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$9 Million Jury Award In Arizona County Jail Death
by John E. Dannenberg
A federal jury awarded $9 million to the family of a Scottsdale, Arizona prisoner who suffocated in a restraint chair in the Maricopa County Jail (MCJ) in 2001. Found negligent and liable were Sheriff Joe Arpaio and nurses from contract healthcare provider Correctional Health Services (CHS). This award comes on the heels of an $8.5 million settlement in another MCJ restraint chair death when 33 year-old Scott Norberg died in June 1996.
On August 6, 2001, Charles Agster III, mentally retarded and high on methamphetamine, was forcibly put in a restraint chair by nine guards in the MCJ. They put a hood over his head, whereafter Agster stopped breathing and died three days later. The last moments of Agsters 45-minute stay inside the jail were videotaped.
Agsters attorney, Michael Manning [who had previously represented the Norberg family], focused the blame where it belonged. He asked the jury to only return $1 judgments against the nine involved guards, because they had never been trained on how to safely use restraint chairs. They [did] two to 13 chairings every night in the [now-closed] Madison Street jail and not one of those people have ever been trained on how to do it safely without killing someone, Manning explained. Sheriff Arpaio continued to maintain, My officers did not cause this man to die.
Obviously, the jury agreed. They found Arpaio, not his guards, caused this man to die, by failure to train his guards. In fact, the jury awarded $4.5 million in compensatory damages against the sheriffs office. In addition, the jury awarded $2.2 million against CHS for its failure to give CPR to Agster for 15 minutes after he stopped breathing. Finally, the jury levied $180,000 in compensatory damages plus $2 million in punitive damages against CHS nurse Betty Lewis. Overall, the jurys award had been $10 million, but it assigned $1 million in contributive liability against Agster himself, his parents and the person who sold him the methamphetamine.
The legal path to the damages trial was tortuous. First, Sheriff Arpaio tried to hide what happened by declaring the incident files confidential. He ultimately lost this in the Ninth Circuit U.S. Court of Appeals (Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005). Next, the defendants claimed qualified immunity. The Ninth Circuit affirmed the district courts ruling that the nurses and guards were not entitled to qualified immunity, but found that Arpaio was so entitled, because he had no direct participation in the restraint actions. The court expressly ruled that Arpaios famed swagger and braggadocio alone could not inculpate him. See: Agster v. Maricopa County, 144 Fed.Appx. 594, (9th Cir. 2005). Thus, the scene was set for a liability trial against the guards and nurses who did participate. The Sheriffs Department was found liable because of its policy to routinely use the restraint chair without training its staff, which exposed prisoners to repeat susceptibility to the positional asphyxia suffered by victims Norberg and Agster.
Attorney Manning was outspoken. This countys own paid consultants ... have been telling this county for five and six years that there are serious and lethal problems in Joe Arpaios jails. This jury now shouts from this roof that they agree. Manning added, What does that tell you about the culture of the sheriffs department? This is not a Third World country, but we have a sheriffs department that handles things like [it is]. The legend of Joe Arpaio endures. See: Agster v. Maricopa County, USDC D AZ, Case No. CV-02-01686-JAT.
Other sources: Phoenix New Times, Scottsdale Tribune.
A federal jury awarded $9 million to the family of a Scottsdale, Arizona prisoner who suffocated in a restraint chair in the Maricopa County Jail (MCJ) in 2001. Found negligent and liable were Sheriff Joe Arpaio and nurses from contract healthcare provider Correctional Health Services (CHS). This award comes on the heels of an $8.5 million settlement in another MCJ restraint chair death when 33 year-old Scott Norberg died in June 1996.
On August 6, 2001, Charles Agster III, mentally retarded and high on methamphetamine, was forcibly put in a restraint chair by nine guards in the MCJ. They put a hood over his head, whereafter Agster stopped breathing and died three days later. The last moments of Agsters 45-minute stay inside the jail were videotaped.
Agsters attorney, Michael Manning [who had previously represented the Norberg family], focused the blame where it belonged. He asked the jury to only return $1 judgments against the nine involved guards, because they had never been trained on how to safely use restraint chairs. They [did] two to 13 chairings every night in the [now-closed] Madison Street jail and not one of those people have ever been trained on how to do it safely without killing someone, Manning explained. Sheriff Arpaio continued to maintain, My officers did not cause this man to die.
