Adele: A Detainee at the Missoula County Detention Facility

An Investigative Report

by:

DISABILITY RIGHTS MONTANA

November 2008 Adele:

A Detainee at the Missoula County Detention Facility

An Investigative Report

November 2008

DISABILITY RIGHTS MONTANA 1022 Chestnut Helena, MT 59601 1-406-449-2344 1-800-245-4743 PREFACE

As the designated protection and advocacy system for people with disabilities in Montana, one ofDisability Rights Montana's (DRM) functions is to advocate for people with disabilities who are held in facilities, which includes detention centers, and to investigate allegations ofabuse and neglect. In July 2006, DRM stafflearned that Adele (called Adele in this Report to protect her identity) a woman with mental illness and developmental delays arrived at Montana State Hospital with seven deep and distinctive bruises on her arms and body. DRM started an investigation to determine how Adele received the bruises. We learned that Adele was brought to St. Patrick Hospital for help with her medication. A dispute took place with the hospital security. Missoula City Police were called and they transported Adele to the Missoula County Detention Center.

This Report details the events that took place between the time Adele was received at the Missoula County Detention Center until she was released less than 18 hours later with a misdemeanor charge and on a $10.00 bond. During the time she was held in custody, Adele was shackled, placed in a restraint chair for two and a halfhours, later placed in a locked cell, shot seven times with a pepperball gun, again placed in a restraint chair where she sat for 44 minutes without the opportunity to be decontaminated. DRM confirmed that the detention center staffwere familiar with Adele and aware she was a person with a mental illness and developmental delays. We learned and confirmed that Adele was crying and confused while in their custody but did not refuse or resist the detention officers' directions. We conclude that the detention center staffviolated their policies, mistreated and abused Adele, lacked appropriate oversight, and is in need of training to respond appropriately to people with mental illness and developmental delays.

The purpose ofthis Report is to document and highlight the events experienced by Adele, a person with a disability in the detention center, and to make recommendations for improvements. We have made every attempt to be accurate in this Report.

SheriffMike McMeekin, who is responsible for the Missoula County Detention Center, was provided a draft copy ofthis Report on October 8, 2008, with the opportunity to respond. He responded on October 13,2008, asking for clarification, which we provided. SheriffMcMeekin asked for two extensions oftime to respond. Both times we agreed. On November 9th we received a letter from the Sheriffstating that "we are preparing a comprehensive response and will independently disseminate it to anyone asking us about the Report. You will be provided with a copy as soon as it is completed and approved by counsel." We have not received SheriffMcMeekin's response. Attached to this Report is all the correspondence between DRM and SheriffMcMeekin. All the documents have been redacted to preserve Adele's privacy. On May 22, 2008, through private counsel, Heather M. Latino, ofPaoli, Latino & Kutzman, P.C., Adele filed lawsuit against SheriffMcMeekin and the officers who mistreated and abused her.

Disability Rights Montana wants to acknowledge Michael Burch, the detention officer whose moral conscience guided him to do the right thing and report the abuse to the authorities. We are outraged that the authorities chose to fire Officer Burch and exonerated the officers who assaulted and abused Adele.

This Report is published in Michael Burch's honor. Michael died ofa heart attack several months after he was fired. May his doing the right thing bring the much needed training and appropriate oversight to the Missoula County Detention Center.

Finally, a special thank you to Alexandra Volkerts, attorney and the investigator in this case, and the DRM staffwho are responsible for the content ofthis RepOli.

Sincerely,

DISABILITY RIGHTS MONTANA

emadette Franks-Ongoy Executive Director Table ofContents

Introduction 1

Summary ofConclusions 2

The Investigation 3

Legal Fralnework 4

1. Constitutional Issues 4

2. Statutory Enactments 4

a. Screening and Diversion ofPersons with Mental Illness from Detention 4

b. Montana Elder and Persons With Disabilities Abuse Prevention Act 5

c. Jail Policies and Procedures 5

d. Missoula County Detention Facility (MCDF) Policies and Procedures 6 1. Use ofForce 6 2. Use ofPepperspray/OC 7 3. Use ofRestraint Chair 7 4. Mistreatment ofand Assault upon Inmates ...... 7

Facts 8

Analysis ...... 11

1. Statutory Issues ...... 11

a. Screening and Diversion ofPersons with Mental Illness from Detention ...... 11 b. Montana Elder and Persons With Disabilities Abuse Prevention Act...... 12

c. Mistreatment ofand Assault upon Irunates 12

2. Jail Policies and Procedures ...... 13

Conclusions ...... 16

Recommendations ...... 16 1. Screening, Booking and Information Sharing 16 2. Medical Clinic ...... 19 3. Training 21 4. Psychiatric and Other Resources 22 5. Citizens Oversight Committee 22 father. No medical staff or mental health INTRODUCTION professionals (MHPs) were called to evaluate her, talk to her, or provide calming medication. Although confused and crying, On July 7, 2006, Montana Advocacy but responding to commands, she was shot Program (MAP), now known as Disability more than six times with a pepperball gun Rights Montana (DRM), received a call that while standing on the floor against a wall in a woman with mental illness and a locked cell. Both she and her cell were developmental delays had arrived at the covered with Oleocapicain powder (OC), Montana State Hospital (MSH) with seven the primary ingredient in pepperball guns deep and distinctive bruises on her arms and and pepperspray. She compliantly exited body. DRM began an investigation which the cell only to be strapped again into a found that on July 1, 2006, the woman restraint chair without the opportunity to (called Adele in this report to protect her decontaminate herself. A nurse briefly identity) was brought to St. Patrick Hospital checked her for injuries, but did not insist emergency room (ER) for help with her she be decontaminated nor asked critical medications. Although known to the medical questions. She was released from hospital as a woman with mental illness and restraint after forty-four minutes. At some developmental delays, she was refused unknown time, she was taken to the showers services at the ER. She ended up in a in another part ofthe Jail to decontaminate. dispute with hospital security staff who called the Missoula Police Department to Adele was released from Jail July 2, 2006, remove her. The police took her to the after paying a nominal fine for disorderly Missoula County Detention Facility (Jail). conduct. Fearful, confused, and highly Although she was no longer obviously emotional, as well as in considerable pain, agitated when she arrived, she was met by Adele went to the Community Hospital overwhelming force, patted down without emergency room the next day seeking help. incident, and immediately put into a She was evaluated and released with pain restraint chair for more than two and a half medication. Several days later she returned hours. The Jail perfonned no psychiatric or to the St. Patrick Hospital emergency room, mental health evaluation for her and no where she was recognized as medical staff was called to evaluate her decompensating from mental illness, before, while, or after she was in restraint. evaluated by a MHP, and taken to MSH on At least one medical staffwas on duty at the emergency detention, pending commitment. time. That is when Disability Rights Montana received a call reporting Adele's injuries. After two and a half hours, Adele was released from restraint after she fell asleep Montana has several systems that should in the chair. She was then put in a cell. She have helped Adele. Those systems identify awoke around 2:30 a.m., frightened, people with mental illness, provide humane confused, and calling or screaming for her treatment at the hospital and, divert people

Adele Report - November 2008 with mental illness from incarceration. All to the Jail in violation of Montana systems failed Adele. This incident raises Code Annotated § 53-21-138. 1 difficult issues regarding the community's response to vulnerable people in a mental 2. The Jail violated both the substantive health crisis, the use of jails as a default requirements and reporting holding system when community crisis responsibilities ofthe Montana Elder services fail to respond appropriately, and and Persons with Developmental the inadequate training, standards, Disabilities Abuse Prevention Act, information access, and safeguards in the Montana Code Annotated § 53-2-801 Jail to appropriately, safely and humanely et seq. respond to people with mental illness and developmental disabilities. It also points 3. The Jail violated many of its own out the deficiencies in the statutorily policies, including 7.24, which limits mandated procedures for evaluation and and defines the circumstances under diversion ofpeople with mental illness who which force, restraint, and non-lethal are charged with minor crimes. weapons, including the pepperball gun, may be used, and mandates This report is bifurcated: This report will safeguards and follow-up procedures; address what happened at the Jail, the 12.02, which prohibits personal second report will address what happened at abuse, punishment, and 81. Patrick Hospital Emergency Room. discrimination based on disability; and 11.54 which provides a protocol for the treatment ofinmates at risk for SUMMARY OF CONCLUSIONS suicide.

4. The Jail violated Montana Code The decisions to release Adele from the 81. Annotated § 45-5-204, which defines Patrick Hospital ER without evaluation or "assault on an inmate" as a crime; and treatment by a doctor and to send her to Jail § 7-32-2248, a Montana statute where she was detained without screening her for mental illness led to a cascade of events which violated Adele's rights under Montana's Constitution, statutes, and IThe statute, captioned "Diversion of multiple jail policies and procedures. certain persons suffering from mental disorders from detention center" mandates that all inmates be screened for mental illness to 1. The Jail failed to screen Adele for identify those persons accused ofminor mental illness when she was brought misdemeanor offenses, including disorderly conduct, who appear to be suffering from mental disorders and who may require commitment. The Jail intake and booking procedures include no effective screening tools to determine whether a person may be suffering from a mental illness.

