OFFICE OF THE

DISTRICT ATTORNEY
SACRAMENTO COUNTY
JAN SCULLY
DISTRICT ATTORNEY

CYNTHIA G. BESEMER
CHIEF DEPUTY

June 7, 2006

Assistant Sheriff David Lind
Sacramento County Sheriff’s Office
711 G Street
Sacramento, CA 95814

Re:

Use of Force – Investigation and Findings
Sacramento Sheriff’s Department # 05-91690
Incident of December 1, 2005 at Main Jail

Dear Assistant Sheriff Lind:
This report addresses our investigation and review of actions of deputies assigned to the Main
Jail on December 1, 2005, to determine if criminal charges are warranted. These actions
followed a disturbance by several inmates who flooded their cells. We have found:
•

Once compiled and reviewed, the evidence is not sufficient to warrant criminal
prosecution of any of the deputies involved for violations of Penal Code sections 147
(inhumane treatment of a prisoner), 149 (assault by an officer), 673 (corporal punishment
of a prisoner), or any other crime. Factors which contributed to our conclusion in
evaluating the culpability of the deputies included inadequate administrative supervision
of Sheriff’s staff in the jail, and language of certain Sheriff’s operating orders.

•

At different points the Sheriff’s Department failed to provide the District Attorney with
information we were authorized by law to receive, variously refusing to supply
information, delaying information, or employing practices that otherwise hindered the
investigation. In particular, the practice of ordering all sworn officers (even those who
were neither targets nor criminal suspects) to give statements with the promise of
criminal immunity (the Lybarger procedure discussed in greater detail below), then
refusing at one point to turn such statements over to our office, hampered our ability to
obtain information from all relevant witnesses and to conduct a thorough independent
investigation.

P.O. Box 749 * 901 G Street * Sacramento, California 95814
(916) 874-6218 FAX (916) 874-5340

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I. REVIEW PROCESS
The District Attorney’s Office conducted its investigation and review as an independent agency.
Our investigation included the interview of witnesses, and the review of written reports and other
documentary items, including: Sheriff’s casualty reports, jail incident reports (PF10 computer
screen reports) and supplemental reports; video recording of the cell extractions; photographs;
interviews of inmates, and Sheriff’s personnel; District Attorney investigative reports and
supplements, diagrams and logs; Sheriff’s Office personnel files; Sheriff’s Department
Operations Orders; inmate incident reports; documentation on the technical data of flash-bang
tactical grenades; Sheriff’s diversionary devices training information; and legal authorities
relating to the use of force by law enforcement officials in a custodial setting. In reviewing the
materials, internal inconsistencies contained in the witnesses’ statements and discrepancies
between various witnesses’ statements were considered. We also considered what each witness
was able to see, hear or otherwise perceive as established by the audio/visual record. The
criminal histories of the involved inmates were also reviewed to evaluate credibility.
We considered Sheriff’s Department policies and procedures as they related to the “use of force”
tactics employed by deputies on December 1, 2005. We do not address issues of civil liability.
II. FACTUAL SUMMARY
In the Main Jail, 400 pod (located on 8 Floor West) is used to house inmates who are particularly
dangerous or disruptive. The area has cells on both an upper and a lower tier. On December 1,
2006, shortly after 7:30 p.m., deputies noticed water flowing over the upper tier walkway and
draining onto the main floor of the pod as a result of cell flooding. [Cell flooding occurs when
inmates leave the water running after plugging the toilet and sink drains in their cells and is not
an uncommon occurrence in the jail]. Deputies shut off the water to the offending cells, and put
magnetic covers over the cell door windows. The inmates began yelling and kicking their cell
doors.
Five inmates on the upper tier were determined to be responsible. Three were being held on
murder charges, one was pending multiple robbery counts, and one was pending drug charges.
The acting Watch Commander, Sgt. Donald Black, directed that a Custody Emergency Response
Team (CERT) be used to extract the inmates from their cells. Following assembly and briefing,
the team arrived at 8 Floor West shortly before 8:30 p.m. Sgt. Black personally led and directed
the extractions. One cell at a time, each inmate was directed to lie down on the floor of his cell.
In a matter of seconds, the feeding port was then opened and a flash-bang grenade (designed to
briefly stun and disorient, but not to cause injury) was inserted into the cell. After the flash-bang
went off, each cell was opened and a team entered, physically subdued the inmate, and took him
to the lower level. The inmates were not afforded an opportunity to submit to handcuffing
through the food port nor to voluntarily leave their cells. Ultimately, the five inmates on the
upper tier, and one inmate on the lower tier who began yelling and inciting others, were
subjected to this procedure. After the extraction, each inmate was placed in a prostraint chair for
a period of time, then relocated to a different cell. The extraction process was video recorded for
the first five extractions but, due to battery failure, the sixth extraction was not video recorded.

