LINCOLN, Neb. (KOLN) – A new report by a watchdog agency for Nebraska State Correctional Services alleges excessive use of force was used on an inmate with a history of mental health issues.
According to the Office of Inspector General’s report, the incident happened in June 2021 when an inmate at Tecumseh State Correctional Institution was causing a disturbance and threatening staff in a common area of a housing unit.
The report alleges, in response to the disturbance, more than 200 projectiles were shot at the inmate, who has a documented history of mental illness.
Following this happening, NDCS investigated and two employees were disciplined. Now, ombudsman Doug Koebernick’s office is releasing the results of their independent review.
The report starts by detailing the inmate’s history of serious mental illness and disruptive behavior. The inmate spent much of his time incarcerated living in a mental health unit.
Based on video and audio evidence reviewed during the investigation, NDCS staff reported the man was acting “unusual and aggressive” and was screaming in his housing unit around 4:30 p.m. on the day of the incident.
The report lists several actions taken by NDCS staff.
First, they cleared the housing unit of other inmates, barricaded the man into the area, and called the “use of force team” to the facility.
While that was happening, the report said the inmate was attempting to make small weapons with what he could find around the unit. When a staff member tried to talk to him, the report said the inmate told the staff member he would “stab staff in the neck.”
A few minutes after that threat, the report said staff began shooting pepper balls at the inmate. Koebernick writes that during this time, audio recordings captured staff talking about the inmate and past instances where they had tried to use projectiles on him and it didn’t work.
They were quoted saying “the last time we unloaded on him and it didn’t affect him, so the more the merrier.”
A phone call between two high-ranking corrections officers during the incident also captured a warden stating he’d love to shoot the inmate with a “mini-14 and be done with it.” The report said a mini-14 is a semi-automatic rifle.
More than three hours into the incident, the report said the use of force team entered the housing unit and deployed flash-ban grenades, less-lethal shotgun rounds, and pepper balls at the inmates. This prompted the inmate to hide in the shower room.
The report said by 9 p.m., the inmate was finally subdued.
“It was only after his body was pummeled by countless blows from the projectiles fired at him that he laid on the ground and surrendered. This is in conflict with the policy,” Koebernick said in the report.
The report estimates the inmate was shot at around 200 times over a few hours. It said many of the rounds hit him, including one shot to the head with a pepper ball. This is considered lethal force and the staff member who deployed that shot was disciplined, per the report.
According to the report, in an exam after the incident, medical staff found open wounds all over the man’s body, bruises, and a broken finger. At least three of the rubber bullets remained lodged in the man’s skin for months after the incident.
Former NDCS director Scott Frakes said he didn’t consider the injuries to be serious.
In the investigation into this incident, it was discovered the same inmate was involved in a similar use of force incident in December 2020 when dozens of projectiles were used in an attempt to subdue him after he became aggressive during a strip search.
The report said in that instance, the inmate was shot at around 60 times with various projectiles before being taken into custody, a memo on the incident included a comment by staff that said “When direct impact rounds are showing to be ineffective then alternate actions need to be considered.”
In response to the 2021 incident, Koebernick outlined several findings.
The first was that his office found that the incident was mishandled in many ways, including the use of force. Koebernick writes that the staff incorrectly utilized rules for use of force, and took an unacceptable amount of time to get the situation under control.
“In reality, one individual with a serious mental illness armed with three self-made weapons essentially became the focus of the prison for hours as many staff in the facility spent time away from their job duties and the facility was placed in a locked-down status,” Koebernick said.
He also said many other inmates and staff members were impacted by the “expansive” use of chemical agents.
Koebernick also cited a lack of clear leadership, resulting in a chaotic scene and in “unnecessary use of lethal force and excessive amounts of less-lethal force”.
The report also points back to the previous incident involving the same inmate in 2020, and that the response to the June 2021 incident did not result in a better reaction to the use of force.
“It was also known that when he is having such an episode, he is seemingly oblivious to pain, yet he was shot repeatedly by pepper balls, 12-gauge stinger rounds, 40 mm impact rounds, and 12-gauge bean bag rounds,” Koebernick wrote in the report.
Koebernick also notes that despite the inmate’s history of serious mental illness, mental health staff’s actual involvement in the incident was “minimal.” He said while staff were in touch with the building’s psychologist during the incident, no licensed mental health staff attempted to de-escalate the man.
The report also highlights a lack of communication about the incidents. Koebernick said it seemed department leaders weren’t informed about the December 2020 incident until after the June 2021 incident. It alleges NDCS also deliberately delayed providing records of the event to the ombudsman’s office.
Koebernick also recommended changes that NDCS should make going forward. NDCS either accepted or partially accepted a number on the list including updating the department’s use of force policy to include more mental health professionals, implementing a plan to create individualized de-escalation plans, and a call to provide more mental health training to staff.
NDCS rejected a suggestion to improve on-call compensation for mental health staff and there were no staff present during the incident.
As a result of this incident, the report states that the Director of NDCS at the time, Scott Frakes, discontinued the use of pepper ball launchers in July of the same year. However, just a few months later it was decided pepper ball launchers could be used, but fewer of them could be deployed at once by staffers who weren’t a member of the use of force team. The report said special forces teams can still use the pepper ball launchers used in this incident.
The report said there has also been another incident like these two at a different facility involving a pepper ball launcher.
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