2 Adele Report - November 2008 prohibiting the mistreatment of process of investigation, the Jail did make inmates at detention centers.2 some positive steps which may serve to mitigate some of the problems highlighted 5. The Jail's training program appears herein.4 inadequate in respect of teaching officers to screen, identify, recognize, and treat detainees with mental illness access to detention officers who participated in the pepperball shooting. and/or developmental disabilities, including appropriate use of force The Sheriffs office initially obstructed and restraint, and their reporting access to irunate witnesses ofthe shooting requirements in instances of alleged and removed the investigator from the abuse and neglect. facility.

• The medical clinic contracted to provide medical services to the Jail has failed to THE INVESTIGATION provide access to the nurse who examined Adele immediately after the pepperball shooting. This investigation was complex, and was hindered and slowed by certain The Sheriffallegedly ordered his staffand 3 medical staffnot to speak with the complicating factors. However, in the investigator except with his permission.

• The Sheriffinitially supported and was 2The list ofprohibited actions also actively involved with developing a provides for criminal penalties. screening and diversion program for people with mental illness in conjunction 3Complicating Factors: this investigation with 4th Judicial District Court and other was complicated by a number offactors. stakeholders as required by statute. Currently the Sheriffs representatives • The Sheriffs office consistently delayed have withdrawn their participation in and or refused to provide information for over support ofthe Diversion Committee. eighteen months to the extent that at the time ofthis report essential evidence 4Mitigating Factors. The investigation including video tapes ofAdele's arrival at and its results have been mitigated by: the Jail, audio tapes confirming when she was actually taken to the shower, and other • The Sheriffsent three detention officers essential documentary evidence, including and up to 5-6 beat officers to Crisis the FBI investigative report, has never Intervention Training (CIT) to train been provided. officers how to work with people with mental illness. CIT training was held in • The Sheriffs office appears to have Helena in April 2007. provided erroneous information when it provided a list ofinmates in the cell pod at • The Sheriffhas become occasionally the time ofthe pepperball shooting. involved with and is a member ofthe Board ofDirectors for the Western Service • The Sheriffs office obstructed DRM Area Authority which is made up of

Adele Report - November 2008 3 dignity and personal integrity. 7 This right to LEGAL FRAMEWORK be treated humanely, with dignity and respect has been consistently recognized by the Montana Supreme Court.8 1. Constitutional Issues 2. Statutory Enactments Both the U.S. and Montana Constitutions a. Screening and Diversion of require that an inmate receive adequate Persons with Mental Illness medical and mental health treatment while from Detention in custody. To deny adequate medical care while a person is in custody and unable to It is the policy ofthis State that people with obtain their own medical care constitutes mental illness be identified and diverted cruel and unusual punishment.s away from jails and back into the mental health treatment system, when appropriate. Respect for the dignity ofeach individual is Montana Code Annotated § 53-21-120 and a fundamental right protected by Article II, 124 prohibit holding a person facing Section 4 of the Montana Constitution cOlmnitment proceedings in jail while they which provides that "the dignity of the await their hearings.9 Since 2003,jails have human being is inviolable."6 Montanans been mandated to screen all inmates to with mental illness are entitled to the same identify people with mental disorders civil rights as are other citizens ofMontana. accused of minor misdemeanors to In addition, people with mental illness have 0 determine iftheymay require commitment. 1 a statutory right to treatment suited to their "Minor misdemeanor offense" means non­ needs that is administered skillfully and serious misdemeanors such as criminal humanely with full respect for the person's trespass to property, loitering, disorderly conduct, and disturbing the peace. It covers a broad range ofminor crimes which entail consumers and other stakeholders working to develop an integrated mental health services system in

Western Montana. 7Mont. Code Ann. § 53-21-101(1).

8See In the Matter ofthe Mental Health of 5u.S. Constitution, Article 8; see Estelle v. KGF, 2001 MT 140, ~ 45,306 Mont. 1, ~ 45, 29 P.3d Gamble, 429 U.S. 97 (1976) (denial of adequate 485, ~ 45 (citing Armstrong in the context ofright to medical treatment constitutes cruel and unusual dignity while under civil legal proceedings). punishment); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) (the right to adequate medical care includes the 9Forty percent ofjails acknowledge that in right to adequate mental healthcare); Morelli v. Lake spite ofthe law, they use minor or no charges to hold County, 255 Mont. 23 (1992) (county has a duty to people with mental illness until they can release them give medical aid and treat prisoners humanely). or obtain community mental health treatment. MAP Jail Survey July 2000, published by Montana 6Montana Constitution, Article II, Section 4; Advocacy Program, page 24. Armstrong v. State, 1999 MT 261, ~ 72, 296 Mont. 361, ~ 72,989 P.2d 364, ~ 72. laMont. Code Ann. § 53-21-13 8.

4 Adele Report - November 2008 no significant injury to other people or codes, there are no statewide standard property. If a person does require policies and procedures applicable tojails or commitment, she or he may not be held in detention facilities.]4 Currently, each jail pending evaluation and hearing.]] detention center administrator is allowed discretion to develop and adopt his or her b. Montana Elder and Persons own policies and procedures regarding the With Disabilities Abuse operation of local jails or detention Prevention Act facilities, at least with regard to city/county inmates subject only to constitutional, As a group, people with developmental statutory, and common-Iaw.]5 Missoula disabilities are more vulnerable to abuse, city-county detainees and Jail staff are neglect, and exploitation and require subject to the policies and procedures additional protections. Consequently, adopted by the Jail facility administrators, statutes impose an obligation on under the supervision and oversight of the professionals and public employees, County Board ofCommissioners. ]6 The Jail including law enforcement officers, to has chosen to adopt some MSPOA and watch for and report incidences of abuse, American Correctional Association (ACA) neglect, or exploitation of people with policies but created many ofits own. Many developmental disabilities to the jail policies have remained in draft form for Department ofHealth and Human Services, years, and some were adopted in final fonn Child Protective Services or Adult after this incident or during the Protective Services, as appropriate.]2 investigation.

c. Jail Policies and Procedures

To distinguish between assault on an inmate or inmate endangerment and necessary use of force, the Montana Sheriff and Police Officers' Association (MSPOA) has developed and recommended policies to clarify this grey area. However, it is entirely 14Mont. Code Ann. § 7-32-2222. Detention voluntary whether a county adopts in part or center shall comply with state and local fire codes for 13 correctional occupancy and with sanitation, safety and in whole the MSPOA policies. Other than health codes. sanitation, safety, and fire and building 15Mont. Code Ann. § 7-32-2234. When a detention facility accepts State or Federal prisoners, it l1Mont. Code Ann. § 53-21-120, 124. agrees to abide by the policies and procedures set forth by the State or Federal contract for the care and 12Mont. Code Ann. § 52-3-801, et seq. custody ofsuch prisoners. State policies are only mandatory for state prisoners while Federal policies 13See Mont. Code Ann. § 7-32-2201,2204, are only mandatory for Federal prisoners. 2234. County commissioners have jurisdiction and power ... to cause a detention center to be ... 16Pursuant to interview with Missoula County operated. Sheriff, September 19, 2006.

Adele Report - November 2008 5 d. Missoula County Detention include hands on or handcuff restraints as Facility (MCDF) Policies and well as the use ofa restraint chair. The use Procedures of pepperspray and batons is restricted to the more severe incidents, requiring either A number ofcurrent policies and procedures an immediate response or a planned adopted by the Sheriff or his predecessors response under supervision of the shift provide some guidance on the use offorce, supervisor or trained tactical team. Finally, pepperspray or powder (OC) and restraint in extreme situations, deadly force may be chairs. These policies expressly recognize used ifthere are no other means ofresolving the civil rights of inmates to humane the imminently dangerous situation. treatment and to be free from discrimination based on disability. An employee is To assist officers in the decision to use required to abide by the Jail's policies and increasing levels of force, the policy procedures or face sanctions up to and mandates four factors which must be including dismissal. MCDF Policy 3.10. considered to detennine whether the inmate's actions constitute a threat of 1. Use ofForce imminent danger ofdeath or serious bodily InJury: Policy 7.24 provides guidance regarding if and when it is appropriate to use force 1) The ability or apparent ability against inmates. The policy identifies a use ofthe inmate to cause serious of force continuum to clarify increasingly injury (disparity in size, age, forceful steps to be worked through in a strength, numbers and level of roughly sequential manner when an officer aggressiveness are important faces a challenging situation. The policy enumerated factors); further provides that force will only be used to the degree necessary to prevent serious 2) Opportunity to cause senous bodily injury or death to staff or inmates. bodily injury or death; The policy later clarifies that an escalating use of force may only occur when a person 3) Imminent jeopardy (i.e. is it presents an imminent danger of serious reasonable to believe that right bodily harm or death to staffor third parties. now the person's acts could cause serious injury or death); The use offorce continuum starts with low­ and, level passive intervention, such as talking to the person, video taping the person and 4) Has the officer exhausted all bringing more officers to the scene in a reasonable options. show of force. If these do not work, the officer may move to active measures, The policy further clarifies that use offorce, including control holds, self-defense security equipment, and restraint equipment techniques, and restraint which would are intended only as control measures and