Page 3

Three inmates suffered only minor bruising or “complaint of pain” type injuries. Inmate Michael
Toro suffered a chin laceration and a fractured nose. Inmate Jason Morrison suffered flesh burns
to his upper left chest and arm. Inmate Daniel Lucas suffered burns to his upper inner thighs. In
addition, inmate Jessie Kerwin had powder burns on his pants near the right hip and upper thigh.
The burn or powder burn evidence on the persons or clothing of Morrison, Lucas and Kerwin,
taken together with other evidence, indicates each was lying on the floor as directed when the
flash-bang ignited.
Because the case involves six separate extractions with six individual inmates, each with some
discrete elements, a full factual description is complex. The factual chronologies, differing
versions, and various injuries suffered are given more detailed treatment in Attachments A, B, C
and D.
III. INVESTIGATION HISTORY: CONTACTS WITH SHERIFF’S OFFICIALS
Ordinarily we do not comment on the cooperation of other agencies. In this instance, however,
the circumstances surrounding the referral of this matter to our office by the Sheriff, and the
subsequent conduct and responsiveness of the Sheriff’s Department to our investigation,
significantly impacted our ability to discover and evaluate the facts of this case.
On the afternoon of Tuesday, December 6, 2005, this matter was brought to our attention for the
first time. Assistant Sheriff David Lind and Captain Glenn Powell met with Assistant Chief
Deputy District Attorney Albert Locher seeking an evaluation of the use of force by officers in
an incident which had occurred the previous Thursday evening at the main jail. They presented a
brief verbal description and showed Mr. Locher a computer video file of cell extractions, which
involved the use of flash-bang grenades to extract recalcitrant inmates from cells on December 1,
2005. No written reports were provided. Mr. Locher made a copy of the video file on his
computer. The video file was forwarded to the District Attorney’s Special Investigations Unit,
which conducts peace officer defendant investigations and prosecutions.
On December 7, the Sheriff’s Department publicly released details of the incident. On
December 8, the Sheriff’s Department issued a formal press release about the incident, which
concluded with the statement, “The matter has been referred to the District Attorneys Office for
review.”
During the month of December, the Sheriff’s Department provided limited information to the
Special Investigations Unit, i.e. basic inmate casualty/injury reports and some fundamental
information on flash-bangs.
On January 12, 2006, Don Cox, an investigator from the District Attorney’s office, contacted
Sgt. Coffman of the Sheriff’s Internal Affairs Division requesting additional information,
including statements by Sheriff’s jail personnel, regarding the December 1 incident. Sgt.
Coffman advised Cox that he could not provide any statements of sworn personnel who were
interviewed as part of the Internal Affairs investigation because the statements were compelled
under the threat of disciplinary action. According to Sgt. Coffman, and as confirmed by Captain

