Report questions use of tear gas, pepper spray

A new report condoning the use of tear gas and pepper spray in Santa Clara County jails is raising concerns among criminal justice reform advocates who argue the county's correctional officers shouldn't be using chemical agents on mentally ill inmates.

“This population of folks should not be in a county jail,” Silicon Valley DeBug community organizer Jose Valle said. “We should not be incarcerating mental illness. For the amount of money that's being invested in military chemical weapons such as tear gas or Tasers or anything of the like, that money could be reinvested into actual non-carceral treatment for these folks.”

The report was commissioned earlier this year by the Board of Supervisors who asked the county's office of correction and law enforcement monitoring to assess the use of tear gas and pepper spray in the jail and determine whether other alternatives could be used to gain inmate compliance and if current policies could be improved.

The county uses two different types of chemical agents in the jails: ClearOut, which is essentially tear gas, and OC Spray, or pepper spray. According to the sheriff's office, ClearOut is the preferred method for removing inmates from their cells because it doesn't saturate the cell or inmate and is less likely to cross-contaminate an area.

The report reviewed 17 cases in which tear gas or pepper spray were used. In all but three of them, deputies were responding to requests from medical or mental health personnel to help remove a non-compliant inmate from their cell. That included four cases to administer court-ordered medication, three to move the inmate to the acute psychiatric unit and another three to impose suicide precautions.

The sheriff's office has a set of policies and procedures in place that dictate when and how any chemical agents are deployed in the jail. In the report, the independent monitoring body signed off on the use in all 17 cases, saying that their review found that deputies “exhibited patience and calm demeanor.”

“These are not scenarios where deputies acted quickly and failed to account for the challenges presented by each case or the individuals' mental illnesses,” the report said. “They are planned events, where supervisors are exercising control and directing any use of chemical agents or other force.”

The report offered only slight adjustments to the policy and recommended raising the rank of the officer approving the use, ensuring deputies have adequate personal protective equipment, increasing documentation of events by noting how long an inmate was exposed to the chemical agent and whether they were responsive and prohibiting its use on inmates with respiratory issues.

In an Aug. 29 letter to supervisors, criminal justice reform advocates with the nonprofit Silicon Valley DeBug expressed concerns about the use of chemical agents, as well as the incarceration of individuals with severe mental illnesses. The county is undergoing a multiyear process to assess alternatives to incarceration.

“We have also been around long enough to remember folks with mental health issues like Michael Tyree who was murdered by the Sheriffs,” DeBug organizers wrote in the letter, referring to the 31-yearold mentally ill inmate who was beaten to death in his cell in 2015. “To hear that a military chemical weapon such as ClearOut tear gas is being used almost exclusively on this population is appalling.”

Supervisors are set to discuss the report Sept. 19, pending review from the Community Correction and Law Enforcement Monitoring Committee.

For the two cases that did raise some questions by reviewers, the report said the deputies' actions were consistent with department policy.

The first incident involved an inmate in a mental health unit who brandished a piece of metal and threatened to swallow it. Deputies and mental health personnel unsuccessfully tried to negotiate with the individual. During another check, a deputy saw a laceration on the inmate's arm and the inmate told the deputy he had swallowed the metal. He refused to be handcuffed so after a warning, they used tear gas. When that didn't work, deputies used what's called an OC Phantom Fogger, which creates an aerosol fog of pepper spray.

The report said this incident “raised questions about whether deputies had done all they could do to convince the individual to comply with directives and surrender the metal.”

The second case involved a suicidal inmate who had a respiratory condition. A deputy found a weapon in the inmate's cell and when he attempted to handcuff the inmate, he resisted, ran away to his cell and covered the window with cardboard. He eventually complied with being moved to mental health housing, but began banging his head on the door.

Because of the “perceived medical emergency,” deputies skipped the coolingoff period when trying to remove him from his cell.

While the sheriff's office has policies against using chemical agents on individuals with respiratory issues, deputies received the go-ahead to use tear gas. They eventually restrained him in a chair and searched him for weapons.

The report raised concerns about deputies' use of tear gas on the inmate because of his respiratory condition and the fact that he was restrained in a chair for an extended period of time.

Keith Taylor, a professor at the City University of New York's John Jay College of Criminal Justice and a retired New York Police Department sergeant, told the Mercury News that chemical agents are allowed to be used by police and correctional officers “as long as they don't cause harm from excessive force.”

However, he said there are considerations that should be taken into account, especially when it's used in confined spaces where uninvolved inmates might be affected.

Using tear gas or pepper spray on inmates with mental illnesses also is a cause for concern, he said.

“If someone is exhibiting behavior that will not allow them to be treated the way that inmates normally are and the only way they can gain compliance is through the use of OC Spray, it begs the question is that the appropriate place for them,” Taylor said.