brush truck

A brush truck similar to this one was driven in the incident at issue.

Wesley Cosgrove, a Colorado Springs firefighter, was driving a brush truck on Oct. 16 to a fire in Dorchester Park when he drove over what appeared to be a pile of blankets.

But those blankets turned out to be covering a homeless woman, who was killed in the incident.

He’s been charged with careless driving resulting in death, a misdemeanor, and he’ll get no help from his employer in fighting that charge.

That’s because the City Council voted 6-2 on Dec. 13 to not support Cosgrove in the criminal case (Councilor Yolanda Avila was absent).

The decision has triggered outrage among firefighters who are members of Local 5 of the International Association of Fire Fighters.

“I think it sends a terrible message to every employee of the city,” Local 5 President Curt Crumb tells Sixty35 magazine.

Councilor Dave Donelson, who with Councilor Stephannie Fortune, voted to support Cosgrove, says, “I felt it was important for the city to show our support for our fire and police, especially at this time when police have lost qualified immunity.”

He was referring to a 2020 state law that bars qualified immunity as a defense to state constitutional claims and allows a plaintiff who claims to be a victim of unconstitutional police conduct to bring a lawsuit in state court that subjects officers to a $25,000 personal liability cap if found liable for constitutional violations.

Colorado Springs Police Department reported that at 2:45 p.m. on Sunday, Oct. 16, a citizen called police to report a man attempting to start a fire in Dorchester Park, 1130 S. Nevada Ave., a long-time hangout for people experiencing homelessness.

The Fire Department responded and determined a brush truck was needed to extinguish the fire in a tree stump.

“The brush truck tried to enter the park along the southeast corner of the park,” police reported. “Due to the old parking lot being blocked off, the truck drove south from the parking area where the park and curb meet. This area has been repeatedly driven over and is therefore dirt. Where the worn dirt path and grassy area meet, there was debris consisting of blankets and other items on the ground. The brush truck attempted to turn west in this area. As the brush truck made the turn, it struck the victim, Margaret Miller, who was under the items on the ground.”

Although fire personnel immediately began lifesaving efforts, Miller, 76, died.

On Nov. 10, 4th Judicial District Attorney Michael Allen’s Office charged Cosgrove, the brush truck driver, with careless driving resulting in death, a Class 1 misdemeanor traffic offense.

The offense carries a penalty of 10 days to one year in jail and a fine of $300 to $1,000.

The statute defines the crime as an action taken by “a person who drives a motor vehicle, bicycle, electrical assisted bicycle, or low-power scooter in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances.”

Tim Bussey, a Colorado Springs criminal defense lawyer who’s handled dozens of careless driving cases and has no connection to the Cosgrove case, says the key words in the definition of the charge are “without due regard for ... attendant circumstances.”

“Here you would have a person [Cosgrove] on an emergency call,” Bussey says. “We get reports all the time of fire risk, and the person is attempting to respond to that emergency, and presumably didn’t see or have any idea that somebody might be laying under the blankets. So the burden will be on the prosecution to show beyond a reasonable doubt that this firefighter was responding without due regard for the circumstances.”

Cosgrove, a 21-year veteran of the CSFD, remains on duty as a firefighter first class, pending resolution of the case. He is slated to make a first appearance and enter a plea at a Jan. 12 court hearing.

Cosgrove had asked the city to fund his legal defense. But after City Council met in executive session about the request on Dec. 12, councilors voted the next day not to support him.

Assistant City Attorney Eric Lamphere told Council during the Dec. 13 session that in order to help Cosgrove, he had to have been acting in the scope of his employment, without malice and in good faith, and the support has to be in the city’s best interest.

“The question for the Council is whether this is in the city’s interest,” Lamphere repeated.

Mike O’Malley made a motion to withhold support, Bill Murray seconded it and the motion carried. Fortune didn’t comment, but Donelson said during the meeting, “I think it’s in the city’s interest for morale for our fire and police for us to pay for the defense of this firefighter.”

Asked about his vote later, Murray told Sixty35 via email, “On advice of the City Attorney we were advised not to. After reviewing the evidence I chose to agree.”

But Donelson tells Sixty35 that if the city did fund his criminal defense costs and he’s convicted, Cosgrove would have to repay the city, under provisions in the city code.

“So there’s no risk we would be paying the defense of someone who was found guilty,” he says.

“I can tell you this,” he adds, “there’s an investigations committee, with the mayor, fire chief, city attorney and risk manager. Their recommendation was to not pay for his criminal defense.

“I felt like the firefighter made a mistake any of us could make,” Donelson says. “He was not speeding. He tried to maneuver around some blankets that were on the ground. It’s a mistake which anyone could make. If that firefighter or police officer asks us to defend them and it’s not something you can tell it was a bad intent, I think we need to support them.”

Donelson says that being convicted of a misdemeanor doesn’t automatically result in a city employee being terminated, but if a conviction results in losing something, like a driver’s license, that’s required for the job, “that could cause a problem.”

Noting that applications for both police and fire jobs are down, Donelson adds, “Even though this involves a firefighter and not a police officer, I think police officers watch how the city supports people in a bad position,” he says.

Local 5’s Crumb says the decision should serve as a warning to all city employees who drive a vehicle as part of their jobs.

“Any one who drives a vehicle and has the ability to have something tragic like this happen, the city isn’t going to support you,” he says. “I firmly believe they should have supported his legal fees. That’s for a court to decide if he’s wrong. The city should stand by their employees. He wasn’t drunk. He had the brush truck where he was supposed to have it. He was doing something he was supposed to do. The city can’t just wash their hands. It doesn’t work that way. He was in the commission of his duties. He was on a call.”

Further, Crumb adds, “What does it say if he’s found innocent and completely guilt free? I do not feel supported by Council’s decision. This sends a message to every employee in the city.”

Cosgrove is not a member of Local 5, but if he was, “Of course we would have helped him with his legal fees,” Crumb says. “On this one, there was no malice, no negligence proven. We have reached out to help him in any way we can.”

A District Attorney’s Office spokesperson says via email, "... each case presented to the District Attorney’s Office is reviewed and charging decisions are made based on the facts and provable elements of each individual case. It makes no difference where an individual is employed. "