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Powell, an agreement between the Sheriff’s Department and the Deputy Sheriff’s Association
(DSA) states that all statements taken from sworn personnel during the course of an Internal
Affairs investigation would be given only when compelled with a Lybarger admonition. He
further advised that by policy, any Lybarger compelled statement would not be furnished to the
District Attorney’s Office in conjunction with a criminal investigation.1 He did, however,
provide Sheriff’s Operational Orders, jail logs, written training materials and a timeline
spreadsheet regarding removal of inmates from cells.2
On January 18, a written request was delivered to the Sheriff’s Department asking for a copy of
statements made by personnel who were not targets of the Internal Affairs investigation. A
second request was made directly to Captain Powell on February 2. He again declined to
provide statements from non-targets of the Internal Affairs investigation citing the terms of the
agreement with the DSA as precluding such a disclosure. After considerable discussion, Captain
Powell did release the names of Sheriff’s personnel, sworn and civilian, who were witnesses to
the December 1 cell extractions. He also provided three non-compelled statements taken by
Internal Affairs investigators from Deputy Michelle Ball, Deputy Aimee Phillips and Lieutenant
Gordon Smith.
On February 9, Sgt. Coffman contacted District Attorney Investigator Jeanne Williams and told
her Assistant Sheriff Lind had directed him to notify us that employees would not be compelled
to talk to or give a statement to the District Attorney’s Office regarding this incident. This
blanket rule applied not only to persons who might be targets of the investigation, but also to
employees who were not targets. Sgt. Coffman told Investigator Williams that we could attempt
to contact these officers but he believed they would not talk to us.
Between February 12 and 28, District Attorney investigators were able to interview two nurses,
Janice Koci and Dorette Behrendt, Lieutenant Gordon Smith and Deputy Phillips. However,
Deputy Ball did not respond to a request for an interview.
On March 17, Don Steed, Supervising Deputy District Attorney of the Special Investigations
Unit met with Assistant Sheriff Lind to discuss the status of this case. Lind again advised Steed
that since the Sheriff’s Department was conducting an internal affairs investigation as opposed to
a criminal investigation that the Peace Officer Bill of Rights3 prevented him from providing
compelled statements of any employees who were targets of their investigation. He further
advised Steed that on this basis, his office was precluded from providing any further information.
Steed told Lind that our office would be sending letters to all Sheriff’s personnel interviewed by
Internal Affairs investigators asking them to voluntarily participate in interviews by the District
Attorney’s staff regarding this incident. Lind was assured that the letter would clearly state that

1

Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822: As a matter of constitutional law, a public employee has
no absolute right to refuse to answer potentially incriminating questions posed by his employer. If the employee
claims that by answering employer questions he may incriminate himself, then he is ordered to answer but is
guaranteed that his statement will not be used against him in any subsequent criminal proceeding. This procedure is
deemed to be adequate protection for the employee’s right against self-incrimination. See also Garrity v. New
Jersey (1967) 385 U.S. 493.
2
See Attachment E, an expanded version of this document.
3
Public Safety Officers Procedural Bill of Rights Act, Calif. Gov. Code sections 3300-3312.

Page 5
our investigation was independent of the Sheriff’s Department investigation. In addition, Steed
requested a complete list of all employees involved in this incident.
On March 22, a list of names of sworn personnel involved in this incident was sent to Assistant
Sheriff Lind for him to confirm. The next day Lind provided an updated list containing three
additional names, one deputy and two sergeants. On March 24, Lind responded, noting that the
three had been given the Lybarger admonition and the Sheriff’s Office would not make their
statements available to us.
On March 23, the District Attorney’s staff delivered fifteen letters to the Sheriff’s office for
distribution to the sworn officers identified as having been involved in the December 1 incident,
seeking their cooperation in the investigation. Only one officer responded to the letter and she
declined to be interviewed on the advice of legal counsel provided by the DSA.
On April 6, Chief Deputy District Attorney Cindy Besemer, Assistant Chief Deputy District
Attorney Albert Locher, and Supervising Deputy District Attorney Steed met with Assistant
Sheriff Lind to express concerns about his department’s handling of this matter and the lack of
cooperation with our office. Our concerns were twofold. First, we were concerned about the
apparent use of Lybarger admonitions and the taking of Lybarger compelled statements from
persons who were neither targets, nor suspects. Lybarger, its progeny, and the underlying federal
authority (Garrity v. New Jersey (1967) 385 U.S. 493) are grounded in the Fifth Amendment
right against self-incrimination. That right may be invoked when a person faces the danger of
prosecution. The policy that had been described to us (giving a Lybarger admonition and
compelling statements from every sworn officer interviewed in an IA investigation, whether
criminal suspect, target of discipline, or witness) goes far beyond that. Neither the Peace
Officer’s Bill of Rights (the applicable section being Government Code 3303(h)) nor any case
law compels such a sweeping practice. Officers who are mere witnesses face no danger of
prosecution, nor do officers who may face discipline for non-criminal employment infractions.
Using a Lybarger admonition to compel the statements of mere witnesses, then shielding those
statements behind the veil of personnel records confidentiality, does less to protect the witness
officer’s rights than to insulate any suspect officer from effective review of possible
misconduct.4
Our second concern was the withholding of all compelled statements and indeed all personnel
file material from the District Attorney’s Office. We have, in the past, elected to forgo obtaining
the compelled statement of an officer who is the target of a criminal investigation. We have also
asked for and received access to peace officer personnel files when in our judgment the situation
warranted. California law makes it clear that such statements (even the compelled statements of
suspect officers) are not confidential from the District Attorney conducting an investigation into
peace officer conduct, and the District Attorney needs no court order to obtain such records.5
4

