BOISE, Idaho — More than a year after an Ada County jury found that Idaho State Police had retaliated against one of its own officers who refused to cover for a deputy accused of causing a deadly crash, the legal battle grinds on.
The Idaho Supreme Court is now taking up ISP's appeal, which argues that the $1.5 million in damages the jury awarded ISP Det. Brandon Eller was too much.
The award should be capped at $500,000 under Idaho's Whistleblower Act, a lawyer for ISP told the justices Monday, while Eller's attorney argued that the full amount granted by the jury is appropriate.
The suit stems from the complicated aftermath of 2011 car crash involving a Payette County deputy and a New Plymouth man. The deputy, Scott Sloan, was driving at about 115 mph en route to a call when his cruiser slammed into a Jeep driven by Barry Johnson, who was turning into his own driveway when he was hit.
Johnson died at the scene.
After one of Eller's coworkers in the crash reconstruction unit wrote in his report that Sloan had been driving his cruiser unsafely before the collision, higher-ups at Idaho State Police told the investigator to remove any references to the deputy acting recklessly, and insert information about Johnson's blood-alcohol content, which was roughly the legal limit of .08 when he died.
Sloan was ultimately charged with felony manslaughter in Johnson's death. Although one ISP trooper testified that Johnson's intoxication had been a factor in the wreck, both Eller and the other investigator contradicted that, testifying that Sloan had been driving unsafely and that Johnson's BAC did not play a role in the crash.
The testimony enraged ISP command staff, with now-Col. Kedrick Wills expressing dismay that ISP troopers would send a fellow law enforcement office to prison and another higher-up saying Eller and the other investigator would be "lucky to have a job working nights and weekends," according to Eller's attorney.
Later, Idaho State Police leadership sent out a directive that draft crash reports - like the one that concluded Sloan was driving unsafely - should be destroyed rather than saved. Eller objected, again drawing the ire of command staff.
As retaliation, he said, he was passed over for promotion, barred from acting as an instructor in crash reconstruction and received downgraded performance reviews.
Eller sued, and in August 2017, a jury agreed that ISP had retaliated against him in violation of the Whistleblower Act. Idaho State Police appealed the ruling, asking a district court judge to lower the $1.5 million judgment, and the case ultimately ended up before the Idaho Supreme Court.
The attorney for ISP, Andrew Brassey, did not seek to argue that the agency did not retaliate against Eller, or that he was treated fairly. Rather, Brassey maintained that the $1.5 million judgment handed down by jurors was improper, because it incorrectly operated under the belief that there were multiple "occurrences" of bad behavior from Idaho State Police higher-ups in the case.
In fact, Brassey argued, all the harm to Eller should be counted as a chain of events flowing from the single "occurrence" of ISP allegedly targeting him for his testimony - which would limit the award to $500,000 or below per Idaho statute.
"Detective Eller's entire case - the way it was pled, the evidence introduced at trial, the evidence they produced in trial... all went to the motive, the alleged motive of the Idaho State Police, and the alleged retaliatory conduct, which led to a series of events," Brassey said.
As a result, the attorney argued, every slight, bad performance review, or missed promotion - even years apart - came as a consecutive continuation of that "series of events," all stemming from a single motive on the part of ISP.
But Erika Birch, Eller's attorney, urged the justices to reject that argument.
"Those are very separate discrete acts that were made by separate decision makers and caused separate damages," he said. "They may have been part of an overarching retaliatory pattern, but they were very discrete acts separated by a large amount of time."
The Idaho Supreme Court is now considering the case. There is no timeline for them to return with a ruling.