6 Adele Report - November 2008 are to be used only when absolutely resort." It is "not to be used to punish, necessary. Only the minimum amount of harass, coerce, or abuse inmates." During force necessary may be used. Force cannot restraint, the inmate must be closely be used for punishment, harassment, monitored and removed from the restraint coercion, or abuse. chair as soon as possible. At a minimum, inmates must be checked every 10 minutes 2. Use ofPepperspray/OC and the checks must be logged and an incident report completed. Once removed Policy 7.24 provides that OC, the active from the chair, "the inmate must be seen by ingredient in the pepperball gun medical staff." (Emphasis added.) State ammunition, "should only be used in an policy prohibits the use of restraint chairs amount necessary to gain control and cause for State prisoners. an inmate to cease [his or her] aggression." OC is defined as an inflammatory agent 4. Mistreatment of and Assault derived from habanero pepper plants that upon Inmates effects the mucous membranes and upper respiratory system. "[I]t is the policy ofthe Detention officers also have specific Jail that when use of force has been used, obligations to perform their duties in a and particularly when OC has been used, the manner which does not mistreat prisoners. irunate will be examined by medical staff Under Montana Code Annotated § 45-5­ and receive any necessary treatment as soon 204, it is a felony for detention staff as possible ...." Necessary treatment responsible for the care or custody of specifically includes the opportunity to prisoners to purposely or knowingly assault shower as soon as possible. or otherwise injure a prisoner; intimidate, threaten, endanger or withhold reasonable 3. Use ofRestraint Chair necessities from a prisoner for any purpose, or violate the civil rights ofthe prisoner. An Policy 7.24. Restraint chairs are molded of officer committing such an offense may be fibreglass and use "soft wrist restraints fined and must be removed from office or made of webbed nylon and soft ankle employment. "Knowingly" means that the restraints of the same material" to hold a officer was aware ofhis own conduct, while person in the chair. The policy recognizes "purposely" means that the officer acted that use the restraint chair may be necessary deliberately to achieve the result or to prevent security threats, escape, assault, conduct.]7 suicide, to protect staff or inmates, for mental health reasons, or for certain A detention center administrator or staff necessary circumstances within the member commits the offense of inmate discretion of the Sheriff or designee. Like endangerment if she or he knowingly uses all uses offorce, it should be employed only corporal punishment against an inmate or to the degree necessary to control the inmate and further, it should "only be used as a last 17Mont. Code Ann. § 45 -2-101 (35), (65).

Adele Report - November 2008 7 uses physical force against an inmate four times before this incident. Transport to without legal justification. I8 Legal and from MSH for emergency detention, justifications for the use of force by returns for judicial hearings and final detention officers is authorized in very commitment to MHS is provided by the limited circumstances for necessary self­ Missoula County Sheriffs Department. In defense, control of inmates, for the addition, Adele had been detained at the Jail protection ofanother person from imminent on at least four previous occasions and has physical attack or to prevent a riot or escape. had numerous contacts with the city police. At least two Jail employees or former employees noted that they were well aware FACTS Adele has limited cognitive ability and mental illness.

th On the weekend ofJuly 4 , Adele had either Adele, a young adult, has lived in Missoula failed to take her medications as prescribed for several years and is well known to the or they were no longer working. Her case various mental health emergency services as manager had been trying to locate Adele for well as to the police and Sheriffs two days. On Saturday, July 1st, Adele departments. She had been committed to called her foster sister who brought her to MSH two times and to a community the ER around 7:20 p.m. She became inpatient hospital at least twice before this agitated, demanded medication and threw incident. Personable and sunny natured other medication on the floor. Failing to most of the time, Adele has multiple consider her mental health issues, the ER disabilities including psychotic disorder, nurse determined that Adele had no major depression, mild mental retardation, "medical" issues, and called security fetal alcohol syndrome, and PTSD from officers, who eventually wrestled Adele to childhood trauma. Her medical conditions the floor. No one else was injured, but include asthma. She has experienced many Adele suffered a bloody nose. The losses in her life, including both her natural Missoula City Police were called to arrest parents, her home, her language, and more her on misdemeanor disorderly conduct recently, her foster father. She receives charges. 9-1-1 dispatch alerted the Jail that supported living and employment services the city police were bringing in a combative as well as case management services for her woman but apparently gave no other disabilities. infonnation.

Even with community supports, Adele had According to video evidence, most of the made 28 visits to the ER over the five years team on duty that night, one of whom was prior to this incident for treatment of her carrying a tazer, met a crying Adele in the mental illness and had been hospitalized Jail garage or "sally port." Six large officers accompanied Adele into the remand area to be frisked with her hands cuffed behind her 18Mont. Code Ann. § 7-32-2248.

8 Adele Report - November 2008 back, although only two officers actually situation, he armed himself with a touched her to lead her into the remand area. pepperball gun and ammunition. He failed She was crying but not otherwise obviously to call for medical assistance to calm her or struggling. Two officers shoved her face­ mental health support to address her alleged first into a long pad on the wall of the suicidality. Contrary to policy, no videotape remand area, one officer clamping his hand was made of the incident from inside her to the back of her head while the other cell which would have provided a more patted her down. complete recording of Adele's alleged suicide threats. The SDO stated the As soon as she was released from the pat mounted VCR cell unit was not working. down, non-resisting but crying, she was shoved backwards into a restraint chair by By official report, Adele apparently said, "I two officers, taking her full weight on her know how to kill myself," and climbed on a handcuffed arms, while the other officers concrete desk 30 inches high. Other stood around watching. (The official witnesses state she woke crying, screaming written report states that she became so and calling for her "daddy" but that they combative, all the officers present were heard no threats ofsuicide. A female officer needed to gain control of her, which is on duty allegedly talked her offthe bunk or contradicted by video evidence.) Adele, a desk before the SDO arrived. There is no city/county detainee, could be put in a independent evidence corroborating that she restraint chair, but only in conformance with was actually threatening suicide. Jail Policy 7.24, and only as a last resort. The video evidence provided failed to The only video tape ofthe shooting incident justify the use ofthe restraint chair was two or three minutes recorded by a hand-held video camera through the glass in There is no evidence that Adele was the cell door. The official report alleges she evaluated medically while in the restraint was threatening to throw herself head first chair for two and a half hours or after offthe desk onto the concrete floor, creating release as required by policy. One female a dangerous situation which could only be officer apparently observed Adele and deterred by shooting Adele with OC. Adele agreed she was compliant and could be was yelling and crying when the video released, but noted that only the senior begins. Adele was standing directly across detention officer (SDO) could release her. from the cell door, next to or on the I8-inch Finally, a sleepy Adele was released from high bunk. She is not standing on a desk. the chair and taken to a cell where she slept There is no evidence of threats to herself. for several hours. Nor is there any evidence the SDO attempted any other less forceful Around 2:30 a.m., Adele woke and began interventions, to talk to her, try to calm her screaming and allegedly threatening suicide. or call a mental health professional ornurse. The SDO heard the report over the intercom The SDO stated he did not try any ofthese in his office. Before evaluating the lesser interventions.

