OIG Sentinel Report No. 20-04

Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer Chief Deputy INSPECTOR GENERAL Inspector General Independent Prison Oversight SENTINEL CASE OIG № 20–04 AUGUST 19, 2020 The Department Made an Egregious the department the chance to provide us with comments and feedback. In this case, the department provided Error in Judgment and Relied on Poor us with a response to our confidential draft asserting Legal Advice When It Did Not Sustain attorney-client privilege to several statements we made Dishonesty Allegations and Dismiss in the confidential draft report. It also requested that Two Officers in a Use-of-Force Case we not include its response in the public report because the response contained attorney-client privileged information that it wished to remain confidential. These The Office of the Inspector General (OIG) is assertions are within the department’s right under the responsible for, among other things, monitoring law. Although the legal issues surrounding the attorney- the California Department of Corrections and client privilege are somewhat blurred due to our legal Rehabilitation’s (the department) internal investigations authority to provide oversight, we are honoring the and employee disciplinary process. Pursuant to California department’s assertions as they relate to this case. As Penal Code section 6133, the OIG reports semiannually a result, however, our public report leaves out much of on its monitoring of these cases. However, in some cases, the context behind several of the key decisions made where there are compelling reasons, the OIG may issue throughout the case. a separate public report regarding a case; we call these Sentinel Cases. The OIG may issue a Sentinel Case when it $ has determined that the department’s handling of a case was unusually poor and involved serious errors, even after the department had a chance to repair the damage. This On the morning of November 21, 2018, an incarcerated Sentinel Case, No. 20–04, involves an incident captured person, who had been receiving mental health services on video in which two officers used unreasonable force from the department, was occupying an individual on an incarcerated and mentally ill person; afterward, exercise yard at a prison in northern California. As a department attorneys and executives made multiple officer walked past the person, the person spat on the unreasonable and contradictory decisions, not supported officer’s face, arm, and shoulder. A couple of hours later, by the evidence, that ultimately resulted in the officers a sergeant instructed two other officers ( referred to in not receiving an appropriate penalty for their misconduct this report as the first officer and the second officer ) to and in the incarcerated person receiving an unjust escort the incarcerated person from the yard and return rules violation report. We requested permission from the him to his cell. A third officer ordered the person to department to publish the video of the incident along with put on a jumpsuit and a spit mask, the first officer put this Sentinel Case. Without explanation, however, the handcuffs on the person, and the third officer opened the department declined our request, preventing the public individual exercise yard door. The first officer escorted from seeing the disturbing video images of this particular the person by holding the person’s left arm with his right use of force and, thereby, reducing the transparency of hand. The second officer followed behind. From this the department’s actions. point in the incident, the written descriptions provided by the officers diverged considerably from a video Furthermore, as part of our normal, prerelease process recording of the incident. The officers described the of our public reports, we provided the department with person in handcuffs as making a dramatic movement in a confidential draft as an advance copy of this Sentinel an attempt to batter the first officer and escape, while the Case. We did this, in part, to afford the department an video showed the person walking straight forward when opportunity to not only read the draft, but also to allow the officers took him to the ground. Page 1 of 6 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 20–04 SENTINEL CASE AUGUST 19, 2020 An Overview of the Incident: Accounts Derived incarcerated person and the two officers escorting him From Three Sources could exit the exercise yard area. As the first officer, the second officer, and the handcuffed incarcerated The First Officer’s Version of Events person approached the open gate, the first officer appeared to nod to the second officer, and the second In his report, the first officer alleged that as the officer immediately rushed forward from behind to incarcerated person he was escorting and the officers put his hands on the handcuffed person’s back. The exited the gate of the exercise yard area, the incarcerated person himself made no perceptible movements other person, who was in handcuffs, pulled away from him, than continuing to walk forward before the second so the officer put his arms around the person’s body officer moved toward him. As the three men passed and used his body weight to force the person to the through the gate, the officers pushed the person behind ground. The first officer alleged that when he and the a tarp and took him to the ground. Although the tarp incarcerated person landed on the ground, the officer’s partially obstructed the camera’s view, it is clear from right hand was pinned underneath the person’s body. the recording that once they were on the ground, the The first officer alleged that he gave the incarcerated first officer struck the incarcerated person with his person an order to stop resisting and then punched the left fist at least 13 times in rapid succession. The first person’s right temple. The first officer alleged that the officer stopped striking the person, but approximately person then bit a finger on the first officer’s right hand, 16 seconds later, he appeared to strike a final blow with so the