Questioning authority: City of Steamboat Springs quietly fights lawsuit alleging excessive use of force
April 13, 2014
Steamboat Springs Police Department officer Evan Driscoll thought the scene looked suspicious.
He occasionally would see someone working out late at night inside the 24-hour gym along Lincoln Avenue, but at about 11 p.m. Sept. 17, 2012, the gym was dark and there were no cars in the parking lot. There was enough light coming from a beverage cooler that Driscoll said he could see someone inside. As Driscoll turned his patrol car onto 11th Street, he recognized the man inside as John Ferrugia, a known criminal with whom Driscoll had dealt before and once arrested for burglary.
Investigating complaints against officers
Steamboat Springs Police Chief Joel Rae said there are two types of investigations that can occur if someone makes a formal complaint against the police department.
In a Level 1 investigation, the complaint likely will not lead to more than a two-day suspension for the officer involved. Rae said corrective measures can include a verbal warning or an officer having to undergo additional training.
In a Level 2 investigation, the complaint could result in the termination of an officer. Outside investigators are sought to review the complaint. In the case of John Ferrugia, the Routt County District Attorney's Office reviewed the claims against the officers. They concluded there was a lack of evidence of criminal conduct by the officers to pursue prosecution.
Rae said outside private investigators have been used in the past as well as other law enforcement agencies to investigate incidents involving their own officers. The Colorado State Patrol routinely is used to investigate car accidents in which officers were involved.
The 14th Judicial District also has a Critical Incident Team. The team is used to investigate incidents such as officer-involved shootings. The Colorado Bureau of Investigation also is available to conduct independent investigations.
— Matt Stensland
The two men made eye contact, and Driscoll saw Ferrugia take a step back.
"I thought that was kind of strange, kind of suspicious," Driscoll said to his superior in an interview after the incident. "I had never seen him in there before. I have seen him walking around for the past month since he's been out of jail, so I thought he was still transient."
Driscoll, who now is a police officer on the Front Range, radioed in a possible burglary in progress.
The events that ensued resulted in Ferrugia filing a lawsuit in federal court that the city of Steamboat Springs and its attorneys have been quietly fighting. In the lawsuit, Ferrugia accuses police of unlawful arrest, civil rights violations and excessive use of force that resulted in "severe injuries requiring surgery."
As part of the lawsuit, a former Steamboat police detective, who investigated Ferrugia's allegations, gave a deposition April 1 that was highly critical of the way officers handled the incident.
"I found it very troubling that anybody was forced from a place where they lawfully could be, were injured in the process of that, and then the officers determined that they had erred in their judgment, brushed him off and walked away from it," former Detective Dave Kleiber said in the sworn testimony.
Ferrugia has retained Steamboat attorney Grant Bursek to represent him in the lawsuit.
"This is not by any means a frivolous claim," Bursek said. "I think Mr. Ferrugia has really strong claims."
The lawsuit, which was filed March 21, 2013, does not specify damages. Bursek said settlement offers have been made by both sides, but they have been too far apart. In addition to Kleiber, Ferrugia, two doctors and seven former or current police officers have given sworn depositions for the lawsuit.
"Both the District Attorney's Office and the police department reviewed the actions of these officers and found no misconduct on their part," Police Chief Joel Rae said in a prepared statement. "The City stands behind the officers, and we continue to defend the lawsuit."
Rae said he could not comment further, but the city did comply with an open records request and provided documents stemming from the internal affairs investigation related to Ferrugia's complaint. The city also responded to a records request seeking how much money the city has spent on litigation.
In the response, City Clerk Julie Franklin wrote that the bills are handled by Colorado Intergovernmental Risk Sharing Agency, a quasi-governmental organization that insures Colorado municipalities.
Franklin wrote that the city does reimburse the insurance organization up to a maximum of $50,000.