Adele Report - November 2008 9 The SDO ordered Adele to tum around and Adele had mental retardation. Adele was kneel. Her response was unintelligible released from the restraint chair and taken to except for "No, ... come on." In a raised shower more than 45 minutes later, and voice he ordered, "On the bunk now," returned to her cell. although she was standing on or in front of the bunk at the time. She moved away from The next shift finally completed booking the bunk to lean, crying, on the wall, and Adele into the Jail more than 12 hours after had now eliminated any possible danger to she was atTested, and had her examined by herself. He then yelled, "On the bunk or the medical clinic. The nurse practitioner force will be used against you." She documented that Adele received services continued crying against the wall and he from a community provider ofmental health fired at least six shots into her body. She and developmental disability services. She cowered, crying harder. He screamed, also noted that "a friend had called to say "Face down on the bunk!" and fired at least Adele was offher medications." Her notes three or more shots into the cell. Adele indicate Adele had two noticeable bruises cried that it hurt, moved to the bunk and lay and complained ofback pain, had a mental down crying, coughing, and holding her health diagnosis, was prescribed body. He ordered her to lie on her stomach, psychotropic medications, and had a arms at her side. Crying and squealing, she developmental disability. complied. The officers entered her cell, cuffed her hands behind her back and pulled Adele's case manager posted $10.00 bail her up, coughing, and she said she couldn't and took Adele home. She had been breathe. without medications for at least four days, and was confused, disoriented, and Adele, compliant and non-resistant, was traumatized. She sought help on July 3rd at immediately placed in a restraint chair. No the Community Medical Center ER for pain effort was made to decontaminate her, wash caused by the shooting and then again on her face or bare skin. She was not asked July 4th at St. Patrick Hospital ER for pain about asthma or high blood pressure, either and confusion. The St. Patrick Hospital ER of which can cause death with the use of doctor gave her a 6-day supply of OC. The facility nurse was called to check psychotropic medications, but stated she did Adele at approximately 3:00 a.m. while she not need commitment. She was brought by th was in the restraint chair. The nurse said the city police to the ER early on July 6 • she was unable to obtain vital signs due to When she became loud and disruptive, she the restraint chair and Adele's alleged finally received a mental health evaluation aggressive behavior. She told Adele "to try and was sent on emergency detention to and relax and rest," but made no effort to Montana State Hospital. decontaminate her, and took no medical history although she noted two bruises on The Jail has three resources available for an Adele's left side and abdomen. According inmate exhibiting a mental health crisis. A to witnesses, the nurse stated it was obvious psychologist provides court ordered mental

10 Adele Report - November 2008 l9 health evaluations; a state-employed social jail while they await their hearings , and worker is also available as a resource for require that persons with mental illness be non-state inmates during nonnal working detained in the least restrictive possible hours; and a licensed clinical professional environment. Since 2003, jails have been counselor is on-call for after-hours mandated to screen all inmates to identify emergenCIes. people with mental disorders accused of minor misdemeanors to determine if they Adele was originally brought in during the may require commitment,20 and to divert medical clinic registered nurses' nonnal them into mental health treatment facilities. shift. The nurses are available to go to "Minor misdemeanor offense" means non­ booking if asked, and may offer Ativan to serious misdemeanors such as criminal an inmate to calm down. Ifstaffdetennines trespass to property, loitering, disorderly it is not safe to open a cell door, they may conduct and disturbing the peace. It covers also call a nurse to offer the inmate Ativan. a broad range ofminor crimes which entail Nurses are available on-call to see any no significant injury to other people or person agitated enough to restrain. property. If a person does require According to clinic personnel, during commitment, she or he may not be held in nonnal working hours the Jail staff jail pending evaluation and hearing.21 generally call the medical staff "right away" for someone "acting out." None of these The facts show that Adele was already resources were called to assist with Adele. broadly known to the medical, mental health and law enforcement communities of Missoula to be an individual with mental ANALYSIS illness - which in the broadest tenns means that the nurse at the St. Patrick ER, very probably the security officers at the hospital, the arresting Missoula Police Department 1. Statutory Violations officers and the staff on duty at the Jail knew that her behavior was the result of a. Screening and Diversion of mental illness and that she belonged in a Persons with Mental Illness hospital bed. Legally, as medical and law from Detention enforcement professionals, they had an

The provisions ofMontana Code Annotated §§ 53-21-120, 124 and 138, which reflect 19Forty percent ofjails acknowledge that in the policy of this state that people with spite ofthe law, they use minor or no charges to hold mental illness be identified and diverted people with mental illness until they can release them or obtain community mental health treatment. DRM away from jails and back into the mental Jail Survey July 2000, published by Montana health treatment system, were clearly not Advocacy Program, page 24. followed. These statutes prohibit holding a 20 t. Code Ann. § 53-2]-138. person facing commitment proceedings in Mon 21Mont. Code Ann. § 53-2]-]20, ]24.

Adele Report - November 2008 11 affinnative duty to get her into that hospital shooting, the supervising officer's failure to bed. Instead, this frightened, disoriented, allow her to be decontaminated as soon as and very vulnerable woman was subjected possible and her unnecessary restraint after to hours of abusive and illegal behavior she was compliant. Numerous other which exacerbated her already fragile employees, including the Jail commander condition. and the Sheriff, were aware ofthe incident and viewed the video tape ofthe shooting. It is DRM's view that there is no excuse for Nonetheless, only one officer reported it to what happened to Adele the night ofJuly 1, the press, to the FBI, and to the ACLU. No 2006. The medical and law enforcement officer DRM spoke with was aware ofhis or professionals not only should have known her statutory obligation to report abuse. but undoubtedly did know that they were Most unfortunate, the officer who publically mistreating a sick and vulnerable woman, reported the incident was fired for making and in spite of that knowledge and with public "confidential infonnation" because callous indifference to their professional he did not know to whom he should report, duties, went right ahead and did the wrong although he believed that her treatment was thing. abuse. The Sheriffs department failed to adequately train its staff and lacks b. Montana Elder and Persons procedures in the requirements of law With Disabilities Abuse enforcement officers to report incidents of Prevention Act abuse or neglect of people with developmental disabilities. The Jail violated MontanaReporting Statute Montana Elder and Persons with c. Mistreatment ofand Assault Developmental Disabilities Abuse upon Inmates Prevention Act. Mont. Code Ann. § 53-2­ 801, et seq. The legislature has recognized Jail inmates are vulnerable to mistreatment that there is a need for law enforcement and abuse by guards. For that reason, the agencies, among others, to prevent "abuse, Montana legislature has both defined what sexual abuse, neglect and exploitation of constitutes endangerment of prisoners, and Montana's ... persons with developmental prohibited the practice.22 disabilities through the identification, reporting and prosecution of acts of abuse, neglect and exploitation." Abuse means the 22Inmate endangerment -- penalty. (1) A infliction ofphysical or mental injury. Law detention center administrator or staffmember enforcement officers are specifically listed commits the offense of inmate endangerment ifthe administrator or staff member knowingly... as required to report incidents of abuse to (b) uses corporal punishment against an inmate; or the DPHHS, child or adult protective (c) uses physical force against an inmate, except as services, as appropriate. At least seven necessary for: (i) self-defense; employees directly participated in or (ii) control of inmates; witnessed Adele's unjustified pepperball (iii) protection of another person from imminent physical attack; or

12 Adele Report - November 2008 If the common run of inmates in detention It is a fair interpretation of the videotapes centers are vulnerable to endangerment, by and the records of the Jail that the SDO virtue of being outnumbered, unanned and knowingly armed himself with a weapon frequently restrained, then an inmate who is with the intention ofcommitting an assault a person with mental illness or a on and otherwise injuring Adele, and in fact developmental disability has increased accomplished that purpose. It is also a vulnerability. Adele, frightened, short, reasonable inference that by keeping Adele disoriented, shackled, and outnumbered by confined in a restraint chair while she was male officers with weapons, was helpless coated with OC powder for three quarters of against what the few videotapes the Jail has an hour, they knowingly and purposely released show as overwhelming aggressive withheld reasonable necessities from Adele behavior. It is perfectly clear that the Jail for no lawful reason. It is clear that the staff used the pepper ball gun as well as actions of the officers and their leadership wrist and ankle shackles and the restraint purposely and knowingly violated Adele's chair unnecessarily. It is also clear that they civil rights. used physical force against a helpless and disoriented woman without the justification 2. Jail Policies and Procedures of a need for self defense, control, protection of others from an imminent The extreme use of a pepperball gun on a physical attack, or possible escape or riot. confused, crying, and clearly disoriented The statute makes endangennent a crime, woman who was not presenting a danger to and sets a criminal penalty associated with herself or others was in direct violation of misdemeanors for a "person who commits jail policies. The SDO violated Jail Policy the offense of inmate endangerment." 7.24 regarding use of force, which requires Elsewhere, the criminal code makes it a that escalating the use of force in the Jail felony to mistreat prisoners23 may occur only when a person presents an imminent danger of serious bodily hann or death to staffor third parties, and sets forth (iv) prevention of riot or escape. (2) A person who commits the offense of inmate criteria to be considered before endangerment shall be fined an amount not to exceed implementing use of force. There are four $500. factors to be considered before using

Mont. Code Ann. § 7-32-2248. increasing force: (1) ability to harm self or others, (2) opportunity to cause serious

23Mistreating prisoners. (1) A person commits the offense ofmistreating prisoners if, being responsible for the care or custody ofa prisoner, he purposely or knowingly: (2) A person convicted ofthe offense ofmistreating (a) assaults or otherwise injures a prisoner; prisoners shall be removed from office or employment (b) intimidates, threatens, endangers, or withholds and shall be imprisoned in the state prison for a term reasonable necessities from the prisoner with the not to exceed 10 years or be fined an amount not to purpose to obtain a confession from him or for any exceed $50,000, or both. other purpose; or (c) violates any civil right ofa prisoner. Mont. Code Ann. § 45-5-204.