Obviously, the jury agreed. They found Arpaio, not his guards, caused this man to die, by failure to train his guards. In fact, the jury awarded $4.5 million in compensatory damages against the sheriffs office. In addition, the jury awarded $2.2 million against CHS for its failure to give CPR to Agster for 15 minutes after he stopped breathing. Finally, the jury levied $180,000 in compensatory damages plus $2 million in punitive damages against CHS nurse Betty Lewis. Overall, the jurys award had been $10 million, but it assigned $1 million in contributive liability against Agster himself, his parents and the person who sold him the methamphetamine.
The legal path to the damages trial was tortuous. First, Sheriff Arpaio tried to hide what happened by declaring the incident files confidential. He ultimately lost this in the Ninth Circuit U.S. Court of Appeals (Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005). Next, the defendants claimed qualified immunity. The Ninth Circuit affirmed the district courts ruling that the nurses and guards were not entitled to qualified immunity, but found that Arpaio was so entitled, because he had no direct participation in the restraint actions. The court expressly ruled that Arpaios famed swagger and braggadocio alone could not inculpate him. See: Agster v. Maricopa County, 144 Fed.Appx. 594, (9th Cir. 2005). Thus, the scene was set for a liability trial against the guards and nurses who did participate. The Sheriffs Department was found liable because of its policy to routinely use the restraint chair without training its staff, which exposed prisoners to repeat susceptibility to the positional asphyxia suffered by victims Norberg and Agster.
Attorney Manning was outspoken. This countys own paid consultants ... have been telling this county for five and six years that there are serious and lethal problems in Joe Arpaios jails. This jury now shouts from this roof that they agree. Manning added, What does that tell you about the culture of the sheriffs department? This is not a Third World country, but we have a sheriffs department that handles things like [it is]. The legend of Joe Arpaio endures. See: Agster v. Maricopa County, USDC D AZ, Case No. CV-02-01686-JAT.
Other sources: Phoenix New Times, Scottsdale Tribune.
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Related legal cases
Agster v. Maricopa County
| Year | 2006 |
|---|---|
| Cite | USDC D AZ, Case No. CV-02-01686-JAT |
| Level | District Court |
| Conclusion | Jury Verdict |
| Attorney Fees | 0 |
| Damages | 9000000 |
| Injunction Status | N/A |
Agster v. Maricopa County
| Year | 2005 |
|---|---|
| Cite | 144 Fed.Appx. 594, (9th Cir. 2005) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
[U] Agster v. Maricopa County Sheriff's Office, 144 Fed.Appx. 594 (9th Cir. 07/20/2005)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] Nos. 04-16786 & 04-16844
[3] 144 Fed.Appx. 594, 2005
[4] July 20, 2005
[5] CAROL ANN AGSTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES J. AGSTER, III, DECEASED, AND AS SURVIVING PARENT OF CHARLES J. AGSTER, III; CHARLES J. AGSTER, JR., SURVIVING PARENT OF CHARLES J. AGSTER, III, PLAINTIFFS - APPELLEES,
v.
MARICOPA COUNTY SHERIFF'S OFFICE, A DIVISION OF MARICOPA COUNTY; JOSEPH M. ARPAIO, SHERIFF; BARUCH A. REUSCH; JANE DOE REUSCH, WIFE; LEAH R. COMPTON; JOHN DOE COMPTON, HUSBAND; KRISTINE KEMPER; JAMES E. CROUCH, HUSBAND, AKA JOHN DOE KEMPER; AMANDA S. GARRISON; JOHN DOE GARRISON, HUSBAND; SUSAN E. FISHER; JOHN DOE FISHER, HUSBAND; ERIC NULPH; JANE DOE NULPH, WIFE; KATHERINA BROKSCHMIDT; CHARLES BROKSCHMIDT, HUSBAND, AKA JOHN DOE BROKSCHMIDT; MICHAEL C. WILKINS; KATHLEEN WILKINS, WIFE, AKA JANE DOE WILKINS; LAURA SODEMAN; JOHN DOE SODEMAN, HUSBAND DEFENDANTS - APPELLANTS.
CAROL ANN AGSTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES J. AGSTER, III, DECEASED, AND AS SURVIVING PARENT OF CHARLES J. AGSTER, III; CHARLES J. AGSTER, JR., SURVIVING PARENT OF CHARLES J. AGSTER, III, PLAINTIFFS - APPELLEES,
v.