officer punched the person in the head with his an elbow or forearm. The third officer then closed the left fist 10 to 12 times, assessing whether further force gate, cutting off any further view of the area. was needed before each subsequent strike, but the pain in his right hand forced him to continue striking the person. The Department Found the Incarcerated Person According to the first officer, the person eventually Guilty of a Serious Rules Violation, but Also stopped resisting. Conducted an Internal Investigation The Second Officer’s Version of Events Following the incident, and based on a report containing the first officer’s version of events, a senior hearing The second officer alleged in his written report that once officer at the prison (a lieutenant) found the incarcerated the first officer and the incarcerated person reached person guilty of battery on a peace officer due to his the threshold of the exercise yard area gate, the person conduct during this use-of-force incident.1 However, resisted and attempted, according to the officer, “to after reviewing the video and the officers’ reports, the push and pull” his body away from the first officer. The warden requested that the Office of Internal Affairs second officer alleged that he quickly rushed through the conduct an investigation. The Office of Internal Affairs gate threshold in an attempt to gain a position on the subsequently investigated allegations that the first officer person’s right side. However, before the second officer and the second officer had used unreasonable force on could do so, the person in custody rapidly turned toward this person and that the third officer failed to report the the first officer and struck the first officer’s body. The unreasonable force he had witnessed. second officer was able to gain control of the person and, using his own body weight, forced him to the ground. In his report, the first officer alleged that he struck the The second officer alleged that, once on the ground, incarcerated person with his fist and that “between each the person — who was still in handcuffs — resisted and strike I assessed, however the pain in my right hand thrashed his body from side to side while attempting to forced me to continue to utilize immediate force.” During kick and “headbutt” both officers. the Office of Internal Affairs’ interview with the first The Video Recording The video recording of the incident offered a different 1. Based on the guilty finding, the incarcerated person received a term in version of the events. The recording showed that the security housing unit, and lost phone and day room privileges. This guilty finding was separate and apart from the rules violation report he the third officer opened the gate so the restrained received for spitting on another officer earlier in the day. Page 2 of 6 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 20–04 SENTINEL CASE AUGUST 19, 2020 The first officer also made a statement during his interview that was contradicted by a supervisor, a sergeant: the first officer denied being present when his statement was typed. That sergeant who had no perceivable reason to lie told the Office of Internal Affairs’ special agent that he sat with the first officer as he typed the officer’s report for him. The sergeant further stated that while typing up the officer’s account, he had recited the officer’s statements back to him. Yet the first officer denied being with the sergeant when the sergeant typed his report, asserting that he only provided the sergeant with a quick synopsis of the incident. The second officer gave the Office of Internal Affairs the same version of events during his interview that he wrote in his report. However, when the Office of Internal Affairs’ special agent showed the video to the second officer and asked him to identify the incarcerated person’s movement that had caused the officer to rush forward, the second officer said he could not see it on the video. The Office of Internal Affairs’ special agent then asked the second officer why he rushed forward; the second officer changed his story and said he “was just trying to get through the door.” The second officer told the special agent that the video from that angle did not show the movement by the person under escort. This assertion contradicted the second officer’s earlier Medical report prepared by the department’s clinical staff statements that the person had become resistant before diagramming the extent of the first officer’s injuries. he rushed up and as they reached the threshold of the gate, which would have been captured on video. When officer, the special agent pointed out that the the Office of Internal Affairs’ special agent asked the occupational report of injury did not document any second officer why he had to move forward quickly when injury to his right hand, and that although someone he did, the second officer said that he could not recall. took close-up photographs immediately after the incident of all injuries the officer sustained, there were The Department Attorneys Provided Legal Advice no photographs taken specifically of the officer’s right Not Supportable by the Facts or the Law, and hand. Nonetheless, a close examination of the available the Department Ultimately Made an Untenable photographs, zooming in on the officer’s right hand Disciplinary Decision wherever possible, revealed no noticeable injury to his hand or fingers; moreover, another departmental medical After reviewing the Office of Internal Affairs’ report of injury from this incident also made no mention investigative report and all supporting materials, of any noticeable injury to his right hand or fingers. including the video, the warden decided to sustain the allegations that the first officer and the second officer The officer did not provide a reasonable explanation used unreasonable force.2 about the lack of physical evidence that concerned having been bitten. Furthermore, the officer himself provided medical documentation that contradicted his claim of 2. The department did not sustain the