For the second time in six months, a federal judge in San Diego has penalized county lawyers for not turning over evidence in a civil rights lawsuit — this time in a case that contends deputies used excessive force against a Black man who was bitten by a sheriff’s dog during a traffic stop.
U.S. District Court Judge John Houston took the rare step of reinstating one of the major claims in the suit, which had been thrown out years ago, alleging the county has a longstanding practice of either ignoring or not thoroughly investigating instances in which deputies use force during an encounter.
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The latest sanction comes in the case of Mickail Myles, then 26, who in September 2014 was stopped by a group of county sheriff’s deputies in Fallbrook. He was struck by Deputy Jeremy Banks while handcuffed, then bitten by Banks’ dog, a Belgian Malinois named Bubo. In 2015, he filed a federal civil rights suit alleging excessive force.
The claim that Houston put back into the case had been thrown out in a previous ruling in 2017 by a different judge, who concluded there was not enough evidence showing a pattern by the county of ignoring use-of-force incidents.
But on July 8, Houston took the rare step of putting the claim back in the case as a way of penalizing the county for not turning over to Myles’ lawyers numerous training and performance records about Bubo.
The records showed Bubo had a history in some trainings of not releasing from a bite when ordered, and in 2015, months after Myles was bitten, bit the gun hand of its then-handler, Deputy Trenton Stroh, during a training exercise.
Stroh needed surgery to repair tendons in his hand and when the surgery did not go well — he ended up suing the physician — Stroh was forced to retire from the department.
Lawyers for Myles did not learn of the Stroh incident or other information about the dog until June, just weeks before a trial in the long-running case was set to begin, according to records in the case.
The lawyers, Joseph Dicks and Linda Workman, only learned of it by happenstance — during a Google search for a picture of the dog, which then led them to another lawsuit filed by a different man who had been mauled by Bubo seven months after Myles was bitten.
In a motion seeking penalties against the county, Dicks said they should have been given the information on Bubo years previously, before the ruling in 2017 that threw out portions of the case. The withheld evidence could have strengthened their arguments in that motion, he argued.
The failure by county lawyers to turn over information echoes a lawsuit alleging excessive force against deputies in the 2015 death of Lucky Phounsy of Lakeside. After a judge said not producing materials in that case was “shocking and disturbing” and issued a special instruction admonishing the county, a jury returned a verdict of $85 million against the county earlier this year.
Myles, a preschool teacher, was driving through a Fallbrook neighborhood with his brother who he had picked up at a roller rink. Neighbors had complained of a group of youths identified as Hispanic who had tried to break into a car and were playing “doorbell ditch,” according to the complaint.
Myles, who is Black, was stopped by three deputies who ordered him to get out of the car with his hands up and to slowly walk back toward them. Myles complied, but the situation became fraught when Banks arrived with Bubo, who was barking furiously.
Myles said he was confused by conflicting commands and the barking of the dog but was able to comply and had his hands restrained behind him. Then, he contended, Banks struck him twice with his fist, and Bubo bit him on his left side.
After the arrest the deputies arranged a lineup with Myles and his brother, but a witness said neither of them were the suspects. However, Banks arrested Myles on a charge of resisting arrest, but the District Attorney’s Office declined to file the case.
Other deputies at the scene testified that Myles did nothing aggressive nor resisted commands before Banks struck him and ordered Bubo to bite, records show.
The county has argued the use of force was appropriate and that they did not intentionally withhold information about the dog. In court filings, county lawyers said the information about Bubo that Dicks cited happened after Myles was bitten and is not relevant to the central issue in the case.
But Judge Houston concluded that records for Bubo had been turned over too late. In addition, he said that the records had gaps in the dog’s training history and its deployments, all of which could be used to raise questions about how the department manages and supervises the animals.
“It is clear the defendants have acted in bad faith,” he said during the July 20 hearing.
Myles’ lawyers also contend that Banks had a history of using excessive force in at least five prior incidents against Hispanic and Black people — including two involving canine biting and one occurrence of using a Taser in an apprehension of juvenile in 2015. The department did not find any of those incidents violated its use-of-force policy and did not further investigate.
The trial was set to begin late this month, but Houston rescheduled it to September at the request of county lawyers, who said they needed time to prepare to defend the reinstated claims.
Bubo was retired in June 2016 after apparently biting another handler during a training exercise, records in the case show. One month later the county transferred ownership of the dog to Banks, records show.
Houston’s ruling penalizing the county for not turning over required information comes after another San Diego federal court judge made a similar ruling in the Lakeside excessive-force and wrongful-death case.
There, U.S. District Judge Marilyn Huff said the county was at fault for not providing to Phounsy’s lawyers training videos that deputies view on the use of maximum restraints, where a person’s hands and feet are bound to restrict their movement.
That case has similarities to Myles’ case. Lawyers for Phounsy found out about the video years after filing suit, after the period of time when the county ought to have provided it, and only learned of it by happenstance when a lawyer in another case informed them about the video.
Huff issued stern instructions to jurors telling them that because of the misconduct, the panel could disbelieve the county’s version of events in some critical portions of the case.
The jury returned a verdict ordering the county to pay Phounsy’s family $85 million. But in a post-trial hearing in June, Huff strongly indicated she would throw out the verdict, which the county lawyer said was excessive, and order a new trial on the issue of how much the county should pay. She has yet to issue a formal order.