One of those lawsuits stemmed from the Nov. 15, 2015 pepper-spraying of Amber Swink by then-Sgt. Judith Sealey while Swink was confined in a restraint chair. In May, former Sheriff’s Office Commander Scott Landis pleaded the Fifth Amendment against self-incrimination to questions about the incident.
FROM JULY: Federal lawsuit seeks action for Montgomery County Jail overcrowding
His attorney said the FBI asked them not to answer questions about Sealey’s pepper-spraying of Swink due to a federal investigation. The plea highlighted the potential complexity of such cases when other investigations are happening outside of the lawsuits.
At least 13 federal civil lawsuits have been filed against Montgomery County over jail operations, including one that was dismissed and another in which a jury ruled in favor of the county. Montgomery County Sheriff Phil Plummer has said lawsuits happen with an old jail, a staff that’s too small and judges who control a jail population that’s staying longer.
“We’re not prisons yet,” Plummer said last week. “So if we’re going to be held to prison standards (housing convicted defendants), we need prison resources.”
Lieberman said in an interview that the vast majority of the cost to end the lawsuits would be paid by insurance. About $1.4 million has been paid out so far ($888,000 in settlements to four plaintiffs plus ongoing legal fees), and Lieberman said what has been paid to date is just scratching the surface.
“I said up to $10 million, but we don’t know,” Lieberman said. “There are so many outstanding cases still. But we know what we’ve already settled. We know — and I can’t go into detail on each one and what we’ve offered and what’s been offered back — but it will be over $10 million when it’s all said and done with all these cases.”
RELATED: No coverup of pepper-spray incident, sheriff’s investigation finds
Montgomery County Commissioner Dan Foley didn’t put a number on lawsuit expenses.
“Obviously we don’t know what the final tally will be until they are settled or go through court,” Foley said. “But I can say this, we have been spending far too much money on these cases, and it’s got to stop.”
The biggest bills from lawsuits so far are more than $523,000 from the Emily Evans case (including a $380,000 settlement), more than $378,000 for Swink (including a $375,000 settlement) and $321,647.32 in the Robert Richardson case. Richardson died in the jail in 2012 after a medical emergency resulted in him being held on his stomach while being handcuffed behind his back for 22 minutes. That case is ongoing.
“These suits are currently pending, and there is no way anyone could speculate on what the outcome of any of them might be,” Montgomery County Prosecutor’s Office spokesperson Greg Flannagan said in a statement. “In fact, there was at least one case — brought by David Cooper (whose attorney alleged he was held in inappropriate conditions despite psychological disorders) — in which the finding was for the county and there was no monetary award.”
Sales tax increase may pay for jail improvements
Consultants have told the county’s justice committee that the jail is antiquated. A 0.25 percent Montgomery County retail sales tax increase starting Oct. 1 is projected to generate $19.1 million annually — some of that earmarked for jail improvements. Up to $5.7 million of the county’s 2019 general fund is targeted for jail facility upgrades, bail reform, staffing and programming, and another $4.3 million will follow in 2020. Officials say those funds are targeted for improving jail safety.
RELATED: Federal lawsuit seeks action for Montgomery County Jail overcrowding
Foley said he was glad the jail justice committee hired an outside professional consultant to propose improvements to jail programming, staffing and bricks and mortar investment.
“The consultant’s recommendations are going to serve as the backbone of the jail improvement strategy for years,” he said. “We have to do what we can to reduce the number of lawsuits against the jail. We want to make the jail as safe as it can be for those who are incarcerated as well as the sheriff’s staff. All our work has to be toward that end.”
Montgomery County spokesperson Cathy Petersen said the county is self-insured for the first $500,000 of all liability claims and carries $25 million combined in excess liability coverage from three carriers.
Asked if the lawsuits have raised premiums, Petersen said the county solicits quotes each year.
“The premium rates can fluctuate year to year based on market trends,” she said. “We have not been informed that our premiums have increased due to lawsuits related to the jail.”
Landis pleads Fifth, cites FBI request
Landis' attorney, Michael Brush, declined to comment about his client's refusal to answer questions in a deposition for a lawsuit brought by Charles Wade. Wade was partially restrained when he was pepper-sprayed while in the jail in October 2016.
RELATED: County spending on jail lawsuits tops $1 million
Landis’ May 2, 2018 deposition conducted by Wade’s attorney, Douglas Brannon, illustrated that the former Chief Deputy who was twice demoted down to captain before his retirement would not answer questions related to Swink’s pepper-spraying by then-Sgt. Sealey.
Brush wanted Landis to refuse to answer related questions without pleading the Fifth, but U.S. District Court Magistrate Judge Michael Newman directed Landis to answer or plead.
In a phone call with Newman and all the attorneys during the deposition, Brush said he and his client met with Federal Bureau of Investigation agents in December 2017.
