For years, officials in Cherokee County fought a lawsuit filed by a man badly beaten in their jail in 2011, but records indicate the case appears to have been settled a few weeks before it was scheduled for trial.
The lawsuit, Bosh v. Cherokee County Governmental Building Authority, has languished in federal court for nearly five years, with county representatives facing court sanctions several times for officials’ failure to testify and for willful destruction of security video that jailers had a legal duty to preserve.
The minutes of a special meeting of the Cherokee County Governmental Building Authority held Monday in Tahlequah indicate the lawsuit was discussed in executive session, and when the executive session ended, the authority approved a resolution for a “settlement agreement.”
Federal court records also indicate that “the parties have negotiated a resolution.”
Daniel Bosh first sued the jail operators in 2011, after one of his vertebrae was crushed and he went two days without medical treatment after being beaten by his jailers in Cherokee County.
Federal court records show a judge ordered officials for the Cherokee County Governmental Building Authority to appear at the federal courthouse in Muskogee on Jan. 20.
A court reporter was at the federal courthouse preparing to take depositions from those officials on Jan. 20 when discussions began to “resolve the matter,” attorneys for Bosh’s estate said.
“I can’t discuss the specific terms, but the family is pleased with the result,” attorney J. Spencer Bryan said.
Bosh was beaten while handcuffed in 2011 by a group of officers at the Cherokee County Detention Center. He had been booked into jail after a traffic stop for not paying court fines.
Bosh was smashed into a counter, then body-slammed onto the floor. Jailers allegedly took him into another room and continued the beating, punching him and pulling his legs out so that he fell backward onto the floor. He wasn’t taken to a hospital for two days, and had suffered a spinal burst fracture.
His life was never the same after that jail beating, family members said. Bosh, who had worked as a wallpaper hanger before the beating, died in 2014 of heart disease.
What attorneys for Bosh learned shortly after his death is that security cameras that captured his beating had additional angles that jailers chose not to preserve or show to investigators.
The footage was destroyed before it could be used as evidence or examined by outside law enforcement officers, and jailers had a legal duty to preserve this evidence, Bosh’s attorneys argued.
Because the additional camera angles weren’t uncovered until years after Bosh initially filed a lawsuit against the county, a federal judge issued sanctions in August 2015 after determining the jailers’ actions counted as “spoliation” of evidence.
U.S. District Judge James Payne indicated that a jury would be given “adverse inference” instruction that details the destruction of the video: The jailers had a duty to preserve the evidence and did not.
At one point, attorneys for the county argued that since Bosh had died, his right to sue had also perished. Payne disagreed and ordered that the lawsuit could proceed.
Payne issued additional sanctions against the defendants during the course of the lawsuit, including a recent incident where officials for the Cherokee County Governmental Building Authority failed to appear at a scheduled deposition.
Records show the court ordered that deposition to occur on Jan. 20, and court filings indicate settlement discussions began soon after.
Records show the settlement agreement may waive thousands of dollars in sanctions issued against the jail authority, but the county could still end up paying thousands of dollars in attorney fees for Bosh’s estate.
With a March 1 trial date nearing, attorneys for both sides had filed a barrage of pre-trial motions, including one filed by attorneys for Bosh seeking to block the testimony of two state troopers who chose to plead the Fifth in earlier proceedings to protect themselves against incrimination.
Oklahoma Highway Patrol Troopers Tommy Mullins and Zac Woods both invoked their right under the Fifth Amendment and declined to provide any testimony during depositions for the lawsuit.
Video captured by the jail cameras provided “evidence that Mullins and Woods had knowledge that CCDC employees intended to assault Bosh in the booking room,” and that they elected to walk away and not intervene, according to the court filing.
Bosh reportedly told one of the jailers that his handcuffs were too tight, and the jailer replied: “Shut the fuck up.”
The black-and-white security camera footage that was not destroyed shows a jailer getting in Bosh’s face after exchanging words, slamming Bosh headfirst into the counter and body-slamming him to the floor before others joined. Reportedly, the beating continued off camera in other rooms.
At least two other camera angles could have shown more about what happened on May 17, 2011.
In a deposition taken two years ago, jail administrator T.J. Girdner testified that he reviewed all of the camera recordings, but said he only made a copy of portions from one camera angle, and presented that footage to investigators.
Girdner said he only saved footage from one security camera angle because “it was the only one that really showed anything from what – for what I was looking at the time. It’s the only view that showed me what I wanted to gather, the information I was wanting to gather.”
Records show Girdner remains the jail administrator at the Cherokee County Detention Center.
He acknowledged in his deposition that he decided to pull the footage because Bosh had been sent to the hospital, and he wanted the district attorney’s office to look at the tape.
The district attorney’s office never filed criminal charges in Bosh’s beating. But investigators were only shown that one camera angle, records show.
The Cherokee County District Attorney’s Office cited Chronister’s account that Bosh was “preparing to spit” and Bosh’s criminal record as reasons to decline charges.
Bosh had prior convictions of domestic abuse and assault in Cherokee County in addition to his traffic tickets.
Attorneys for Bosh’s estate have previously filed motions seeking to recover nearly $100,000 in attorney fees and costs.
In court motions, Bryan and co-counsel Steven Terrill have argued the defendants’ strategy of using a “wasting policy” of insurance ensures the defendants’ attorneys are paid before any award of damages.
“After four years of litigation, defense counsel has consumed an unknown portion of the policy and reduced the amount available to cover the defendants’ liability and expenses,” Terrill wrote in an earlier court filing.
Records do not detail the amount of the proposed settlement approved by the Cherokee County Governmental Building Authority. A joint status report filed in 2011 estimated the “amount in controversy” at $605,568.22. That figure has likely increased substantially after five years of litigation.
In 2010, Custer County commissioners approved a $10 million settlement for a 2007 federal lawsuit over sexual abuse of 14 female inmates by a former sheriff and his deputies. Taxpayers ultimately ended up on the hook in the form of increased property taxes.
In 2011, Delaware County commissioners approved a $13.5 million settlement against the sheriff and jail for female inmates who alleged they were sexually abused while in custody. Residents of Delaware County ended up increasing their own sales tax to pay for the lawsuit settlement.
In both cases, the lawsuits dragged on for years and depleted the county’s insurance policies through spending on legal bills defending the county. Then both cases settled shortly before trial.
In both of those cases and the Bosh lawsuit, county officials were represented by attorneys for the Oklahoma City-based firm of Collins Zorn & Wagner.