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Brutality lawsuit sheds light on use of force by El Paso County jailers; doctors say injuries equal to NFL linebacker

May 8, 2017 Updated: May 8, 2017 at 5:06 pm
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photo - A screenshot taken from surveillance footage at the El Paso County jail depicting the moment in April 2014 when deputies took down Philippa McCully, who was arrested earlier that night after nearly hitting four women with her vehicle. McCully, who was 21 at the time, is suing over the incident. Image courtesy of McCully's attorneys.
A screenshot taken from surveillance footage at the El Paso County jail depicting the moment in April 2014 when deputies took down Philippa McCully, who was arrested earlier that night after nearly hitting four women with her vehicle. McCully, who was 21 at the time, is suing over the incident. Image courtesy of McCully's attorneys. 

Days after deputies at the El Paso County jail pulled Philippa McCully's legs out from under her and shoved her onto the floor of her holding cell, her physician told her he had only seen one other person with the same injuries: a Miami Dolphins linebacker.

In the five days of "excruciating pain" that followed the 2014 takedown in the jail, McCully, who endured two torn ligaments and a broken knee, wasn't even given an aspirin, attorneys said in a legal complaint.

McCully was arrested after she tried to hit four people with her vehicle - erratic behavior that her attorneys blame on the mix of psychiatric drugs she was prescribed for depression and anxiety. She denies the allegation that, as police said in an arrest affidavit, she told an officer she sped up and tried to hit the four women.

About 80 hours after she was injured, a staffer offered to escort her to meet with a medical professional, but she declined because she believed she would soon be released and planned to see a doctor immediately after, according to the lawsuit.

A photo taken of Philippa McCully's face after deputies at the El Paso County jail yanked her legs out from under her and pinned her to the floor of a holding cell in April 2014. The photo was taken by Defendant Detention Specialist Erik Vaupel after the takedown. McCully, who was a 21-year-old junior at Colorado College at the time, is suing the county for the "brutal treatment" and failure of the jail staff to provide medical care, according to the lawsuit. Photo Courtesy of McCully's attorneys.  

More than three years later, she still has nightmares about hitting the cell's concrete floor, she told The Gazette in an interview Friday.

The incident happened at a time when use of force reports at the jail had more than tripled in a four-year period under then-Sheriff Terry Maketa, increasing from 130 in 2010 to 458 in 2014, according to a 2015 assessment prepared for the jail by a consulting firm.

The numbers included instances of deputies slapping, punching or kicking subjects, as well as the use of handcuffs, pepper spray or tasers.

The Sheriff's Office last week downplayed the spike in use of force reports, attributing the increase to policy changes that lowered the bar for what constitutes use of force, and that required every deputy involved in a use-of-force incident to file a report instead of just one deputy, as before.

Excessive force cases that have made it to court have proven costly for El Paso County. The county has shelled out $489,000 in settlements since 2010 for excessive force cases involving Sheriff's Office staff, said county spokesman Matt Steiner.

McCully's case has already added to the tab, with a lengthy and expensive legal battle potentially taking shape.

Since her lawsuit was filed in U.S. District Court in Denver in April 2016, the county has hired lawyers from three private firms, paying more than $71,000 in legal fees. Tuesday, the El Paso County commissioners are scheduled to discuss options in the litigation in an executive session with the county attorney.

A photo taken of Philippa McCully's knees hours after deputies at the El Paso County jail pulled her legs out from under her, tearing two of the ligaments and fracturing her left knee. The photo was taken by Deputy Kimberly Farrell, one of the deputies who helped take McCully down, who is named as a defendant in McCully's lawsuit. Photo courtesy of McCully's attorneys. 

At the time, McCully was a 21-year-old junior at Colorado College. She emerged from the jail after her five-day stay in April 2014 covered in bruises, with her left ACL torn, her knee fractured and blunt trauma to her face, head and upper body, according to the lawsuit. She is suing over the "brutal treatment" and the medical staff's failure to provide care - despite her screams and her repeated cries for help, the lawsuit states.

The county, the Sheriff's Office and a lawyer representing several of the deputies who brought McCully to the floor declined to comment on the pending litigation.

One of McCully's attorneys, Darold Killmer, called the case "indefensible." He cited surveillance footage of the incident, captured by one of the jail's security cameras, which shows deputies yanking her by her legs, pulling down her pants and underwear in the process and pinning her to the floor using their knees. What she did to warrant the takedown is not clear from the video, made available to The Gazette by McCully's attorneys.

"There's no reason whatsoever for this treatment. She wasn't being disrespectful. She wasn't being noncompliant. She was just standing there. The video makes it clear as day," Killmer said.

Between 2006 and July 2016, the Sheriff's Office logged 52 complaints about excessive use of force, including 21 regarding Detention Bureau staff, according to a report released by the Sheriff's Office last week. During the roughly 10-year span, 11 of the agency's employees were disciplined for excessive use of force, including one who was fired. Information about how many of those disciplined worked at the jail was not available Friday.

In the report, Sheriff Bill Elder's administration says it has updated its use of force policy based on recommendations of KRW Associates, which the agency commissioned to prepare the 2015 organizational assessment. Among the amendments are new provisions that encourage deputies to verbally warn subjects and use other options, such as calling for backup, before resorting to physical force.