MARICOPA COUNTY SHERIFF'S OFFICE, A DIVISION OF MARICOPA COUNTY; JOSEPH M. ARPAIO, SHERIFF; BARUCH A. REUSCH; JANE DOE REUSCH, WIFE; LEAH R. COMPTON; JOHN DOE COMPTON, HUSBAND; KRISTINE KEMPER; JAMES E. CROUCH, HUSBAND, AKA JOHN DOE KEMPER; AMANDA S. GARRISON; JOHN DOE GARRISON, HUSBAND; SUSAN E. FISHER; JOHN DOE FISHER, HUSBAND; ERIC NULPH; JANE DOE NULPH, WIFE; KATHERINA BROKSCHMIDT; CHARLES BROKSCHMIDT, HUSBAND, AKA JOHN DOE BROKSCHMIDT; MICHAEL C. WILKINS; KATHLEEN WILKINS, WIFE, AKA JANE DOE WILKINS; LAURA SODEMAN; JOHN DOE SODEMAN, HUSBAND DEFENDANTS, AND BETTY J. LEWIS, DEFENDANT - APPELLANT.
[6] Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding. D.C. No. CV-02-01686-JAT.
[7] NOT FOR PUBLICATION
[8] MEMORANDUM*fn1
[9] Argued and Submitted June 23, 2005*fn2 -- San Francisco, California
[10] Before: NOONAN, THOMAS, and FISHER, Circuit Judges.
[11] We consolidate these two appeals arising from the same set of facts. To obtain our jurisdiction, all the appellants concede for purposes of the appeal the Agsters' statement of facts and contend that they are still entitled to qualified immunity.
[12] Sheriff Arpaio is more than correct in his contention. He has not waived his claim to such immunity, as the claim was ruled on by the district court. The immunity follows here, a fortiori, from absence of any probative evidence of his part in the alleged abuse. The evidence of his braggadocio offered by Agster does not tie him to any action of his deputies pointed to by Agster. Swagger in print is not actionable if acts cannot be traced to it. Arpaio is entitled to be freed from liability for any federal tort.
[13] The deputies present a different picture. As the Agsters present the facts, their actions were a cause of the death of their son Charles. The deputies restrained him to the point of positional asphyxia. Arrested on a misdemeanor charge of trespass, manacled and surrounded by officers in the jail, this small-sized, drug-depleted man was endangering neither the officers nor himself but was uncooperative. His lack of cooperation was no justification for the application of force which was foreseeably dangerous to his life and in fact was fatal. The County's own regulations warned against the danger of "the chair" causing positional asphyxia. The law was clearly established that forbade the deputies to deploy such potentially lethal force. See Drummond v. City of Anaheim, 343 F.3d 1052, 1059-1061 (9th Cir. 2003).
[14] Nurse Betty Lewis does not fare better than the deputies. As the Agsters' account presents the case, she did more than make a mistake in medical judgment or perform her nursing function negligently. Nurse Lewis failed to assess Charles before he was restrained in the fatal chair; she failed to check on his health while he collapsed in the chair; and she failed to respond to the warnings of other observers that he was in acute distress. On these facts, she acted in conscious disregard of the excessive risk that the deputies' treatment of Charles would cause his death. She is not entitled to immunity. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
[15] The judgment is AFFIRMED as to the deputies and Lewis; REVERSED as to Sheriff Arpaio.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[16] *fn1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[17] *fn2 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] Nos. 04-16786 & 04-16844
[3] 144 Fed.Appx. 594, 2005
[4] July 20, 2005
[5] CAROL ANN AGSTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES J. AGSTER, III, DECEASED, AND AS SURVIVING PARENT OF CHARLES J. AGSTER, III; CHARLES J. AGSTER, JR., SURVIVING PARENT OF CHARLES J. AGSTER, III, PLAINTIFFS - APPELLEES,
v.