Adele Report - November 2008 13 bodily injury, (3) imminent jeopardy, and moved away. She was scared and crying, (4) exhaustion of all reasonable options. but even if she had earlier been threatening to jump offthe bunk on her head, when the Adele did not have the ability to harm officer shot her she was no longer capable herself or anyone else when six shots were ofinjuring herselfor others. In fact she had fired into her cell. It is undisputed that eliminated any possibility of injury to Adele was the sole occupant of a locked herselfwhen she left the bunk area. cell, therefore unable to present a danger to staff or other inmates. The conflicting Officers neither tried, nor exhausted all evidence as to whether Adele actually meant reasonable options to de-escalate the to hurt herself or even had the means to do situation before more than six shots were so is irrelevant. The truncated video ofthe fired into her cell. The decision to pick up incident clearly shows that before Adele and bring the pepperball gun was made was shot she had complied with the without an evaluation of Adele's actual commands to step down from the bunk ­ behavior, medical status, or psychological removing any danger of injury to herself. state. The SDO arrived at the scene armed. When Adele was shot, she was standing on Anecdotal evidence indicated that Adele the floor next to a wall crying and lacked all had already been talked down from the desk. ability to hurt herself. Incomplete video evidence fails to capture any previous efforts or results before the Adele did not have the opportunity to inflict officer arrived with the pepperball gun. But serious bodily injury when she stood crying the video does show he only used orders and next to the wall. Staff must reasonably commands, escalating in volume and clear believe the inmate is within effective range anger, with little time to comply before and in a position to cause serious bodily further escalation and threats. At no time on injury or death to a staff or third party the video does it appear that the officer before escalating force. However, Adele simply tried to talk to her himself, have was not in range ofany item to inflict injury another team member talk to her, call a or in a position to cause serious bodily nurse to assist her, or seek guidance from injury. Rather, she was trying to obey the any ofthe three professional mental health officers' orders. When the first and resources available to him. subsequent shots were fired, Adele stood against the wall on the floor. The SDO violated Jail Policy 7.24 which states: "Force should be employed only to Without the ability or opportunity to inflict the degree necessary to control the inmate serious bodily injury, it is obvious from the and to the level that will be effective with tape no reasonable person would conclude minimum harm to both staff and inmate," Adele was in imminentjeopardy of serious and is "not to be used to punish, harass, bodily injury or death. She tried to comply coerce or abuse inmates." When the SDO with every order the officers shouted at her. fired the pepperball gun Adele was She stepped offor away from the bunk and complying with his commands to the best of

14 Adele Report - November 2008 her understanding. Multiple shots were The officers had water and materials fired without pause between them, available to wash her face, hands, anTIS and indicative more ofan intention to punish or exposed skin - none of which they did. cause harm than to bring order to a situation Instead, she was left nearly ilnmobilized for which was not out ofcontrol. at least 44 minutes in the chair, coughing, gasping, crying, and calling out that she was The officer also violated Jail Policy 7.24 by dying. Although a nurse came to visit her, using the pepperball gun excessively, rather the nurse apparently was completely than as the policy states: "only [] in [the] unfamiliar with the effects of OC, noting amount necessary to gain control and cause that Adele's thrashing in pain and to escape an inmate to cease [his or her] aggression." the effects of the OC powder seemed Therefore, use ofthe pepperball gun at all to "aggressive." cause Adele to cease aggression as she was attempting to comply with orders was The officers violated Jail Policy 7.24 unjustified: firing multiple shots on rapid regarding appropriate use ofrestraint chairs fire - the sound on the videotape is that the and soft restraints on wrists and ankles by shots were continuous, rather than spaced, using metal restraints. The chair is "molded was completely unjustified. fibreglass and [uses] soft wrist restraints made of webbed nylon and soft ankle The officers violated Jail Policy 7.24 by restraints of the same material." Soft failing to both immediately decontaminate restraints are necessary to prevent nerve and Adele or consider any medical effects ofthe muscle damage caused by metal cuffs OC. Recognizing the danger of "unduly compressing vulnerable nerves against injur[ing]" an inmate with pepperspray, the bones of the wrists and ankles. DRM Policy states: "[W]hen use offorce has been investigators examined the restraint chair used, and particularly when OC has been used, viewed the special leg restraints and used, the inmate will be examined by questioned the SDO about the restraints medical staff and receive any necessary used on Adele. Metal handcuffs were used treatment as soon as possible, including the as Adele came out ofthe police car and left opportunity to shower." Prior to using OC, on her when she was shoved backwards into "the person's medical information shall be the restraint chair with her arms captured considered." No one asked or even behind her, risking both wrist damage and considered whether Adele had a medical shoulder damage. Metal cuffs were also condition - which in fact she does - which used on her ankles to restrain her legs, can cause injury or death should she be contrary to Jail Policy. exposed to pepper spray. Adele was complying with orders when she exited the The Policy makes clear that use of the cell. There is a shower within 60 feet of restraint chair is justifiable for selfdefense, where Adele was restrained which offered protection ofothers, protection ofproperty, the opportunity for her to wash her face and and to prevent escapes. None of these exposed skin, or for an immediate shower. circumstances existed, either when Adele

Adele Report - November 2008 15 arrived or after she was shot with OC procedures including use of force, use of powder. Moreover, the policy directs that, restraint chairs, and use of OC. There is "[f]orce should be employed only to the also serious concern whether the SDO degree necessary to control the inmate and violated Montana statutes prohibiting to the level that will be effective with assault against inmates. minimum hann to both staffand inmate." It is "not to be used to punish, harass, coerce These problems are symptomatic of the or abuse inmates." When the SDO ordered issues that currently face the Sheriffs Adele into the restraint chair the second Department. Inadequate training and lack of time, she was compliant according to the appropriate oversight leads to erroneous official report. The video also showed she decisions that hann inmates. Ifthe State can was led by her hand out of the cell, crying serve its prisoners without use of restraint and stating she was dying. No resistance or chairs and prohibits their use in local aggression is shown on the video tape. The detention facilities, viable alternatives exist report admits she was compliant with for safely controlling and maintaining commands and had finished resisting. potentially violent inmates or inmates with Nonetheless, she was ordered restrained in mental illness without their use. As this the chair and not allowed to decontaminate case illustrates, having the restraint chair before such restraint, exposing her to cruelty and pepperball gun available, may lead and abuse, all contrary to Jail Policies. some staff to rely on equipment before utilizing less intrusive and less forceful methods ofcalming disruptive, agitated, or CONCLUSIONS mentally ill inmates.

From testimony and evidence obtained to RECOMMENDATIONS date, with minimal cooperation from the Jail and the Sheriffs office, it appears this was an unjustified assault. The SDO did not There are five areas where the Sheriffs take the time or correctly interpret the Department can improve its ability to infonnation available to realize that Adele identify, divert and humanely treat people was a person with mental illness and with mental illness and developmental developmental delays. Certainly the Jail disabilities who are brought to the Jail as administration has violated the Montana detainees. statute requiring jails to screen inmates charged with minor crimes for diversion 1. Screening, Booking and since the Jail had adopted no policies or Information Sharing adequate screening tools to do so, nor has it trained its staffto do adequate mental health a. The Jail must develop procedures and screening. The officers on duty and its SDO tools to comply with the statutory violated numerous Jail policies and mandate to screen all inmates for

16 Adele Report - November 2008 mental illness. The Jail will require e. The Jail will find or develop, in validated diversion screening tools to conjunction with the Diversion identify people with mental illness Committee, a validated diversion tool and develop agreements with mental which will be used at every booking health providers to accept inmates so to screen and evaluate all inmates for identified who are charged with mental illness, suicidality, mInor misdemeanors. This developmental delays and other evaluation must occur immediately disabilities. upon detention or as soon thereafter as practical. f. The booking orreceiving officers will obtain information from the transport b. Ifa detainee is brought into the Jail in officers to determine whether the an agitated state that makes it detainee has exhibited any abnormal unfeasible to book the person behavior during transport, orwhether immediately, the detainee must still the detainee IS known to the be asked a series of questions to transporting officers as a person with determine whether the detainee is a mental illness, developmental delays person with mental illness or or other disabilities and include this developmental delay, is suicidal, or information on the booking fonn. under the effects ofdrugs or alcohol. The detainee will also be asked about g. The Jail will compile and make any medical conditions including available on its computer system a list asthma, heart conditions or high of all persons transported by the blood pressure, which would affect Sheriff's Department to Montana decisions regarding use offorce. State Hospital, Montana Developmental Center, or c. If a detainee IS too combative, Providence Center on emergency struggling too much, or refuses to detention or for commitment and all respond, as a first choice the detainee transports to the local emergency will be placed in a cell until calmer. rooms for mental health evaluations or treatment. This list will be d. If a detainee IS restrained In a updated daily and made available to restraint chair after all reasonable the booking officers so all new alternatives have been tried, at every detainees can be checked against the check the SDO will ask the series of list to determine whether he or she questions regarding mental illness, has a history of mental illness or suicidality, etc., until the person is developmental disability. able to answer the questions or is calm enough to be released and h. The booking officer must make a booked. visual inspection of the detainee to determine whether he or she has any