Indeed, in any ordinary circumstance where an incident which warranted referral to the District Attorney’s Office
occurred in the Sheriff’s jurisdiction, and was witnessed by a Sheriff’s officer, it would be a routine matter for the
officer to write a report. If for some reason the officer did not write a report in the first instance, it would be routine
for our office to request one if needed, and for the officer to provide one. We can conceive of no legitimate reason
why that routine practice does not extend to this situation.
5
Penal Code § 832.7(a); People v. Gwillim (1990) 223 Cal.App.3d 1254 3d 1254; Fagan v. Superior Court (2003)
111 Cal.App.4th 607.

Page 6
The District Attorney’s Office recognizes our responsibilities with respect to the release of
information in such records, or the use of any compelled statement against the officer who made
the statement. Once we have determined that we intend to review these materials, the Sheriff has
no statutory or other authority for withholding them from the District Attorney’s Office.
In the April 6 meeting we asked for the compelled statements of all employees except Sgt. Black,
since we had determined he was the focus of our investigation (although even in that event, we
are legally entitled to have his compelled statement if we choose). On April 10 Assistant Sheriff
Lind had the compelled statements of the involved officers interviewed during the Sheriff’s
administrative investigation delivered to the District Attorney’s Office. The information was
provided, according to Assistant Sheriff Lind, in compliance with the confidentiality exception
provided in Penal Code section 832.7 and People v. Gwillim.

IV. THREE POINTS OF DECISION & ACTION BY SHERIFF’S JAIL STAFF
Three points of decision and action involving the use of force by sheriff’s staff have been
considered in this case – the forcible cell extractions, the use of flash-bangs in the cell
extractions, and the restraint of the inmates in prostraint chairs after they were extracted from
their cells.
A. Use of Force in Cell Extraction
As the facts develop, the first point that raises questions is the decision to remove the inmates
from their cells by means of forcible cell extractions. An alternative would have been to give
each inmate the opportunity to leave his cell voluntarily, without resorting to force. This section
sets out the facts as to how forcible cell extractions came to be used.
According to the information received, the CERT team was organized in a jail conference room
and a pre-extraction briefing conducted by Sgt. Black and CERT Team leader Deputy O’Brien.
They reviewed the history of each inmate and emphasized the potential danger involved in the
extractions, particularly from inmates Toro and Kerwin, who were identified gang members. The
responsible inmates were housed in single cells in the 400 pod because of their jail disciplinary
history, which included assaults on other inmates and threats to jail staff. There is no evidence
that during the pre-extraction briefing, Sgt. Black ordered flash-bangs to be used. Neither is
there evidence that voluntary inmate exits were considered. Based on accepted techniques there
is evidence that the facts of each extraction situation would dictate whether a diversionary device
was needed and the degree of force needed.
Due to the position of the video camera that recorded the extractions, the video does not show
what occurred inside each cell. In three of the six extractions, reports or statements indicate the
inmate was not on the cell floor as directed when the officers entered. In three of the extractions,
statements indicate the inmate struggled, and in three the inmate hid and/or resisted presenting
his hands for cuffing. [As to these factors, it varies from case to case which factors were present
in which extraction. See Attachment C.] The audio track on the video allows us to hear some of
what was spoken, and in some of the cases voices are heard stating, “Quit resisting.” There are

