The immunity that Colorado law broadly affords to government entities does not shield employees of the Rio Blanco County Sheriff’s Office from being sued for the death of a jail detainee, Colorado’s second-highest court ruled on Thursday.

On her third day in the county jail, Catherine Rowell died by suicide. Sheriff’s personnel allegedly failed to assess her suicidality and conduct required checks on her. At the time, Rowell was detained pretrial on allegations she violated a protection order, also known as a restraining order.

After Rowell’s surviving family sued the sheriff’s office, the defendants argued the Colorado Governmental Immunity Act barred the wrongful death claims. The CGIA’s immunity applies in cases where detainees have been convicted of a crime and incarcerated “pursuant to such conviction.” However, there is an exception for those who have yet to be convicted.

A three-judge panel for the Court of Appeals agreed Rowell, who died before being found guilty of her alleged offense, fit within the exception to governmental immunity.

Rowell entered the county jail on Feb. 12, 2016. She had previously pleaded guilty to a harassment charge and was placed on probation, plus she was subject to a protection order that prevented her from contacting her husband. Colorado law requires police to arrest those who violate a protection order when there is probable cause, as in Rowell’s case.

Once at the jail, Rowell was allegedly suicidal but deputies neglected to inquire about her mental state. Personnel put her in the day room, where there was a telephone with an armored cord. On Feb. 15, during a gap when jail deputies should have checked on her, Rowell died by strangulation using the phone cord. 

Initially, Rowell’s husband and children filed a federal lawsuit. They accused the sheriff’s office of deliberate indifference, meaning jail officials knew Rowell faced a substantial risk of harm, yet disregarded it.

The U.S. Court of Appeals for the 10th Circuit ended up dismissing the case, finding the deputies’ failure to follow protocols or to pick up on clues of suicidality did not amount to a constitutional violation. 

Rowell’s family proceeded to file suit in state court, now alleging the sheriff’s office was negligent in causing Rowell’s wrongful death. The complaint also accused Sheriff Anthony Mazzola of failing to properly train his employees to prevent detainee suicides.

The defendants sought to dismiss the lawsuit under the CGIA, arguing Rowell was incarcerated “pursuant” to a conviction, rendering the sheriff’s office immune from liability. In their view, the only reason Rowell was in jail in February 2016 was because she was subject to a protection order related to her previous harassment conviction. If not for that conviction, there could be no arrest.

District Court Judge John F. Neiley disagreed, reasoning the exception to immunity only applied if Rowell was incarcerated for the harassment charge itself, which she was not.

“She was being held on a totally different offense of violating a protection order for which was presumed innocent until a conviction,” he wrote.

The sheriff’s office then turned to the Court of Appeals, which held oral arguments in the case 11 months ago.

“It seems to me,” said Judge Daniel M. Taubman, “you’re assuming that a violation of the protection order involving Ms. Rowell was established as a fact.”

“Well, there was probable cause for an officer to arrest her,” responded attorney Jeffrey L. Driscoll, who represented the defendants.

“If Ms. Rowell had lived, could she not have challenged whether or not there was a basis for taking her into custody?” Taubman continued.

Yes, Driscoll acknowledged. The Rowell family’s attorney, Damon Davis, seized on that point to argue governmental immunity only applies in cases where detainees are incarcerated as a requirement of their conviction – not when they happen to have a conviction and are later jailed for a related charge.

The appellate panel agreed with Davis’ interpretation.

Immunity applies “when the claimant has been convicted of a crime; she is incarcerated; and the incarceration is in accordance with, or to carry out, that conviction,” wrote Judge Elizabeth L. Harris in the May 18 opinion.

Because Rowell was not incarcerated pursuant to any conviction for violating a protection order, the sheriff’s office may be sued after all.

J. Keith Killian, a lawyer for the Rowell family, told Colorado Politics there is an “epidemic” of jail suicides.

“This is a known problem,” Killian said. “The jail, once they confine someone, has an obligation to act in a non-negligent way when it comes to healthcare provision and suicide prevention.”

Driscoll, the lawyer for the sheriff’s defendants, did not respond to an email seeking comment.

The case is Heidel et al. v. Rio Blanco County Sheriff’s Office et al.