Adele Report - November 2008 17 obvious physical or mental lieu of booking. Exceptional disabilities. circumstances include ifthe inmate is intoxicated to the point of being 1. Any infonnation obtained from the unable to cooperate or so agitated that visual inspection, booking, interview the inmate is unable or unwilling to or screening responses given to the communicate about the booking and fonn questions that indicates the screemng process. If an inmate is detainee may have a mental unable to be screened, evaluated, and disability, will be (a) recorded on the booked within 24 hours, the inmate fonn, and (b) a supervisor notified. shall be seen by a MHP within that This infonnation will be immediately time unless the inmate IS too available to any booking officer when intoxicated to communicate booking the person into the Jail. The effectively. booking officer will always check to detennine whether the Jail has 1. If after a detainee is booked, Jail previous contacts with the detainee personnel suspect that a detainee may which would alert the Jail staff that have a mental disability, he or she the person has a mental illness, will immediately notify the shift developmental disability or other supervisor and the nurses who shall disability, and what, if any, perform the steps set forth in these accommodations are required to recommendations. Other than for a maintain the person's health and psychiatric emergency, only a safety while in the Jail. qualified physician or psychiatrist shall detennine the treatment needs of If the detainee is charged with a a mentally disabled detainee. minor crime involving little or no injury to persons or property, the shift m. If the questions reveal or the supervIsor will call a MHP to detention staff are otherwise aware evaluate the detainee for mental that a detainee receives support and illness or developmental disabilities therapeutic services from the Western to detennine whether the person Montana Mental Health Center, requires commitment and to divert Winds ofChange, AWARE, OR!, or the detainee from the criminal justice other community providers ofmental system. health or developmental disability serVIces, the Jail staff will k. Every inmate will be screened, immediately notify the provider that booked, and evaluated within two the detainee is at the Jail. hours of arrival unless exceptional circumstances exist. Such n. Ifit is detennined that the person has exceptional circumstances shall be a mental disability and has committed documented in the inmate's file in a crime ineligible for diversion, the

18 Adele Report - November 2008 liaison, as designated by the Sheriff, nurse will direct the detainee to a between the Jail and the designated psychiatrist, doctor, or nurse court will notify the mental health practitioner with special training in court coordinator. working with people with mental illness and developmental disabilities 2. Medical Clinic retained by the Jail for the purposes of providing mental health a. The shift supervisor must direct the consultations, examinations and detainee with mental illness to the treatment decisions. medical clinic for further screening in the following circumstances: d. If a detainee is transferred from a psychiatric hospital to Jail, medical (a) if the person if charged staff will make reasonable efforts, with something other than a including exercise of the right of . . mIllor cnme; or jailers to obtain mental health (b) the MHP determines information, to get the necessary (i) the person has a mental records to continue the detainee's illness or developmental treatment at the time the detainee disability but does not need arrives at the Jail. The existing commitment, or treatment plan will be followed by the (ii) the person's disability Jail until another treatment plan is involves something besides prescribed by an appropriate mental illness or physician or psychiatrist. developmental disabilities. e. The ratio of medical staff to b. The medical clinic must complete a inmate/detainee ratio shall not be secondary questionnaire to elicit reduced, and all practical efforts will additional information as to the be made to replace medical staffand patient's disability status and whether consultants who stop working for the necessary accommodations are facility. required to meet the person's needs in the Jail. The medical clinic shall f. Nurses and MHPs will be scheduled maintain at least one nurse per shift between the hours of 7:00 a.m. and with special training in working with 10:00 p.m. In addition, MHPs and a people with mental and nurse will be on-call for the developmental disabilities. remainder of the day. There will be nurse and MHP coverage every c. If, upon further evaluation, the nurse Saturday, Sunday and holiday to determines the person may have a distribute psychotropic medications mental or developmental disability and do mental health evaluations, unnoticed by the detention staff, the medical evaluations, and other

Adele Report - November 2008 19 services recommended herein. There h. A psychiatrist will regularly evaluate will be at least one physician or the detainees who are on psychiatrist with additional training psychotropic medications to and experience in psychiatric and recommend whether or not the developmental disabilities available medication needs are being 24 hours a day for the detention staff adequately met or if changes are to call to discuss necessary responses necessary. to psychiatric or medical emergencies and who may come to the Jail as l. If a detainee is detennined through needed for evaluation of emergency the screening process to be mentally medication, restraint or seclusion. disabled, the detainee will be classified for housing pursuant to g. Only nurses will distribute instructions given by the doctor who psychotropic medications and only is prescribing the treatment plan. If appropriately licensed clinicians will the doctor determines the individual proscribe psychotropic medications. needs to be isolated from the general Nurses will maintain the medical population for protection of the records, note each time medication is detainee or other inmates, that person given, note any significant physical will be detained in a segregated unit or behavioral observations in the but will be provided ample detainee's medical records, and will opportunity to leave his or her cell for report any problems to a treating the number ofhours recommended by physician, nurse practitioner, or his or her treating clinician. Isolation psychiatrist. If a detainee refuses aggravates the symptoms of mental medication, it will be documented in illness and causes skills to deteriorate the file. The detainee will continue to in people with developmental delays, be offered psychotropic medications therefore, these conditions will not be after his or her refusal and the used to curtail opportunities for detainee will be referred to his or her recreation, socialization or physical treating psychiatrist as soon as and mental exercise. possible, but no later than 24 hours or upon the next business day, J. All detainee requests for treatment whichever occurs first. If a detainee will be documented and included in cheeks or otherwise accumulates the medical files and referral of such medication or inappropriately uses requests will be made to medical medication, such activity will be staff. noted in his or her file, additional precautions shall be observed when k. If a detainee is transferred from the offering medication and medication Jail to a psychiatric hospital, prison, will continue to be offered as prerelease center, or other facility, prescribed. medical staff will make reasonable

20 Adele Report - November 2008 efforts to transmit, with the detainee, call the MHP and the nurse on call to cun-ent treatment plans, and relevant evaluate the detainee's mental status medical records to the new facility. and to evaluate whether the detainee In any event, medical records shall be has suffered any injury. The MHP transmitted within three working will detennine whether a physician or days. psychiatrist should be called to provide medical support. The 3. Training specific behaviors that predicated intervention, the specific procedures a. Jail staff will be trained in how to considered, and why they were used effectively use the screening tools will be recorded in the detainee's identified or developed by the medical file. The nurse will offer Diversion Committee. calming medication. b. Jail staff will be trained in how to d. All Jail staffwill undergo training in recognize and effectively respond to the procedures described above a psychiatric emergency. In a before they begin working. Training psychiatric emergency, the Jail will address the use of force personnel will notify the shift continuum as it applies to people with supervisor who will contact the on- disabilities emphasizing de-escalation call MHP to determine what type of techniques when a person is intervention is most appropriate. If responding, as well as the criteria for the on-call MHP is not immediately increasing or decreasing use offorce available or there is a realistic as established in the Jail policies and possibility of immediate harm to the procedures manual. Retraining in use person or others, the staffmay use the of force policies will occur no less minimal amount offorce and restraint than every 12 months. necessary to defuse or control the situation, starting with calmly talking e. Training will address proper restraint to the person, calling a nurse to offer of detainees with mental illness and calming medication, then moving up alternatives to restraint. All staffwill the scale of use of force considering receive at least 8 hours initial training the criteria set forth in the Jail and thereafter 4 hours oftraining per policies and procedures manual. As year in screening, suicide prevention, soon as the detainee desists from side effects of psychotropic aggression or threatening self-harm, medications, and identification of the amount of force used will mental disability in classes conducted decrease. by an appropriate psychiatric training facility. c. Once the immediacy ofharm is under control, the Jail staffwill immediately

Adele Report - November 2008 21 f. Specific training, policies, and d. The Jail will enter into a contract with protocols regarding the use of the an appropriate resource for training pepperball gun and OC will be conducted by a psychiatrist for the developed in conjunction with the training noted in Section C above. Diversion Committee. This training, policies and protocols will be e. The Jail will contract with an maintained in written format and will appropriate mental health provider to emphasize the necessity to learn obtain training in how to reduce the whether a detainee has health use of seclusion and restraint when conditions which may make the use presented with a person with a mental of these types of force lethal. Such illness. protocols shall include a requirement that the situation must be evaluated 5. Citizens Oversight Committee before the pepperball gun or other similar devices are brought into use. a. The Sheriffs Depmiment will collaborate with the WSAA, the g. Jail staff will be trained in how to Diversion Committee, the County evaluate and report abuse or neglect Attorney and City Attorney offices of detainees with developmental and the State Office of the Public disabilities or elders as required by Defender, and other stake holders to Montana statute. In addition, Jail establish a committee made up of staff will be trained to report such interested citizens to whom inmates abuse or neglect to Disability Rights and citizens may bring concerns Montana. regarding the operation of the Jail, the treatment of inmates and other 4. Psychiatric and Other Resources matters arising out ofthe care, health and safety ofinmates at the Jail. This a. The Jail will enter into a contract with Citizens Oversight COlnmittee will be an appropriate resource for 24 hour formed following the recommended on-call coverage by MHPs. practices established by NIC, ACA, or other municipalities in the United b. The Jail will enter into a contract with States. an appropriate resource for 24 hour on-call coverage by a psychiatrist. c. The Jail will enter into a contract with an appropriate resource for training by MHPs regarding the criteria for commitment for persons with both mental illness and developmental disabilities.