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also sounds consistent with physical force being applied. Once each inmate was cuffed and
shackled, the officers moved him to the lower tier where he was secured into a prostraint chair.
Attachment C gives a detailed description of each individual extraction.
The involved officers submitted written reports that listed justification for the forcible extractions of
the inmates based upon their criminal histories and deviant jail behavior. The officers who inserted
the flash-bangs indicated they did so at the direction of Sgt. Black, believing that the inmates had
failed to comply with his directives. Each team member stated they acted in a departmentally
approved manner and at no time maliciously exposed an inmate to risk of injury when the flash-bang
was inserted or when physical force was applied. The staff denied there was a pre-extraction plan to
use a flash-bang in every cell and to use force to remove each inmate. However, the officers stated
they expected these particular inmates to resist and anticipated the need to use force to remove the
inmates from their cells. Based upon all the evidence, the voluntary exit of the inmates was never
considered an option and no such opportunity was offered to the inmates.
B. Flash-bang Diversionary Device
The next decision of significance relates to the use of flash-bang grenades as part of each
extraction. A flash-bang was deployed in the confined space of each inmate’s cell, and resulted
in injury to two of the inmates, so the reasonableness of its use must be evaluated.
The flash-bang6 produces an explosive report, flash and some smoke, temporarily creating a state
of confusion or disorientation. One of the intended uses for the device is in cell extractions. It is
designed not to injure, but there is potential for injury when the device is deployed within two
and one-half feet of a person. The device is meant to temporarily distract the inmate from
making an organized defense, giving officers a significant tactical advantage in gaining control
of the subject. It should only be deployed by trained personnel.
Lt. Gordon Smith was identified as the Sheriff Department’s leading authority in the use of
diversionary devices, including the flash-bang. He was interviewed by investigators from the
Internal Affairs Division and the District Attorney’s Office and had an opportunity to review the
video/audio recordings of the cell extractions and reports of the December 1 incident. He
provided this office with training materials that are the source of reference for Sheriff’s
personnel in the use of a flash-bang device in a custodial setting. Lt. Smith has had extensive
training and field experience in cell extractions and the actual deployment of flash-bang devices
in a custodial setting. He instructs law enforcement personnel throughout northern California on
these topics.
During an interview with Captain Powell on December 27, Lt. Smith stated the conduct of the
inmates during the entire incident of December 1 (i.e. the cell flooding, yelling, banging on
doors, etc.) did not present “any real exigency”. This opinion was based upon his review of the
video recording, the nature of the incident and his past experience as a jail watch commander.
6

Combined Tactical Systems, Inc. manufacturers the Model 7290 Flash-bang Tactical Grenade. According to the
company the device is designed for and is frequently used in cell extractions. Potential problems occur when the
device is deployed too close to a person, which can mean the subject is exposed to “over pressure” and the
“fireball.” The device very briefly reaches a temperature of 4,000 degrees, but has a low fire potential.

