Back in 2018, Phoenix New Times broke the story about how the inmate who was attacked, Shane McGough, filed a federal complaint against Maricopa County Sheriff Paul Penzone, K9 handler Shaun Eversole and other involved deputies, and a U.S. Forest Service Officer over the incident. McGough alleged in the filing that the deputies committed "assault" and "torture," lied in police reports, and violated his civil rights. The Maricopa County Sheriff's Office (MCSO) also opened internal and criminal investigations into the incident, but the probes faced delays. McGough's lawsuit is ongoing and expected to go to trial. However, the Forest Service Officer and one of the deputies have been removed from the case as defendants.
Penzone's office didn't put out a news release about its conclusions in the high-profile case — New Times requested copies of investigative reports under state public records law that were released this month. The documents show that MCSO determined that Eversole acted appropriately. The use of the K9 did not constitute a crime, the criminal investigation states, and given the "totality of circumstances" surrounding McGough's arrest, Eversole's decision to deploy his dog was "within MCSO Policy" and "consistent" with his K9 training.
Similarly, an administrative investigation found that Eversole followed department policy when he ordered his K9 to attack McGough for over three minutes. Other involved officers were cleared of misconduct, with the exception of one deputy, who was found to have created the situation that led to the dog attack by trying to remove handcuffs from McGough while the detainee was agitated.
McGough's attorney, Steven Guy, who had not yet seen the reports until contacted by New Times, slammed the investigations as a biased "whitewash" of the incident that failed to objectively assess the available evidence.
"They just adopt their own party line," Guy said. "It doesn’t have any of the indicia of a independent, unbiased investigation... This is an example why these agencies need to have independent analysis and oversight when it comes to these kinds of things."
The criminal investigation was formally completed on April 3, 2019, while the administrative inquiry was closed on April 22, 2020, according to records and Norma Gutierrez-Deorta, an MCSO spokesperson. The Maricopa County Attorney's Office reviewed the investigation and also "found no criminal conduct," Gutierrez-Deorta wrote in an email. The criminal investigation was sent to prosecutors on February 28, 2019 and "returned" on April 2, 2019. Jennifer Liewer, a spokesperson for the County Attorney's Office, did not provide a response to New Times' questions regarding the agency's rationale for declining to file any criminal charges against Eversole.
The IncidentOn July 15, 2017, after a day of tubing with friends on the Salt River east of Phoenix, they got into an argument with an taxi driver over a vehicle collision. Two sheriff's deputies arrived on the scene.
According to MCSO incident reports, Deputy Michael Finney opened the driver-side door of a truck owned by McGough's friend and saw a handgun in the map pocket of the door. McGough stepped in between Finney and the truck, stating that the deputy had no right to be search the vehicle, deputies claim. Finney then tried to arrest McGough. In response, the reports state, McGough hit deputies before he was tackled. Deputy David Crissinger, broke his leg during the takedown. McGough's attorney contends that the injury was a "freak accident." (Crissinger filed a lawsuit against McGough in June 2018 that is still proceeding in county court.)
McGough was handcuffed and detained in the back of a patrol car and driven to the Lake Patrol substation. Deputies claimed that while in transit, McGough moved his cuffed hands to the front of his body — a move that officers would later cite as a justification for the dog attack. At the facility, McGough was walked to a holding cell while repeatedly asking officers why he was being detained. Eversole, the K9 handler, followed close behind and brought the dog, Shadow, into the cell.
Body camera footage of the incident shows Deputy Alden Jackson trying to unlock McGough's handcuffs. McGough appeared to try and stand up, but was pushed back down while Eversole unsuccessfully tried to order Shadow to bite McGough. Kelly Fleming, a U.S. Forest Service Officer who was in the holding cell, grabbed McGough by the throat and told him to "calm down," prompting McGough to respond, "Bitch, fuck you."
Deputies claimed in reports that McGough was "fighting," trying to use his handcuffs as a weapon, and had kicked officers. McGough's lawsuit characterizes these claims as lies.
McGough told Maricopa County Sheriff's Office Sergeant Joel Campa, who conducted the department's administrative investigation of the incident, that he didn't kick anyone and only "brought his leg up" to block a potential kick from Fleming. The body-camera footage doesn't appear to substantiate the deputies' claims. However, the department's administrative investigation determined that Deputies Jackson and Eversole didn't submit misleading or inaccurate reports, citing the officers' "perception" at the time and semantics.
McGough tossed more insults at Fleming: "Fuck you and your stanky-ass pussy, bitch." He was thrown to the floor of the cell, and that's when Eversole sicced the K9 on him.