"The City has reached that threshold and is not obligated for any other legal costs or expenses of litigation in the Ferrugia lawsuit, including any damages that might be awarded," Franklin wrote.
The Colorado Intergovernmental Risk Sharing Agency denied a public records request seeking records related to the case's litigation costs.
Possible burglary in progress
After taking a taxi to Yampa Valley Medical Center to be treated for injuries sustained during his encounter with police, Ferrugia stated that he wanted to file a complaint against the officers. This launched a formal internal investigation by the Steamboat police department into the accusations.
Kleiber, the on-call detective who is now a private investigator, interviewed Ferrugia at YVMC and photographed his injuries. Assistant Chief Bob DelValle then helped interview the five Steamboat officers involved in the incident.
In a memo to Chief Rae, DelValle concluded the officers acted "appropriately and reasonably" and that Ferrugia's complaint that he was "jumped and assaulted" by officers was unfounded.
When Driscoll and backup officers went to investigate the possible burglary, they did not know Ferrugia was an employee at the gym and had permission to be there.
During the internal investigation, Sgt. Rich Brown said he noticed Ferrugia was not wearing typical workout clothes, and Ferrugia was reluctant to open the door.
"You could tell he was pretty agitated and angry that we even wanted to contact him," Brown said.
When Ferrugia opened the door, he yelled and said he had permission to be there, and the lights were off because they were on a timer. Ferrugia, who was on probation at the time, then shut the door and again told officers he had permission to be there.
"Obviously, the longer he sat there and yelled at us, the more suspicious I got about what he was doing in there," Brown said.
Brown said Ferrugia continued yelling as Brown tried to get him to come to the door again.
"Every time you guys contact me, I go to jail," Brown recalled Ferrugia saying.
Eventually, Ferrugia opened the door and again yelled he was allowed to be at the gym. Brown said he put his foot in the door, grabbed Ferrugia's arm and said he needed to come outside to talk.
"As soon as I started to pull him out, he started pulling back and flexing and curling his arm in," Brown said.
Brown was able to pull Ferrugia out of the building.
"You could tell he was going to fight with us right away," Brown said.
Brown said he thought Ferrugia would have thrown punches if he did not have ahold of his wrists. In an attempt to disable Ferrugia, officer Ross Blank delivered several knee strikes aimed at a nerve running up Ferrugia's leg, but Ferrugia did not respond, Blank said.
Brown said Ferrugia went face down into the pavement as they forced him to the ground. Officers then were able to get Ferrugia into handcuffs.
Driscoll had a Taser aimed on Ferrugia but never used it.
"He was still pissed off and yelling, and I said we are trying to figure out what's going on, and I tried to talk to him in hopes that he would be reasonable, and he kept saying that he worked there," Brown said.
After finding Ferrugia's membership card inside, officers stood Ferrugia up, and his handcuffs were removed. Brown noticed Ferrugia was hurt and offered to call an ambulance. Ferrugia declined and refused to take Brown's business card.
Another officer was able to contact the gym owner, who further confirmed Ferrugia worked there.
When asked by his superior if there was anything different he would have done, Brown said he would have insisted an ambulance come and check Ferrugia.
"I know we were there to investigate a possible burglary, and you don't like it when anything like this happens, but in retrospect, I look back and think, his actions were very suspicious, and if we would have just walked away, without making contact with him and confirming some of the stuff he said, that's not what I am here to do, you know, with keeping this community safe, preventing crime," Brown said.
Brown said Ferrugia could have been charged with a crime, specifically obstructing a police investigation, and another officer even suggested it, but Brown decided not to.
"Because I don't think that's the way we should operate," Brown said. "That because someone is a jerk and doesn't help us investigate, I'm not going to charge them with obstructing."
At YVMC, Ferrugia gave a statement to Detective Kleiber about the incident. According to Kleiber's report, Ferrugia said that during the struggle, officers were yelling, "Take him down" and "Break his arm."
