Colorado SpringsNews

Use-of-force case at El Paso County jail settled for $675,000

Author: Rachel Riley, The Gazette - July 11, 2018 - Updated: July 26, 2018

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Bunk beds for inmates fill one of the areas of the El Paso County Jail in 2017. (The Gazette file photo)

El Paso County’s largest settlement in memory will go to a woman who sued over injuries she says she sustained when deputies pulled her legs out from under her and shoved her to the floor while she was in jail in 2014.

Philippa McCully, 25, will receive $675,000 — a sum greater than any payout in recent memory, county spokesman Dave Rose said.

McCully emerged from her five-day stay at the jail in April 2014 covered in bruises, with her left ACL torn, her knee fractured and injuries to her face, head and upper body, says the lawsuit filed in U.S. District Court in Denver in April 2016.

The settlement will be paid by the county’s excess insurance carrier, OneBeacon, Senior Assistant County Attorney Lisa Kirkman told county commissioners Tuesday.

The county is responsible for legal costs up to $250,000, and the outside carrier covers any additional costs, Kirkman said. That limit was reached early in this case, for which the county hired three groups of lawyers to defend a long list of defendants, she said.

Because legal expenses surpassed the cap, the county lost authority over negotiations and couldn’t weigh in on whether the case should be settled, she said.

Kirkman emphasized that the settlement is not an admission of fault or liability by the county. Instead, she said, it is a decision by OneBeacon to avoid the cost of further litigation, which likely would have cost even more.

The commissioners voted Tuesday to acknowledge that they had been briefed on the settlement, which they must sign by Thursday.

One of McCully’s attorneys, Denver civil rights lawyer Darold Killmer, said he and his client were “gratified” by the settlement.

Killmer said the incident occurred when the jail had become “a violent, dangerous facility” under management that was “appallingly indifferent” to the poor treatment of inmates and a sheriff’s administration that was embroiled in “petty interoffice political struggles.”

“Hopefully, this settlement should close a dark chapter in the history of the El Paso County Jail,” he said by email.

Undersheriff Joe Breister told commissioners that the Sheriff’s Office since has changed its policies on use of force and bolstered deputy training.

McCully, then a junior at Colorado College, was brought to jail April 21, 2014, on suspicion of felony menacing, vehicular assault and reckless driving. All but one charge eventually were dismissed. She pleaded guilty to felony menacing in 2015 and was sentenced to three years of probation and community service hours.

According to an arrest affidavit, she had told an officer that she sped up and tried to hit four classmates who she suspected were making fun of her. She denies ever telling police this, however.

The jail incident happened at 11:17 p.m., just after she’d been escorted to a holding cell, according to the lawsuit.

McCully has told The Gazette that deputies told her to sit. She didn’t hear them, asking “pardon?”

When she did not comply immediately, Deputy Kimberly Farrell and Lt. Lari Hanenberg grabbed McCully’s legs, causing her to “slam forcibly onto the cell floor, audibly hitting her head and knees against the hard concrete surface,” the lawsuit says. At the same time, Deputy Sean Grady shoved her left shoulder down and restrained her arms behind her. Several deputies then dug their knees into her back and legs, using their full or partial body weight to hold down McCully, who is 5 feet tall and weighs about 100 pounds.

Farrell, Hanenberg, Grady, several other jail staff members and former Sheriff Terry Maketa were among those named as defendants.

The county has disputed claims that McCully did nothing to warrant the take-down. Kirkman told commissioners that after McCully “mouthed back that she didn’t want to get on her knees,” one deputy pulled her legs from under her, expecting the other deputies to grab her as she toppled. No one did.

Some of the deputies were disciplined, Undersheriff Breister told The Gazette.

He declined to elaborate, citing confidential personnel matters.

The Sheriff’s Office no longer advises deputies to use the “leg sweep,” which was tried but botched with McCully, he said. Instead of pulling out an inmate’s legs, deputies now use “more of a lift-and-lower” technique, lifting an inmate before bringing them to the ground, Breister said. The tactic is often a last resort used when an inmate defies orders to get on his or her knees, he said.

The jail updated its use-of-force policy after a consulting firm recommended it make several changes in a 2015 organizational assessment. The changes include provisions that encourage deputies to verbally warn subjects and use other options, such as calling for backup, before resorting to force.

Deputies who use force on an inmate now must record information about the incident via a software program, and those reports are routed up the chain of command for review. A use-of-force incident may be investigated if it appears excessive, unreasonable or in violation of policies. If investigations find wrongdoing, jail staff may be subject to disciplinary action, ranging from termination to a letter of counseling or reprimand.

The second-largest settlement the county paid over the past five years was $300,000 in 2013 to the father of Christine Vargas, 27. She was shot to death by a deputy after she drove over his foot.

Since the beginning of 2013, the county has settled three other cases, totaling nearly $35,000, over use of force at the jail. Robert Montoya received $25,000 after a deputy allegedly assaulted him in 2013 when he complained that a carton of milk he had been served was sour.

Another former inmate, Thomas Ryan Dole, has threatened to sue the county for more than $75,000, alleging that a deputy shoved his already broken jaw against a cell wall after he complained he was served food he couldn’t eat.

Dole’s attorneys say the incident last September occurred a few days after he was in a fight with other inmates that broke his back and required his jaw be wired shut. The jail staff had placed him on a liquid diet, says a letter of claim received by the county May 30.

Sheriff’s Office reports say the deputies violated no policies, as Dole was being uncooperative.

Rachel Riley, The Gazette

Rachel Riley, The Gazette