sole allegation against the third having been bitten. officer. The OIG agreed with this finding. Page 3 of 6 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 20–04 SENTINEL CASE AUGUST 19, 2020 However, the assigned department attorney disagreed the gate. The incarcerated person made no movements and immediately invoked executive review, a process before the second officer rushed forward. The officers by which a stakeholder can elevate a decision in an took the incarcerated person to the ground in a large area employee discipline case to a departmental executive. beyond the gate behind a tarp, which partially obstructed the view of the camera. The executive review process is authorized by departmental policy to resolve significant disagreements We see on the video the first officer on the ground among stakeholders regarding investigative findings, punching the restrained incarcerated person. The first impositions of penalty, or settlement agreements. officer claimed that the incarcerated person bit his right This process is rarely used in disciplinary cases, and hand hard enough to cause pain and that he could not multiple invocations of the process in the same case are get his hand free despite the fact the incarcerated person exceedingly rare. The OIG uses the executive review was wearing a spit mask and the officer was wearing process sparingly and judiciously in order to maintain a glove. The first officer claimed that he continued the integrity of the disciplinary process. For employee to strike the incarcerated person 10 to 12 times until discipline cases we monitored and closed between he was able to remove his hand. However, despite the January and June 2019, the OIG sought executive review pain that was allegedly caused, the first officer had no in only four of 170 cases. For cases we monitored and noticeable injuries to his right hand. The first officer closed between July and December 2019, we sought said he stopped striking the incarcerated person after executive review in only one of the 158 cases. he had freed his hand, yet there was a 16-second gap between the penultimate and final punches thrown by During the executive review process, three department the officer. The second officer changed his story after attorneys — an attorney, an assistant chief counsel, the Office of Internal Affairs showed him the video and a chief deputy general counsel — repeatedly made that clearly showed the incarcerated person did not arguments that were not supported by either the facts or make the movement the second officer had previously the law. We observed these department attorneys give described prior to him rushing up and then could legal advice to the hiring authority that was legally and not offer an explanation as to why he needed to move factually wrong, and demonstrated a profound lack of forward so quickly when he did. A preponderance understanding of a basic legal precept. They were unable of evidence established that the first officer and the to grasp that their advice, while not only wrong, would second officer used unreasonable force and lied in their lead to absurd legal outcomes. Moreover, the department reports and during their interviews with the Office of attorneys’ advice to the hiring authority regarding the Internal Affairs. video evidence was exceedingly poor and lacked even a Five departmental executives ultimately reviewed modicum of common sense. the case, four of whom decided allegations should be We are unable to describe the events in further detail sustained against the officers, while one did not. The since this was advice given to their client, and the warden and the associate director sustained allegations department has asserted the attorney-client privilege. against the officers, and the department attorneys invoked executive review on both of them. The deputy However, we are able to describe what the evidence director concluded that she did not see any misconduct, established. The first officer acknowledged he was despite reviewing the video numerous times and despite aware before going to escort the incarcerated person the substantial amount of evidence described above. The that earlier, that person had spat on another officer. OIG ultimately disagreed with this executive and elevated The first officer nodded in the direction of the second the matter to a director, who found that the officers officer during the escort. The second officer immediately used unnecessary force and lied about the incident; rushed forward from behind to put both hands on the the director determined dismissal was the appropriate incarcerated person and started pushing him through penalty. In response, the department attorneys elevated Page 4 of 6 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG №№ 2200––0044 SSEENNTTIINNEELL CCAASSEE AAUUGGUUSSTT 1199,, 22002200 Time Line of Events Pertaining to the Case, November 2018 to July 2020 the matter again, bringing the case to the undersecretary. The undersecretary ultimately decided that the 2018 officers used unreasonable force when they November 21 took the incarcerated person to the ground, but First and second officers allegedly December 5 he did not sustain the allegations of dishonesty, used unnecessary force on an Associate warden discovered potential incarcerated person and allegedly misconduct, and investigative services and imposed against each officer a 60-working- submitted false reports unit started inquiry day suspension. The OIG did not concur 2019 because the undersecretary did not sustain the allegations that the officers lied in their January 24 reports and in their Office of Internal Affairs’ Hiring authority requested an investigation by the Office of interviews, despite there being a preponderance Internal Affairs of evidence to support the allegations based October 28 on the video evidence, physical evidence, lack The Office of Internal Affairs completed the investigation and referred it to of injuries to the first officer’s right hand, and hiring authority November 19 evolving stories provided by the second officer. Department