22 Adele Report - November 2008 Attachments civil rights protection & advocacy system for montana disabilityrights. formerly Montana Advocacy Program m0ntana

October 8, 2008

Mike McMeekin, Sheriff & Coroner Missoula County Sheriffs Department 200 West Broadway Missoula, MT 59802

Re:

Dear Sheriff McMeekin:

Disability Rights Montana, is a private, non-profit civil rights organization designated by the Governor ofMontana as the State's protection and advocacy system for people with disabilities, including people with developmental disabilities and mental illness under Montana Code Annotated § 53-2]-169, 42 U.S.c. § 1080] et seq., and 45 C.F.R. § 51. Disability Rights Montana is legally charged to protect the rights of people with developmental disabilities and/or mental illness through activities to ensure the enforcement ofthe Constitution and Federal and State Statutes, under 42 U.S.c. § ]080](b)(2)(A). Disability Rights Montana is authorized to pursue legal means to achieve enforcement under 42 U.S.c. § 10807.

Disability Rights Montana investigates abuse and neglect of residents at publicly-funded institutions such as the Missoula Detention Center. As you may know, was in custody at the Missoula Detention Center on July 1,2006.

In the course ofour investigation, Disability Rights Montana uncovered the information contained in the draft report accompanying this letter. It is one of the functions of Disability Rights Montana to report to governmental agencies, and to the public, conditions or circumstances which burden or hinder the free exercise ofcivil rights by persons with disabilities. The enclosed is such a report. We have forwarded it to you to give you an opportunity to provide any information that may contradict the assertions or conclusions in the report. We will be finalizing the report in the coming weeks and will incorporate comments we receive from you if you provide them prior to October 20,2008. Once this report is final, it is our intent to release it to the public.

I 1022 Chestnut Street Helena, Montana 59601 I VoicefTDD 406-449-2344 ToU-free 800-245-4743 Fax 406-449-2418 I [email protected] I www.disabilityrightsmt.org To: Mike McMeekin, Sheriff Re: Date: October 8, 2008 Page: 2

In the report, we have not included Ms._s name, but instead used the fictitious name of Adele. Ifyou have any comments or questions about the report or its distribution, please feel free to contact me.

Sincerely,

DISABILITY RlGHTS MONTANA ~ Bernadette Franks-Ongoy Executive Director SHERIFF'S DEPARTMENT MISSOULA 200 W. BROADWAY ST. COUNTY MISSOULA MT 59802-4292

r::J c·") "'"E:3 c.'~ - ~ CJ C:;I " (J --l nl 0 I 0 .J::" ---~ --1 '.1 fil ::;:;. -< -0 ,r- R __ ,._ ...... - ::£:: -, '. , -~ ..- m Ll ) r':-:> 0 _.j (/) 0-

Monday, 13 October, 2008

Bernadette Franks-Ongoy, Executive Director Disability Rights Montana 1022 Chestnut Street Helena MT 59601

Dear Director Franks-Ongoy:

Thank you for providing me the opportunity to respond to your organization's report concerning the July, 2006, incarceration of~t our detention facility.

Nine days (from our receipt ofyour letter) is clearly insufficient to research, write and submit our response to such a lengthy and damning indictment. In order to properly present such a response, I will need some additional information and/or clmifications of your draft; those information needs are listed below. Once your reply has been received, we will prepare and submit a response as promptly as possible. I would request that completion ofyour report be delayed until the response process is complete.

1. Please provide documentation ofany attempts by any DRM staffmember to obtain information from us relating t~or the operation ofour detention facility (report footnote #3, page 3). According to our files, the information Ms. Volkerts requested was provided to the Missoula County Attorney's Office in August of2006 for review, redaction ifnecessary, then submittal to M.A.P. (now DRM). Did you receive those materials from Mr. Sehestedt?

2. Please explain the facts upon which you base the statement that Ms.~s, or was in July of2006, "well known" to the Sheriffs Department.

PAGE 1 OF 3 PHONE: (406) 523-4810 or 721-5700 or (AFTER HOURS) 829-4000 FAX: (406) 721-8575 or (24 HR. @ JAIL) 829-4080 3. Please explain the apparent contradiction between the report's detailed recounting ofsallyport and remand area "video evidence" (pages 8 and 9) and the statement that the "Sheriffs Department has consistently delayed or refused to provide information to the extent that at the time ofthis report essential evidence....including video tapes ofAdele's arrival at the Jail...has never been provided." ("Complicating Factors" footnote at page 3).

4. The report seems to use "senior detention officer (SDO)" and "shift supervisor" synonymously (pages 9, 16, etc.)? Our senior detention officers are not supervisors and use ofthat term l11

5. Please explain the facts upon which you base the statement that "the staffon duty at the Jail knew that her behavior was the result ofmental illness and that she belonged in a hospital bed." (page J2, with foundation language on preceding page).

6. Please explain the facts upon which you base the statement that Ms._las a medical condition "which could cause injury or death should she be exposed to pepper spray." (page 14). Specifically, what accredited medical research did you rely upon to reach that conclusion?

7. To who does your use ofthe term "potential aggressors" on page 15, column two, refer?

8. Please describe, in detail, the "inappropriate spending on unnecessary resources" alleged on page 16; to include expenditure descriptions, amounts offunds expended on each, exact or approximate dates ofthe expenditures and how those expenditures "starve[ed] the Jail ~fm0ney fOIapprcpriate trainiilg."

9. Please clarify whether the "Recommendations" section ofyour report (pages 17­ 23) is, in fact, a series ofrecommendations that you believe we should follow or a series ofmandates that we will follow, as is implied by the language ofeach recommendation. Ifthey are mandates, please identify DRM's independent legal authority to order such actions.

PAGE20F3 10. Please describe with particularity the professional detention and/or corrections officer training and related experience in that capacity for each ofthe repOli's authors.

Since Ms. Iwas brought to our facility from the institution that we rely on for pre-incarceration assessments and evaluations, it would be helpful for me to have a copy ofyour report on St. Patrick Hospital before I draft my response; at least the portions that relate to July 1st, 2008.

Sincerely yours, ~ Michael R. McMeekin

cc: Undersheriff Crego Captain Susan Hintz, Commander, Detention Division Charles McNeil, Counsel ofRecord

PAGE 3 OF 3 disabi lity rights_ formerly Montana Advocacy Program m0nta na

October 27, 2008

Sheriff Michael McMeekin Missoula County Sheriff's Department 200 West Broadway Missoula, MT 59802-4292

Sent by U.S. Mail and via e-mail

Re: Adele Report

Dear Sheriff McMeekin

1 received your response to the Adele Report and note that none of your comments deny any factual allegations of the report. Disability Rights Montana is not pursuing this investigation with the intent oflitigation, therefore the interrogatory type ofinfannation you are requesting is not necessary f()r you to supply a response. This report does not contain any infonnation that is new or unexpected. You are familiar with the facts or circumstances surrounding all ofthese events. IfYOLl provide verifiable substantive comments by October 31,2008, we will make every effort to include them in the Report. The report will be released to the public on November 3. 2008.

In an effort to clarify 3:ly misconceptions, 1 note the following. For ease ofcomparison, I respond to your comments/questions in the order raised.

1. You request "documentation" ofour attempts to obtain infonnation. For instance, Ms. Volkerts orally requested copies ofboth the Sally Port video tapes and the audio tape located near the shower area from Mike Sehestedt during her intenriew with SDO Sorini on August 3] , 2006. When she did not receive the tapes, she orally requested the audio and video tapes from you during your interview with her on September 19, 2006. According to her notes ofthat interview, you indicated that the Sally Port videos were in some way unviewable due to a sequencing or timing interface, but you assured her you would resolve this issue and provide the missing tapes. In an e-mail dated September 20, 2008, to Mark Foss, you memOlialized the discussion and requested Mark Foss obtain the Sally Port videos, shower audio tape, and a list oftimes Ms._had been at the facility. She did not receive the requested infonnation.