The dog bit McGough's buttocks and upper thigh during the lengthy attack. Video shows him screaming in agony, begging officers to "please stop the dog," and agreeing he would comply. Meanwhile, Deputy Jackson tries to get the handcuffs off McGough, and successfully gets one cuff off after 90 seconds. (The key had broken off in the other cuff.) After around three minutes, Eversole finally pulls the dog back.
After fire department personnel used bolt cutters to remove the remaining cuff on McGough, he was transported to Banner Baywood Medical Center in Mesa for treatment before being booked into jail. He suffered severe bite wounds that have turned into scars. Prosecutors would later hit him with a battery of charges, including four counts of assaulting an officer and four counts of aggravated assault. He eventually pled guilty to aggravated assault on an officer and served six months in jail.
We've embedded video of the incident below.
In paperwork documenting the incident, Deputy Eversole claimed that McGough was "actively resisting and fighting" when he went to the ground just before the dog attack. This account seems to ignore the fact that McGough can be heard stating, "I'll get on the ground" on body camera footage when Deputy Jackson orders him to do so moments before the attack. He added that McGough was "kicking" him while the "canine was on the bite," but McGough told an investigator that his leg was "shaking" due to the dog bite. Eversole went on to claim that when it was "safe to do so," he pulled the dog back.
While he declined to be interviewed for the criminal investigation, Eversole told Sergeant Campa, the investigator on the administrative case, that he deployed the K9 to "stop further injuries to law enforcement and to stop the violence," records state.
Eversole's supervisors backed him up after the fact. During a chain-of-command review of the incident that occurred that same year, Maricopa County Sheriff's Office Sergeant Richard Valentine, Lieutenant James McFarland, and Captain George Hawthorne all endorsed Eversole's decision to sic the dog on McGough. Lieutenant McFarland wrote that Eversole's actions were "within policy and reasonable" because McGough had "already displayed violent actions" continued to act aggressively, while Sergeant Valentine cited the fact that McGough had moved his handcuffed hands to the front of his body.
Similarly, K9 handlers interviewed during the internal probe of the incident also deemed Eversole's actions to be by the book. A Maricopa County Sheriff's Office K9 handler told Doug Corbin, a detective with the agency's Professional Standards Bureau that led the criminal investigation of the incident, that when "McGough made the obvious attempt to stand and lunge at the Deputy who was attempting to remove his handcuffs" it was "absolutely within policy for Deputy Eversole" to deploy the K9 due to McGough's "active aggression and non-compliance." Scott Callender, Southwest Director of the National Police Canine Association a lead K9 trainer with the Mesa Police Department, told Corbin, "I would deploy my dog in the exact same fashion, in that exact same circumstance, and I would train my new K9 officers to do that."
Detective Corbin cited the interviews with K9 handlers to support his determination that Eversole's conduct "does not meet the requirements of assault or aggravated assault based on the totality of circumstances."
The Maricopa County Sheriff's Office administrative investigation into the incident, which looked for policy violations committed by deputies, also found that Eversole used the K9 properly.
"The utilization of a canine in this situation from the onset was within MCSO policy, as the canine and the handler's purpose are to provide back up support to deputies. Eversole's deployment and utilization of his canine to handle the perceived active resistance and aggression of McGough towards Jackson was also within the guidelines of MCSO policy and the training Eversole received," the investigation states.
The report acknowledged acknowledge that the "duration" of the bite may "appear excessive." But it also argued that removing the dog "prior to physical compliance and behavioral change by the subject" might have resulted in "additional bites which would cause undue injury."
But Diane J. Humetewa, the U.S. District Court judge assigned to McGough's federal complaint, has stated that the case isn't as cut and dry in law enforcement's favor as Maricopa County Sheriff's Office personnel portray it to be.
"A reasonable jury could conclude that Plaintiff was subdued before Deputy Eversole directed Shadow to bite his upper leg and during the three minutes he was on bite," she wrote in a court order dated October 29, 2020. "It is undisputed that Plaintiff was lying on the ground on his back when Shadow was deployed. Plaintiff was handcuffed, in a jail cell, with one officer standing above him and two more and a police dog standing close by ... a jury could find that no reasonable officer would have believed that he could use a severe amount of force — a three-minute dog bite hold — on such a suspect."
"A jury could find that Plaintiff became and remained compliant at several points before and after Defendant Eversole deployed Shadow," she went on to state. "When he was handcuffed and put in to the car, when he walked into the jail cell, when he told Officer Jackson he would get on the floor, or during the bite, when Plaintiff was on the floor with his hands above his head, repeatedly yelling, 'I comply! I comply!'"