Page 8
The inmates were secured in their cells and there did not appear to be any uprising by the
inmates. Lt. Smith stated that, depending on the demands of the particular situation, the use of a
flash-bang in a cell may be acceptable as part of a cell extraction.
Lt. Smith stated officers are instructed that before deployment of the device into a cell, the
location of the inmate must be known so that the flash-bang can be deployed into a safe location.
The device will not cause injury when properly used. Lt. Smith instructs officers to perform a
“quick peek” prior to deployment to determine if the inmate is compliant. He stated that Sgt.
Black’s order to each inmate, “Get on the [cell] floor,” is acceptable practice. There is the option
of having an inmate back up to the food port and place his hands through the port to be
handcuffed. However, he stated this may not always be the most viable option depending on the
history of the inmate and the immediate circumstances.
When Captain Powell asked if it is appropriate to introduce a flash-bang into a cell with the
inmate on the floor, Lt. Smith responded that it depends on the circumstances but, in most
instances, if an inmate is complying with instructions a flash-bang would not be deployed. He
was asked his opinion whether or not the “quick peek” by Sgt. Black was adequate. He
responded, “It’s hard to tell from the video whether a peek actually even occurred…it appeared
that all the deployments were done from a standing position and the only visible area that could
have seen through would have been the food port”. He was aware that Sgt. Black lifted the
magnetic window covers and gave a command to the inmate before deployment of the flash-bang
and believed there was an adequate period of time (up to five seconds) for the inmate to comply
before the flash-bang was inserted. He also expressed the opinion that based upon the facts it
appears there was a plan to extract all six cells in the same way and not have an individualized
plan for each inmate.
Lt. Smith was questioned about the burn injuries and powder marks that some of the inmates
suffered. He stated that the device would burn if it came into contact with a person as it
detonates. The device should not be deployed in such a way as to come into contact with a
person. The device is not intended to cause injury. He viewed photographs of the scorch mark on
inmate Kerwin’s pants near the upper thigh and stated that the mark is consistent with the subject
lying on the cell floor, with the flash-bang against his leg when it detonated.
Regarding the injuries to inmate Morrision, Lt. Smith concluded that the inmate was most likely
on the floor at the time the flash-bang was inserted into the cell, and face down on the cell floor
when the flash-bang detonated in contact with or very near the left arm and chest. Captain
Powell asked him if the inmate had complied with directions to lie face down on the floor and
was otherwise compliant, would the deployment of the device have been proper. Lt. Smith issued
a qualified response stating, “Not if he was otherwise compliant, had no other uh, combative
history”.
After examining the photographs of inmate Lucas’ injures to the upper thighs and black soot on
the floor of his cell, it was Lt. Smith’s opinion that the injuries were consistent with a flash-bang
device between the upper legs of the inmate at the time of detonation. If the inmate had moved to
the cell floor in compliance with instructions and offered no resistance, the deployment of the

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device would have been inappropriate in most instances. The injuries, according to Lt. Smith,
clearly establish that the inmate was on the floor when the device was deployed and detonated.
In summary, Lt. Smith stated that three inmates were in a prone position on the cell floors at the
time the flash-bangs detonated. Furthermore, he considers it inappropriate to insert a flash-bang
into a cell in such a manner as to come into contact with a person.
C. Prostraint Chair
The decision to and actions of placing the inmates in prostraint chairs is evaluated because of the
length of time each inmate was left in the chair. This raises the question of whether it was used as
punitive action, inhumane treatment or corporal punishment of a prisoner, as prohibited under Penal
Code sections 147 and 673.
The literature reviewed indicated that this restraint device is in use throughout the United States
and internationally in jails, state, and federal prisons, mental health institutions, and by both the
Immigration and Naturalization Service and the U.S. Marshall’s Service. However, the use of
this device is not without controversy and was related to the in-custody death of a Sacramento
County jail inmate in 19957. Generally, the device is used to provide safe containment of an
inmate exhibiting violent or uncontrollable behavior and to prevent self-injury, injury to others,
or property damage when other control techniques are not effective. The prostraint chairs are on
wheels, which allow the safe movement of an inmate while restrained. Sheriff’s Operations
Order 3/100 is consistent with the suggested procedural guidelines by the manufacturer and the
American Correctional Association Standards for Adult Correctional Institutions.
In this case after the cell extraction, each inmate was secured into a prostraint chair and
examined by a staff nurse in the 8 West classroom. The examining nurses heard the detonations
but were unable to see any activity associated with the extractions. As the inmates were moved
to the classroom, the nurses checked their vital signs and the pressure of the restraints on the
inmates’ hands and legs after being placed into the prostraint chairs as required by Operations
Order 3/1018. The inmates were then moved to other locations within the facility and monitored.
All of the inmates were eventually examined by Dr. William Robinson and cleared for continued
incarceration. There is no evidence of any injury from this procedure, nor did the inmates
complain of injury as a result of confinement in the prostraint chair.
General Order 3/100 permits the use of this restraint device to control a physically resistive
inmate9. Except in a case of exigent circumstances, placement in the chair requires the approval
of a Watch Commander and the presence of a supervisor. A medical evaluation must occur when
inmates are initially placed in the device, and if restraint exceeds the one hour period, a follow
up evaluation must occur every two hours. Unless extended by a Watch Commander for good
cause, no inmate is to be restrained in the chair for longer than one hour. Additionally, the inmate
must be visually observed at least twice every thirty minutes. A safety segregation cell log sheet
7

The Progressive Magazine, April 2000, “The Devil’s Chair” by Anne-Marie Cusac; 1997-98 Sacramento County
Grand Jury Final Report, Complaint 98-55.
8
Sheriff’s Department Operations Order 3/101, Use of Prostraint Chair, revised 4/03 (Main Jail).
9
Sheriff’s Department Operations Order 3/100, Use of Restraints, revised 4/03 (Main Jail).