During the internal investigation, Kleiber asked Sgt. Gerard Geis whether someone said, "Break his arms."
"It was said that … his arm was going to end up getting broken if he didn't get his hands behind him," Geis said. "Not, 'Break his arms.'"
Geis no longer works at the police department.
The Routt County District Attorney's Office was asked to review the incident. They declined to prosecute the case because of "lack of evidence of criminal conduct" by the officers involved.
DelValle, the assistant police chief, concluded in an internal investigation memo to Chief Rae that the officers used reasonable force. DelValle referenced the Colorado Peace Officer's Handbook. Under "Use of Force," it states: "If a suspect refuses to obey your command or request to stop, or if the suspect indicates by his actions or words that he will not stay with you while you undertake your investigation, you may use the least force necessary to detain him."
While Kleiber thinks officers had a right to contact Ferrugia, in his deposition Kleiber said it was his opinion that officers should not have used any force.
"To have physically removed him from the building, to have caused physical injury to him in that process was absolutely unnecessary to have come to the conclusion that ultimately was come to that evening," Kleiber said.
Kleiber said that when officers decided to reach in and put hands on Ferrugia, "they created a situation that was unsafe for them and a situation that was unsafe for Mr. Ferrugia."
After completing interviews with all but one of the officers involved, Kleiber said in his deposition that he expressed his concerns to DelValle, and Kleiber said DelValle was "dismissive" of those concerns.
Kleiber did not include the criticisms in the report he prepared for the internal investigation.
"I was directed by Deputy Chief DelValle not to address those issues in my report," Kleiber said.
Kleiber said he did not share his concerns with Chief Rae because DelValle was his direct supervisor.
"I told him that I did not think that the officers had … not created any type of reasonable articulable reason to physically remove him from the building, that the investigation showed he was lawfully allowed to be there, and that the process to come to that conclusion was as simple as making a phone call, and that having extracted him from the building, injured him, detained him in handcuffs, and then making the phone call was very concerning to me," Kleiber said.
In the lawsuit, Bursek also does not challenge the legality of police initially contacting Ferrugia, but he contends several mistakes were made by police, and the altercation could have been avoided with a phone call.
"There was ample time for anyone to get in touch with" the gym owner, said Bursek, who is litigating his first civil rights case.
Bursek said Ferrugia does have a history of being resistive when placed under arrest, but he is not known for carrying a weapon or throwing punches at officers. Bursek questions Brown's decision to go hands-on with Ferrugia.
"They made the situation more dangerous than what it was," said Bursek, who would not make Ferrugia available for comment.
While Ferrugia was never charged, Bursek said Ferrugia was unlawfully arrested when officers placed him in handcuffs.
"An officer has to have a reasonable belief that someone is armed and dangerous in order to use handcuffs," Bursek said.
During the incident, Bursek said Ferrugia suffered a tear to his rotator cuff and elbow ligament, which required surgery.
Bursek said it still was unclear whether an officer made a comment about breaking Ferrugia's arm.
"I've gotten all different answers," Bursek said.
To speed up the process and bypass a potentially costly jury trial, Bursek has asked the federal judge to issue a summary judgment for the unlawful arrest and municipal liability claims.
Bursek explained that in summary judgments, the judge looks at the uncontested facts in the case to determine whether laws have been broken.
Bursek, along with his law partner Clark Davidson, requested both sides go to mediation with a magistrate judge to try and negotiate a settlement. The officers named in the lawsuit, attorneys and individuals with the authority to settle the lawsuit met Thursday in Denver.
"They gave a number, and they never moved from there," Bursek said. "It was really frustrating."
No settlement was reached, and Bursek said a ruling on the summary judgment is not expected until fall, at the earliest.
On March 13, as part of a plea agreement, Ferrugia pleaded guilty to obstructing a peace officer related to an Oct. 12 arrest. He has been ordered to begin serving a five-month jail sentence by June 30. ■