“We discussed a lot of different issues, mainly around the Amber Swink issue,” Brush told Newman. “And as part of that discussion/interview, if you will, we were told by investigators not to speak about those incidents, about any details that he may or may not have known to anyone moving forward. We told them that we would do that.”
Brush said he spoke to FBI agents again before a February 2018 deposition and that “they confirmed for me that there is still an open investigation, which obviously is a criminal investigation in regards to that Amber Swink matter.”
FBI has ‘no power’ to direct someone to plead Fifth
Neither the FBI nor the U.S. Attorney’s Office would comment on any pending or completed federal investigation involving Landis’ actions, the aftermath of Swink’s pepper-spraying or allegations of missing documentation or a coverup in Plummer’s office.
RELATED: Former jail sergeant alleges cover-up of pepper-spraying
University of Dayton Professor of Law Emeritus Thomas Hagel said “the FBI has absolutely no power to direct somebody not to answer questions in a deposition” and that pleading the Fifth “can’t just be some whimsical fear of prosecution or what have you. It has to be a real, substantial fear that if he answers the question, it may implicate him in a criminal act.”
Sealey retired on medical disability and later pleaded guilty to a misdemeanor in Dayton Municipal Court. Swink, also Brannon’s client, settled her lawsuit against the county for $375,000 in August 2017.
“The U.S. Attorney’s Office and the FBI take allegations of potential federal crimes very seriously and meticulously examine all facts to determine if federal criminal charges are appropriate,” said U.S. Attorney Benjamin Glassman in a December 2017 statement when asked about the status of the case. “As a general policy, the Department of Justice defers prosecutive decisions regarding criminal civil rights matters to state and local authorities in the first instance.”
County attorney Anne Jagielski asked during the deposition that a record be made that “we asked the judge for a stay of discovery until any federal criminal investigation was concluded, and then that was denied.”
Landis didn’t recall incidents, added training
Brannon said during Landis’ deposition that he wanted to ask about the Swink case “pertaining to pattern and practice in the Montgomery County Jail. Failure to discipline, failure to train, failure to investigate, and the other allegations as pled and alleged in the complaint in that line of questioning. That case is certainly relevant from plaintiff’s perspective and bears a striking resemblance, meaning the Amber Swink case, to the events that happened in the Charles Wade case.”
RELATED: Multiple agencies probe pepper-spraying, grand juries convene
Landis said during his deposition that he didn’t recall or remember numerous incidents that led to at least eight of the federal civil lawsuits against jail personnel during his tenure from 2012 to late 2016. Landis also said he didn’t remember any training sessions aimed at stopping conduct that may lead to lawsuits.
“Landis has an incredibly selective memory,” said Hagel, who reviewed the deposition for the Dayton Daily News. “Brannon gave him a whole list of various other incidences that happened while he was running the jail, and (in) each and every one of them he came up with, he says, ‘No. I don’t recall. I don’t recall. I don’t recall.’ That’s a little hard to believe.”
In his deposition, when he was asked why he was demoted, Landis replied: “You’d have to ask the sheriff that one.”
A Dayton Daily News article published Oct. 17, 2016 — a day after the Wade incident — reported Landis was demoted after Plummer determined Landis said a corrections officer could “go back to his thug life.”
A statement from the sheriff’s office then said Landis’ demotion was a result of “his unsatisfactory work performance as the commander of the jail division.”
RELATED: Sheriff’s major demoted after ‘inappropriate comments’
‘Jails can’t be our dumping grounds’
Lieberman said some of the first results from the ongoing jail study determined upgrades and more corrections officers are needed.
“The jail itself needs to be safer,” she said. “So for at least eight years, maybe nine years now, the sheriff – and I never know which hat he has on, whether he’s being chairman of the (Montgomery County) Republican Party or sheriff — but he complains we don’t give him enough money to run the jail, which quite honestly, Ohio law, that is their mandate to run the jail.”
Plummer has said he knows the county hasn’t had the money to fulfill his wish list but that officials have cut his budget numerous times when union costs are rising.
“So over the years with cuts — we’ve done some targeted cuts — we didn’t always cut him as much as we cut other offices because public safety is very important to all of us,” Lieberman said. “So with this additional sales tax money, we have spelled it out — the additional officers, the additional money for upgrading the jail — it’s about public safety.”
RELATED: Local jails overcrowded, failing safety standards, investigation shows
Plummer — who would not address Landis’ use of the Fifth Amendment — said this past week that he hasn’t talked to any federal investigators in a long time.
In Plummer’s deposition in the Wade case, Plummer said the jail has morphed from a pretrial facility to a de facto prison for fifth-degree felony offenders.
“The whole system needs changed,” Plummer said. “Jails can’t be our dumping grounds anymore for people with mental (and drug addiction) illnesses, physical ailments.”
Plummer defended the jail’s performance and pointed to four accreditations.
“We meet and exceed all training standards,” Plummer said last week. “We meet and exceed all policies — national, state, local policies. So we’re on par with all that stuff. … Short of the proper resources, the employees are doing a good job.”
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