An $85 million verdict and a sad lack of accountability

A San Diego federal jury in March delivered a recordsetting $85 million verdict against San Diego County after finding the Sheriff ’s Department responsible for the death of Lucky Phounsy, who died in 2015 after deputies hogtied, Tasered and restrained him in Santee.

County lawyers have since filed two motions in federal court to reduce the verdict or overturn it entirely, the Union-Tribune’s Greg Moran reported. The lawyers argue there was insufficient evidence to support the jury’s conclusion, the award was excessive, and there were errors at the trial that worked against the county.

There’s a lot to unpack there, including those supposed “errors,” but this whole case is deeply disheartening.

From the actual encounter that led to Phounsy’s death to the county’s drawn-out response for seven years now, the case has illustrated an aspect of in-custody deaths that is not focused on as much: the ways in which actors outside law enforcement contribute to these kinds of tragedies, prevent accountability and exacerbate the pain for families.

As Moran covered in a deep dive on the case in late March, Phounsy’s fatal encounter with deputies occurred April 13, 2015, when he died after being hogtied, Tasered, hit with batons and restrained by deputies at a relative’s home.

At the time, the county medical examiner said Phounsy’s death was the result of the long struggle with deputies, combined with the effects of ecstasy he had taken several days earlier at a music festival. But lawyers for the family heavily disputed that conclusion and argued, successfully, that the conduct of the deputies caused Phounsy to suffocate.

The family proved this in the eyes of the jury by pointing to actions like the binding of Phounsy’s hands and ankles in maximum restraints, deputies failing to monitor his vital signs, and the way one deputy held down his head for almost the entire ambulance ride, despite Phounsy being restrained.

What happened during the actual interaction speaks to issues with how deputies handled the situation, and one could argue it’s the problem with having law enforcement be the first responders on these types of a cases to begin with. But what happened after Phounsy’s death shows how outside actors can thwart accountability and increase pain for families.

For one, the Citzens’ Law Enforcement Review Board initially found nothing wrong with how law enforcement handled the incident. It even went so far as to say that everything was “lawful, justified and proper” and nothing done was excessive. That conclusion on its face looks bad because it was later revealed at trial that deputies did do something clearly improper because they did not restrain Phounsy using a technique in line with the department’s own training video.

Beyond the review board, county lawyers also shirked a culture of accountability and did so in a much more disturbing way.

The job of county counsel is to support the county and

try and protect it from liability, so it’s no surprise it fought against Phounsy’s family.

What is egregious, though, is it appears it tried to game the system and, after getting caught doing it, opted to use its improper behavior to rationalize tossing out the jury’s verdict.

This case had two trials, the first trial ending in a hung jury late last year and the second, which began in February, ultimately resulting in the massive verdict. It became clear in the second trial that the county had not properly turned over key evidence to opposing counsel, including evidence like the aforementioned training video on how to apply restraints.

County lawyers also failed to provide results of the tests deputies take after watching that video to assess their understanding, and attorneys did not notify opposing counsel until the middle of the second trial that an additional toxicology test of Phounsy’s blood had been administered, showing there were no other drugs in his system aside from minimal amounts of ecstasy.

As a result, Moran reported, U.S. District Court Judge Marilyn Huff found that the county had violated its legal obligation to turn over such materials, and she informed jurors about these violations while also instructing them that they could distrust the county’s version of events related to deputy training and Phounsy’s drug use because of the improper behavior.

Now, among other things, lawyers for the county are contending that those instructions prejudiced their case and the judge mentioned them excessively, thus creating the need to throw out the case or reduce the jury verdict.

I understand there was no way the county was going to quietly accept this jury verdict, and I can see a reasonable argument that the responsible thing for the county to do is at least try and reduce the amount because taxpayers ultimately are left footing the bill.

It’s pretty common, after all, for judges to lower the jury award, and my expectation is one way or another the county will ultimately see that happen.

But it is arrogant and disturbing for the county to ask for a do-over after cheating the system and preventing a grieving family from having its day in court on equal footing.

And all of this just contributes to this feeling that the county on multiple levels places a greater priority on protecting itself than embracing accountability that can better protect everyone.

County lawyers won’t take accountability for how their actions affected the sum in the jury verdict, just as the county seems hellbent on not taking accountability for the role it and its deputies played in causing Phounsy’s death, just as we’ve frequently seen the Sheriff ’s Department try to avoid accountability for other in-custody deaths.

So here’s to hoping that verdict isn’t reduced too much, even if we taxpayers are left with the bill. Maybe a significant hit to the county and taxpayers is the only way we’ll see a culture of greater accountability truly embraced inside and outside the Sheriff ’s Department.