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El Paso County deputies hear excessive-force accusations 

click to enlarge El Paso County's jail has spawned several claims. - FILE PHOTO
  • File photo
  • El Paso County's jail has spawned several claims.

When Deputy Marcus Miller fired at Christine Vargas on Sept. 13, 2011, it cost Vargas her life and El Paso County taxpayers $300,000. That was the settlement paid by the county to her father, Paul Vargas, who sued the county for excessive use of force.

Deputy Miller shot Christine Vargas, wanted for failing to appear in court on theft charges, as she tried to drive away from him and two other deputies — and drove over Miller's foot.

Miller was cleared of criminal wrongdoing by the District Attorney's Office. His only punishment was a 20-hour suspension without pay for drawing a weapon when such force wasn't warranted, according to media reports at the time. Two other deputies at the scene, Glenn Boarman and Christopher Gonzalez, received letters of reprimand for policy violations, such as failing to notify dispatch that they'd stopped a vehicle.

Sheriff's spokesperson Jackie Kirby says Miller remains on the force. Boarman and Gonzalez have since been promoted to detective and sergeant, respectively.

So that's one way El Paso County handles excessive force.

The county made two other payments to settle use-of-force cases in the past five years: One involved an elderly woman hospitalized after the SWAT team invaded her home; the other involved an inmate beaten by a deputy in the Criminal Justice Center for no apparent reason.

Total paid: $399,999, close to the city's $412,500 paid to settle four cases ("Case by case," cover story, July 15).

The county also faces two pending lawsuits and three pending claims. Kirby declined to comment on the county's legal matters.

Like the city, the county currently establishes use-of-force policies through its own chain of command. But Kirby says the department will convert to a new use-of-force training method this fall, though not because of past lawsuits or claims.

On Oct. 6, 2009, a county SWAT team crashed the home of Rose Santistevan, 69, on South Prospect Street as part of a drug bust in which her son, Kirt, was targeted, according to court documents. But Kirt Santistevan was sitting in Teller County Jail on a DUI charge at the time, a fact known to deputies, the lawsuit claims.

Though Rose Santistevan's house had "numerous signs" warning she used oxygen, officers forced their way in, "battering in her door with a ram, shattering glass all over her living room, and charging in while displaying automatic weapons," says the lawsuit. A flash bang was also detonated.

Santistevan was "seized at gunpoint" as her home filled with smoke and she tried to breathe with an oxygen hose. She was rushed to the hospital for respiratory and heart problems and spent a week there, according to the lawsuit.

The county settled the case in 2013 for $75,000.

The other settlement came on May 21, 2015, when the county paid Robert Montoya $24,999. The claim, which originally sought $1.5 million, stemmed from a June 11, 2013 attack by detentions Deputy Patrick Smith. When an inmate asked for another carton of milk because his was sour, Smith attacked Montoya unprovoked, according to the claim letter. Smith struck Montoya in the face, pushed him to a wall, beat him and sat on him, the video shows.

A pre-lawsuit letter says Montoya "was refused medical treatment for his injuries that resulted in further injuries and aggravation of injuries" including a concussion, memory and cognitive function problems, increased anxiety and post-traumatic stress disorder.

The claim was settled for an "unrealistically low" amount, says Montoya's attorney Shimon Kohn, despite it being "a very, very brutal attack."

"The value would have been considerably higher," Kohn says, "but we have an obligation to inform our client when an offer is made. It is the client's decision, which is based on their financial situation at the time."

The Sheriff's Office continues to employ Smith, Kirby says, but she refuses to say how, or whether, he was disciplined. "This discipline matter was handled under the previous administration," Kirby says in a statement, referring to the administration of former Sheriff Terry Maketa, "with full cooperation from the County Attorney's Office as it relates to the settlement." (Sheriff Bill Elder took office Dec. 31, 2014.)

click to enlarge Former Sheriff Terry Maketa's discipline measures aren't always revealed. - FILE PHOTO
  • File photo
  • Former Sheriff Terry Maketa's discipline measures aren't always revealed.

Several claim letters allege mistreatment in the jail and are explained in handwritten statements by the inmates themselves; one appears to be scrawled on a paper towel. Those types of claims seldom succeed in court.

Others are never filed, such as one case initially pursued by attorney Nathan Whitney on behalf of inmate Brian Berg. While a claim letter was submitted in February, no lawsuit was filed, so the matter is closed.

Whitney's letter says Berg was seriously injured on March 4, 2013, after the county put him in an El Paso County courthouse holding cell with 36 others, one of whom he was to testify against. That inmate ordered a cohort to attack him, and as a result Berg suffered "grave" injuries — a broken jaw and nose, a head injury and missing teeth — when thrown against the concrete wall and floor while cuffed. Deputies weren't aware of the assault because the security camera wasn't working, the letter says.

Kirby says Berg told officers he didn't have any enemies in the cell, which is documented in an intake interview. "The Sheriff's Office makes every effort and is diligent in separating individuals who are known victims, co-defendants or identified enemies," Kirby says. "Cameras ... have never been installed in this area due to age of facility and budgetary constraints. Instead, direct supervision is used."

Speaking about use-of-force training, Kirby says deputies are trained in "objective reasonableness," the legal standard for use of force. They're also trained to determine the justified amount with three measures: severity of the offense, the ongoing threat to the officer or a third party, and a suspect's attempts to flee or resist arrest.

In September, the department will start working with Lexipol, a company that provides state-specific training for public safety organizations and uses videos during roll call for patrol and detention deputies, Kirby says. Training and policy changes will come directly from the company.

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