I 1022 Chestnut Street Helena, Montana 59601 I VoicejTDD 406-449-2344 Toll-free 800-245-4743 Fax 406-449-2418 I [email protected] I www.disabilityrightsmt.org To: Sheriff:v1ichael McMeekin Re: Adele Report Date: October 27,2008 Page 2

In a letter dated October 24, 2006, to Mike Sehestedt, Ms. Volkel1s again requested the tapes. In that letter, she also requested Ms.. s medical records and copies ofher fC)Il]ler records and bookings at the Detention Center. She did not receive them.

In her email to you dated January 19,2007, she reiterated her request for, among other things, the audio tape from the shower area, all infonnation regarding jail staff knowledge ofMs. .:; disabilities including pre-Spectrum medical records, the FBI investigative report, and copies of video training tapes for the use of pepper spray and the pepper ball gun. Again none ofthis intomlation was provided.

YOll are well aware of our interviews with SOO Sorini, Capt. Hintz, yourself, NP Judy ]\{unseJ], and several inmates who claimed to be witnesses to the pepperball shooting of Ms. _. You and your attorney curtailed our ability to interview the rest of the A Team. We also interviewed Ms land various provider staffand relatives regarding the incidents leading up to and the events subsequent to her pepperbaJl shooting. In addition. we interviewed both fanner and then current detention statl who kne\'I/ or knew ofMs. Fand voluntarily provided additional infannation. We reviewed the hand held video recording of the incident as well as the Remand and Booking area video tapes. SDO Sorini's report, and vmious other documents you provided.

Our legal authOlity to access this infom1ation was provided to you in Ms. Volkerts' letter dated August 3, 2006, and her letters to Mike Sehestedt dated August 28, 2006, September 14,2006, and October 24, 2006.

2. Please see my response to your comment ,r 5. I believe this infonnation is contained within the body ofthe repOli, e.g. the second full paragraph on Page 8.

3. SOO Sorini's report alleges that Ms. arrived out of control and required all the officers present to control her. Since he stated he was not in the sally port, or even in the remand area when she arrived, he would have only seen her entering the remand area quietly. The evidence available refutes his report. Nonetheless, you failed to provide the sally port videos, among other evidence, after repeated requests.

SDO Sorini's report indicates Ms._was restrained for 44 minutes. There is no independent confinnation of how long it took for her to be decontaminated as that infonnation is neither in written records nor on video tape. However, the audio tape at the entrance to the shower area should have established how long she waited at or near To: Sheriff Michael McMeekin Re: Adele Report Date: October 27, 2008 Page 3

the shower area before she could decontaminate. After repeated requests, both oral and written, that infonnation has never been provided.

4. We will change all references of Shift Supervisor to Senior Detention Officer in response to your comment at ~ 4.

5. With regard to ,r 5 (and '12, as noted above), regarding what the detention staffknew or didn't know about Ms. _or her mental illness, your employees are imputed with knowledge of what is in your own records. Even the briefest review ofher history with the Sheriffs Department would have revealed she had been taken by Sheriff Department staff to Montana State Hospital at least twice for commitment. She had been incarcerated at least four times previously at the lVlissoula Detention Center on minor charges. Other stan- who had worked with her at the detention center stated it was obvious that she sutfered from mental illness and/or mental retardation. All this infom1ation is set forth in the report.

6. Ms. _has asthma. which when combined with pepper spray or OC can lead to severe asthma attacks. Sinceivls. .has been incarcerated at least four times previously, one expects that competent Detention Center medical history records would reveal her chronic illnesses. Your own Policy 7.24 rclguires inquiry into and consiJi:ration ofthe person's heal th issues when OC is contemplated or used. There is no evidence any inquiry was made: That's the point.

According to the notes by the RN who visited Ms] fbrief1y after she was shot, the nurse failed to ask any questions regarding asthma or high blood pressure, both of which have been connected to deaths in the use ofOc. See the U.S. Dept ofJustice, Research for Practice, "The Effectiveness and Safety of Pepper Spray."

7. The sentence to which you have objected is unclear, and we will remove it.

8. The basis for our conclusion that Detention stafThad inadequate money for training is based on how Ms. _was treated in this situation and information by tornler staff regarding the lack oftraining resources. Trained staff should have treated Ms. • very differently: first, by following MCDF policies regarding restraint and use of force; second, by calling tor medical assistance to offer medication to calm her; and third, by using the mental health staffavailable or on call to respond to her alleged suicidality. The reference to inappropriate spending on unnecessary resources is not directly related to the investigation and will be removed. To: Sheriff Michael McMeekin Re: Adele Report Date: October 27,2008 Page 4

9. In response to your ~ 9, our recommendations are, as titled, recommendations. We may rewrite this section to clearly retlect these as recommendations. The substance wi 11 not change.

10. Your request for the professional detention officer training ofour investigators is inelevant: the Adele Rep0l1 is not a Complaint. Disability Rights Montana is a civil rights advocacy and protection agency, and our investigator is a trainee! civil rights attorney who has been involved in issues relating to imnates. jails. and law enforcement in a variety ofsenings.

The Adele Report is specific to the fllcility which you supervise. Regardless of what happened at St. P·:vrick Hospital, your officers used excessive force against a helpless woman with disabilities. The Adele Report stands as an independent document. As a courtesy, when the 51. Patrick repL1rt is complete, we will provide you with a copy. Publication of the Adele Report will not wait tor the completion of the 51. Patrick Hospital report.

J look 11)r,vard to your response.

Sincerely yours,

DTSABILlT'{ RIGHTS MONTANA /~/".~"-c:... /;?? A' . C:.----~ // c:.. . / Bernadette Franks-Ongoy Executive Director Bernie Franks-Ongoy

From: Mike McMeekin [[email protected]] Sent: Monday, October 27, 2008 8:49 PM To: Bernie Franks-Ongoy SUbject: Re: Responses to your October 13 letter

Bernie) I'm having e-mail problems. Did you receive my reply (either once or twice) sent a few minutes ago indicating that I'm at an out of state school all week & can't submit the response by Friday??

Thanks) mike Bernie Franks-Ongoy

From: Bernie Franks-Ongoy Sent: Tuesday, October 28, 2008 9:36 AM To: 'Mike McMeekin' Subject: RE: Responses to your October 13 letter

Hi Mike) This is the only e-mail I received. Being that you are out of state) we will extend the time for you to respond to close of business Friday) November 7. The report will then be released to the public on Monday) November 10.

Take care) Bernie

-----Original Message----- From: Mike McMeekin [mailto:[email protected]] Sent: Monday) October 27) 2008 8:49 PM To: Bernie Franks-Ongoy Subject: Re: Responses to your October 13 letter

Bernie) I'm having e-mail problems. Did you receive my reply (either once or twice) sent a few minutes ago indicating that I'm at an out of state school all week & can't submit the response by Friday??

Thanks) mike Bernie Franks-Ongoy

From: Mike McMeekin [[email protected]] Sent: Friday, November 07, 2008 11 :34 AM To: Bernie Franks-Ongoy Cc: Charles E. McNeil Subject: Response tol »report

Bernie,

I have not had an opportunity to work on the response this week. Will do my best to complete it this weekend, with an e-mail copy to you by Monday followed by a signed original in the mail.

Have a good weekend, mike

1 MISSOULA SHERI FF'S DEPARTMENT COUNTY 200 W. BROADWAY ST. MISSOULA MT 59802-4292

Sunday, 09 November, 2008

Bernadette Franks-Ongoy, Executive Director Disability Rights Montana l022 Chestnut Street Helena MT 59601

Dear Director Franks-Ongoy:

Thank you for agreein~ to make the changes noted in numbered subparagraphs 4, 7,8 and 9 ofyour October 2i reply to my earlier request for clarifications.

The first sentence of your reply describes my October 13 th letter as a "response to the Adele report" and the second sentence states that since you are not pursuing litigation, the interrogatory type ofmy request was not necessary. I disagree. My letter was clearly intended as a request for clarification ofseveral points in DRM's draft report; never as a response. The questions were necessary in order for me to prepare our response.

Based on the language ofyour October 2ih letter in which you will "make every effort" to include "verifiable substantive comments" from us in your report, it would appear you do not intend to attach our complete response. For that reason, we are preparing a comprehensive response and will independently disseminate it to anyone asking us about the DRM report. You will be provided with a copy as soon as it is completed and approved by counsel.

Please mail me a copy ofyour report's [mal version so that our response can be accurate in references to points and page numbers; an e-mail with the report attached will speed up the process. Thank you.

Sincerely yours, 71 Michael R. McMeekin

PHONE: (406) 523-4810 or 721-5700 or (AFTER HOURS) 829-4000 FAX: (406) 721-8575 or (ff~~.1~fA~) 829-4080