attorney invoked executive The officers were not truthful or mistaken, review of warden’s decision to sustain November 27 allegations of unreasonable use of force Associate director reviewed case and but they were dishonest in their reports and against first and second officers sustained allegations of unreasonable use of force and dishonesty, and interviews, and should have been dismissed. decided to dismiss first and second officers; department attorney invoked December 3 executive review a second time The incarcerated person is left with an unjust Department notified first and second guilty finding resulting from the first officer officers it intended to dismiss them December 18 Deputy director reviewed case and did falsely accusing him of battery during this not sustain any allegations; the OIG invoked executive review use-of-force incident. Meanwhile, these two officers continue to work as peace officers. The 2020 suspensions took effect on March 31, 2020. On April 8, 2020, the undersecretary decided to January 3 Director reviewed case and sustained modify the suspensions to salary reductions. the allegations against first and second January 21 officers, and decided to impose Undersecretary decided to sustain The OIG did not concur with converting the dismissal; EAPT invoked executive allegation of unreasonable use of discipline into salary reductions, but did not review a third time force, but not dishonesty, and imposed 60-working-day suspensions on first and elevate the matter. second officers February 7 Undersecretary finalized his decision Furthermore, the department failed to March 12 inform the OIG of a critical fact at the time Department served suspensions on first and second officers of the modification: the OIG discovered on March 30/31 Hiring authority referred new allegations May 6, 2020, that the warden had redirected against first officer to the Office of April 8 Internal Affairs; the next day, the first officer to work in a nonpeace-officer After first officer served one week first officer’s suspension of the suspension, undersecretary position in the mail room on March 23, 2020, without pay took effect decided to modify the suspension to a salary reduction and returned and had referred new allegations involving first officer to work in mail room with dishonesty against the first officer to the Office April 22 reduced pay The Office of Internal Affairs of Internal Affairs on March 30, 2020. The first approved an interview of first officer regarding new allegations officer’s suspension without pay took effect on March 31, 2020, but on April 8, 2020, the July 13 Department entered into department voluntarily agreed to place the first settlements with both officers, officer in the mail room and pay him to work in significantly reducing the imposed penalties Page 5 of 6 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG №№ 2200––0044 SSEENNTTIINNEELL CCAASSEE AAUUGGUUSSTT 1199,, 22002200 a nonpeace-officer position pending the outcome of the to stopping the salary reductions as of the date of disciplinary process in his new case. the settlement, the department also provided other considerations to him. The department agreed to remove The department entered into settlements the first officer’s disciplinary action from his official with both officers at a State Personnel Board settlement personnel file six months from the effective date of the conference on July 13, 2020. In entering into the action, potentially preventing others who would review settlements, the department effectively ended the his official personnel file in the future (such as those employees’ disciplinary penalties as of the date of the who would review it for consideration of departmental settlements. In State service, formal discipline is almost promotions or other potential reviewers, such as outside always equated to a monetary penalty. Based on salary law enforcement agencies) from being made aware of the information provided by the department, as a result of specific facts and nature of the first officer’s misconduct. the settlements, the department reduced the monetary In addition, the department also agreed to include a penalty for the first officer’s disciplinary action from clause in the settlement that the first officer was not a loss of pay of approximately $20,515 as a result of admitting fault by entering into the settlement. The OIG the originally imposed 60-working-day suspension disagreed. Moreover, we are not only disappointed in the to a loss of $4,650, and reduced the second officer’s outcome of this case, but also concerned with the lack of monetary penalty from approximately $16,882 for transparency demonstrated by the department because it his originally imposed 60-working-day suspension refused to allow the video of the incident and the details to $3,264. Furthermore, as to the first officer, in addition of the poor legal advice it received to be made public. OIG Comparison of the Department’s Disciplinary Decisions as to the Two Officers and the OIG’s Position Original Penalty Final Settlement Officer 1 60-working-day suspension A seven-day suspension, followed by a 5 percent salary reduction for one month, followed by a 10 percent salary reduction for two months, followed by a 5 percent salary reduction for one month; an agreement to remove the disciplinary actions from his official personnel file after six months; and a clause noting that the officer did not admit any fault $20,515 $4,650 Penalty equivalent to Penalty equivalent to OIG’s Recommendation OIG’s Position Concerning the Settlement Dismissal Did not concur Original Penalty Final Settlement Officer 2 60-working-day suspension A five-day suspension, followed by a 5 percent salary reduction for one month, followed by a 10 percent salary reduction for two months, followed by a 5 percent salary reduction for one month $16,882 $3,264 Penalty equivalent to Penalty equivalent to OIG’s Recommendation OIG’s Position Concerning the Settlement Dismissal Did not concur Page 6 of 6 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov