, it may also blow over and Howard will be left uncompensated.

What’s missing from this grievance, however, is that this is a problem that should never exist. There is no reason why respondeat superior shouldn’t apply to a government employee, making the government entity that put the wrongdoer in the position to engage in misconduct responsible for the cost of its employee’s harm. That Monell liability is nearly impossible to achieve makes this all the more imperative.

In most cases, the government entity does indemnify its personnel, which means two things. The first is that its police need not fear the cost of civil liability, which is both good and very bad as it removes the most significant incentive for police not to engage in misconduct while allowing police to do a job where there is inherently enormous room for dispute as to whether it was done properly. The second thing is that it means the victim of misconduct will get paid.

What about making the cop pay first, to wipe him out and only afterward have the city make up the shortfall? It’s a good plan to the extent the city allows it to happen. Since most governments choose to indemnify their cops as a matter of public policy, the plaintiff has no say as to who’s check gets cashed. That the judgment is satisfied is the only question, and neither plaintiff nor activist gets to pick the cop’s assets first.

But when an outlier like Durham’s refusal to indemnify Dowdy happens, it compels focus on the very pragmatic concern that faces a plaintiff in a § 1983 suit, that at the end of the suit, judgment in hand, the victim gets paid. As satisfying as a condemnation of the cop’s misconduct may be, this is a civil action for compensation of damages. And if Durham decides not to pay, and is under no duty to pay, then Darryl Howard’s win means nothing.