Those changes came in 2015 and 2016, after McCully's injuries.

Philippa "Pippa" McCully, left, poses with her two-year-old cousin Leah, right, on Easter of 2016. The photo was taken about two years after deputies at the El Paso County jail pulled McCully's legs out from under her while she was in a holding cell, tearing two ligaments in her leg and fracturing her knee. Photo courtesy of McCully's attorneys. 

She had no criminal history at the time of her arrest. In the lawsuit, her attorneys state that the year before, when she was a college sophomore, she was diagnosed with cancer and a rare skeletal disorder, underwent surgery to have a tumor removed and later began taking the prescribed psychiatric medications.

According to McCully's arrest affidavit, on April 21, 2014, she told police that she had tried to strike four women with her vehicle while driving on campus earlier that day because she believed they were making fun of her after she saw them "laughing and smiling in her direction." She denies ever telling police this. The women, the affidavit states, told police they were afraid for their lives, describing McCully as "out of her mind" and "not the person they used to know."

That night, she was taken into police custody on suspicion of numerous charges, including felony menacing, vehicular assault and reckless driving.

The violent incident in jail happened at 11:17 p.m., just after she'd been escorted to a holding cell.

McCully said the deputies told her to sit down and grabbed her when she did not comply immediately, asking, "Pardon?"

Deputy Kimberly Farrell, with the help of 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," her attorneys said in the complaint. At the same time, Deputy Sean Grady shoved her left shoulder down and restrained her arms behind her. Four of the deputies then dug their knees into her back and legs, using their full or partial bodyweight to hold down the 5-foot-tall, approximately 100-pound woman. They left her handcuffed, lying face-down on the cell floor where, the video shows, she struggled to sit up with her hands cuffed behind her.

After the incident, a nurse quickly cleared her of injuries.

McCully repeatedly requested medical attention, according to the complaint. She left the jail the day after she was offered the chance to meet with a medical professional, which she declined.

She moved from Colorado after the incident, but the experience still haunts her, she said. "I want to be able to just leave it in the past," she said, "but I can't."

At one point, she faced 23 counts for the incident that landed her in jail, including four counts of attempted murder, but all but one of the charges were later dismissed. She pleaded guilty to felony menacing in 2015 and was sentenced to three years of probation and community service hours. McCully, who is pursuing a bachelor's degree in economics, is slated to graduate from New York University with honors this month. She said she still experiences pain in her knee.

Her lawyers argue she was victimized by the "cruel standard operating procedure" at the jail under Sheriff Maketa. During his tenure, the county paid several settlements for excessive force.

In 2010, the county agreed to pay $80,000 to Brock John Behler, a former inmate whose arm was broken when a jailer "violently body slammed" him to the floor when he would not get out of bed for work release in 2007, according to the lawsuit. The following year, 71-year-old Rose Ann Santistevan sued the county after she had a heart attack when drug agents stormed her home two years earlier as part of an investigation by a multijurisdictional task force that included the Sheriff's Office. She was later awarded a $75,000 settlement, according to numbers provided by county spokesman Steiner.

The county settled another case in 2013, agreeing to pay $300,000 to Paul Vargas, who sued after a Sheriff's Office deputy shot and killed his 27-year-old daughter Christine Vargas as she drove over the deputy's foot. In recent years, three other settlements were paid, one to end another lawsuit and two in response to notices of claim, costing the county nearly $34,000 more.

In each case the county faces, the first $250,000 in legal and settlement fees comes from its risk management fund, which is made up of taxpayer dollars, Steiner said. Additional fees are paid for by the county's private insurance policy.

The Sheriff's Office last week provided the following on use of force reported in Maketa's final year as sheriff and Elder's first few years:

From 2014 through May 2016, the Patrol Division of the Sheriff's Office Law Enforcement Bureau documented 125 uses of force. In 2014 and 2015, the Detention Bureau's Security Division recorded 1,132 instances of use of force among floor security at the jail. From January 2015 through April 2016, 282 uses of force were reported in the jail's intake and release section.

The Elder administration issued six letters of counseling and four letters of reprimand for "unbecoming" conduct after a citizen complained last year that between 2012 and 2016, deputies working in the intake and release section competed to see who was involved in the most uses of force, according to a statement released by the Sheriff's Office.

An internal investigation found that no deputies were guilty of intentionally trying to increase the number of incidents they were a part of, although one deputy was keeping track of the reports.

The report released last week pointed to several procedural changes that may have inflated the use of force records in recent years, including the fact that beginning in 2012, multiple deputies who used force on one person were required to file duplicate reports, instead of just one report. But the 2015 report shows numbers of excessive force cases increased substantially, from 130 in 2010 to 261 in 2011, before the policy change.

Also cited in the report are factors that might affect the accuracy of use-of-force report numbers. Deputies often don't provide enough detail or use language that attempts to "soften" the amount of force used, the report states. Until early last year, the Patrol Division and Detention Bureau used separate databases to keep track of uses of force. Each system could be searched different ways, sometimes generating inconsistent results, according to the report.

In January 2016, the Sheriff's Office purchased new software that has helped to make results more consistent, said Sheriff's Office spokeswoman Jackie Kirby.

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Lance Benzel contributed to the reporting of this story.

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