MARICOPA COUNTY SHERIFF'S OFFICE, A DIVISION OF MARICOPA COUNTY; JOSEPH M. ARPAIO, SHERIFF; BARUCH A. REUSCH; JANE DOE REUSCH, WIFE; LEAH R. COMPTON; JOHN DOE COMPTON, HUSBAND; KRISTINE KEMPER; JAMES E. CROUCH, HUSBAND, AKA JOHN DOE KEMPER; AMANDA S. GARRISON; JOHN DOE GARRISON, HUSBAND; SUSAN E. FISHER; JOHN DOE FISHER, HUSBAND; ERIC NULPH; JANE DOE NULPH, WIFE; KATHERINA BROKSCHMIDT; CHARLES BROKSCHMIDT, HUSBAND, AKA JOHN DOE BROKSCHMIDT; MICHAEL C. WILKINS; KATHLEEN WILKINS, WIFE, AKA JANE DOE WILKINS; LAURA SODEMAN; JOHN DOE SODEMAN, HUSBAND DEFENDANTS - APPELLANTS.
CAROL ANN AGSTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES J. AGSTER, III, DECEASED, AND AS SURVIVING PARENT OF CHARLES J. AGSTER, III; CHARLES J. AGSTER, JR., SURVIVING PARENT OF CHARLES J. AGSTER, III, PLAINTIFFS - APPELLEES,
v.
MARICOPA COUNTY SHERIFF'S OFFICE, A DIVISION OF MARICOPA COUNTY; JOSEPH M. ARPAIO, SHERIFF; BARUCH A. REUSCH; JANE DOE REUSCH, WIFE; LEAH R. COMPTON; JOHN DOE COMPTON, HUSBAND; KRISTINE KEMPER; JAMES E. CROUCH, HUSBAND, AKA JOHN DOE KEMPER; AMANDA S. GARRISON; JOHN DOE GARRISON, HUSBAND; SUSAN E. FISHER; JOHN DOE FISHER, HUSBAND; ERIC NULPH; JANE DOE NULPH, WIFE; KATHERINA BROKSCHMIDT; CHARLES BROKSCHMIDT, HUSBAND, AKA JOHN DOE BROKSCHMIDT; MICHAEL C. WILKINS; KATHLEEN WILKINS, WIFE, AKA JANE DOE WILKINS; LAURA SODEMAN; JOHN DOE SODEMAN, HUSBAND DEFENDANTS, AND BETTY J. LEWIS, DEFENDANT - APPELLANT.
[6] Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding. D.C. No. CV-02-01686-JAT.
[7] NOT FOR PUBLICATION
[8] MEMORANDUM*fn1
[9] Argued and Submitted June 23, 2005*fn2 -- San Francisco, California
[10] Before: NOONAN, THOMAS, and FISHER, Circuit Judges.
[11] We consolidate these two appeals arising from the same set of facts. To obtain our jurisdiction, all the appellants concede for purposes of the appeal the Agsters' statement of facts and contend that they are still entitled to qualified immunity.
[12] Sheriff Arpaio is more than correct in his contention. He has not waived his claim to such immunity, as the claim was ruled on by the district court. The immunity follows here, a fortiori, from absence of any probative evidence of his part in the alleged abuse. The evidence of his braggadocio offered by Agster does not tie him to any action of his deputies pointed to by Agster. Swagger in print is not actionable if acts cannot be traced to it. Arpaio is entitled to be freed from liability for any federal tort.
[13] The deputies present a different picture. As the Agsters present the facts, their actions were a cause of the death of their son Charles. The deputies restrained him to the point of positional asphyxia. Arrested on a misdemeanor charge of trespass, manacled and surrounded by officers in the jail, this small-sized, drug-depleted man was endangering neither the officers nor himself but was uncooperative. His lack of cooperation was no justification for the application of force which was foreseeably dangerous to his life and in fact was fatal. The County's own regulations warned against the danger of "the chair" causing positional asphyxia. The law was clearly established that forbade the deputies to deploy such potentially lethal force. See Drummond v. City of Anaheim, 343 F.3d 1052, 1059-1061 (9th Cir. 2003).
[14] Nurse Betty Lewis does not fare better than the deputies. As the Agsters' account presents the case, she did more than make a mistake in medical judgment or perform her nursing function negligently. Nurse Lewis failed to assess Charles before he was restrained in the fatal chair; she failed to check on his health while he collapsed in the chair; and she failed to respond to the warnings of other observers that he was in acute distress. On these facts, she acted in conscious disregard of the excessive risk that the deputies' treatment of Charles would cause his death. She is not entitled to immunity. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
[15] The judgment is AFFIRMED as to the deputies and Lewis; REVERSED as to Sheriff Arpaio.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[16] *fn1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[17] *fn2 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).