The Maricopa County Sheriff's Office administrative investigation only found one policy violation committed by officers involved in the incident. Deputy Jackson was cited for attempting to remove McGough's handcuffs and creating the situation that led to Eversole siccing a dog on the handcuffed suspect.
"It was not logical to remove handcuffs from a subject who was not cooperative. Jackson had the resources
available to him to keep McGough restrained in a holding cell by himself," the report states. "A reasonable decision would have been to place McGough in the cell with his handcuffs remaining in front of him and allow time to pass to allow him to calm down."
Reasonable Force?During a deposition related to McGough's lawsuit in December 2018, Eversole stated, "The duration of the bite had to do with the fact that the situation was not under control. Shane was still physically resisting commands. He was physically striking me with his feet. So he was not in a position of control that would allow that use of force to be removed."
When questioned during that deposition about whether he thought McGough's alleged "kicking" were reflexes reacting to the painful dog bites, Eversole said his assertion that the kicks were intentional is based on his "belief."
Yet a report on the incident authored by Ken Kataris, a former elected sheriff of Leon County in Florida and law enforcement trainer and consultant, which was entered into the court record by McGough's attorney, blasted Eversole's conduct.
"It is completely obvious to me that McGough posed no threat to anyone, nor was he resisting or attempting to escape," Kataris wrote. "The deployment of the K-9 for a 'Bite and Hold' was without any legitimate law enforcement or penological interest, need, or necessity. The K-9 deployment, in a cell, against a handcuffed prisoner, with several officers present has no legitimate place in the scheme of law enforcement use of procedures — none whatsoever."
Eversole's decision to sic the K9 on McGough was "purely an intentional infliction of a high level of pain," he added.
Seth Stoughton, a former police officer with the Tallahassee Police Department and an associate professor of law at the University of South Carolina who specializes in police use of force, said his take was that Eversole's actions were "excessive."
Deputies "could have just waited" to take the handcuffs off McGough, said Stoughton, who isn't involved in the case. Once a police dog is deployed, people being bit typically react reflexively, he said.
"It is not realistic to expect that someone who is being bitten by a dog to lay passively while officers try to take their handcuffs off. That’s ludicrous," Stoughton said. "To the extent that the officers were using the squirming and the moving once the dog was attached as a further justification for a dog bite, that becomes a self-fulfilling justification. 'We were using pain, he was reacting to the pain, which meant we had to use more pain.' That’s not a reasonable approach in policing."
Stoughton said McGough's behavior may have drawn contempt from the arresting officers. The K9 attack, he said, seemed like a response to McGough "mouthing off."
"'I'm pissed off at what you’re doing,' something like that," Stoughton said. "That’s not a legal justification for a use of force... you don’t get to you use force just because you’re pissed off."
McGough's lawyer, Guy, has his a similar theory: "Maybe it was because of the verbal insult that was hurled at a female officer. Maybe they were trying to retaliate for that. Maybe they were retaliating for Deputy Crissinger’s broken leg."
During a 2018 press conference that addressed the incident, Sheriff Penzone, a Democrat who replaced Republic Sheriff Joe Arpaio in 2016, said that using K9s on handcuffed suspects wasn't an abnormal practice. But Penzone also nodded towards potential consequences for the deputies involved in the incident: “If any details of that case require that I … hold people (deputies) accountable and make changes I will."
In a statement this week, Gutierrez-Deorta, the Maricopa County Sheriff's Office spokesperson, defended the deputies' conduct, as well as the department's internal investigations into the incident. Sheriff Penzone declined to comment on the case and the investigations.
"We conducted a thorough, objective and detailed review to include an evaluation by a third-party subject matter expert. The entire event, from the suspect’s brutal assault on the deputy to the deployment of a K-9 to mitigate the continued threat of violence by the suspect is difficult to observe," she wrote in an email. "Our job is dangerous and often requires considerable force to negate violence by suspects. Our evaluation of this incident is fair and final."
When asked if the department has adopted any new training or protocols after the incident, Gutierrez-Deorta wrote, "There are no new procedures/protocols/training that has been implemented as current policy/procedure/protocol/training is in accordance with best practices and national policing standards."
Larry Moore, a spokesperson for the U.S. Department of Agriculture, which oversees the U.S. Forest Service, did not provide responses to New Times' questions regarding whether Kelly Fleming, the U.S. Forest Service officer who was involved in the incident, was disciplined. But records show that a patrol captain with the U.S. Forest Service told Detective Corbin that the incident was being investigated separately by the U.S. Forest Service's Internal Affairs Department. Moore did not respond to additional questions regarding the outcome of that investigation.
Roughly four years after the incident, Eversole remains employed with the Maricopa County Sheriff's Office, though he is no longer a K9 handler. He was promoted to the rank of sergeant in December 2019.