Page 10
must be prepared and maintained during the restraint process. The Order specially prohibits the
use of the chair for “punishment”. The time can be extended by the watch commander, but the
reason must be in writing, and only when clear and articulable facts justify continued retention10.
If the restraint exceeds the one-hour limit, a further medical screening must occur.
All of the extracted inmates were confined to prostraint chairs for more than two hours.
Segregation Logs recorded the visual observations of each inmate. An inter-office memorandum
to Jail Commander Mark Iwasa was prepared by Sergeant Hayes, articulating the reasons for the
use of the chair restraint in excess of one hour for each inmate. The justifications for extended
time in the prostraint chairs were made on a pre-printed form that allowed Sgt. Hayes to check
applicable headings and add comments. All of the letters had a “cookie-cutter” appearance and
listed the primary reason for the continued retention in the chair as “combative behavior”.
Inmate Toro was the last to be removed from the chair at 11:37 p.m. He was then handcuffed to
a drain in a safety cell (padded) till 7:00 a.m. December 2. The other five inmates were relocated
to different cells located throughout the main jail facility.
V. APPLICABLE LAW AND ANALYSIS
A. Law Applicable to Use of Force in Jail
The District Attorney’s Office must evaluate the evidence in this case according to the
controlling legal standards. The issue presented is whether the evidence proves beyond a
reasonable doubt that the officers’ use of force was unlawful or excessive, such that there is a
reasonable likelihood that a jury would vote unanimously to convict the officer. The legal
authority applicable includes Penal Code Sections 147, 149, 673, 835, 835a, 2652, as well as
state and federal case law.
Custodial officers may use reasonable force on a prisoner to enforce jail regulations or when
necessary to prevent a prisoner from doing bodily harm to a prison official or other inmates.
However, the federal and state constitutions prohibit the infliction of cruel, inhuman or excessive
punishment on prisoners. In recognition of these constitutional rights, the Penal Code of
California carefully restricts correctional authorities in the treatment of prisoners. Section 147
provides that an officer guilty of “willful inhumanity or oppression” towards a prisoner is subject
to a fine or removal from office. Section 673 makes it a misdemeanor to use any “cruel, corporal
or unusual punishment” upon a prisoner. Section 149 provides that: “Every public officer who,
under color of authority, without lawful necessity, assaults or beats any person, is punishable by
a fine…, or by punishment in state prison… or in a county jail …or by both fine and
imprisonment”.
A number of factors are considered in determining whether or not the use of force was
objectively reasonable. These include the severity of the disruption, whether any of the inmates
posed an immediate threat to the safety of the officers or others, whether the inmates were
actively resisting or attempting to resist removal from their cells, whether the physical force
applied was of such an extent as to lead to injury, the duration of the action, the number of
10

Operations Order 3/101 does not define or suggest what are “clear and articulate” facts justifying an extension.

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persons with whom the officers had to contend with at one time, and the possibility that the
inmate is violent and dangerous.
Courts are historically reluctant to interfere with the discipline and control of inmates in a
correctional setting. While custodial officers are to be held strictly to account for imposing cruel,
inhuman or excessive punishment on prisoners, officials will not be censored because they
defend themselves when attacked and/or use force to subdue recalcitrant inmates. In re George
Edward Riddle (1962) 57 Cal.2d 848.
For our purposes, the legal standard is whether the evidence demonstrates beyond a reasonable
doubt the force used was excessive, and not reasonably necessary to compel compliance by the
inmates with jail regulations and/or to prevent an inmate from doing harm to a jail official. Put
another way, we must determine whether twelve jurors would unanimously agree the force used
was so unreasonable that it was criminal.
B. Decision to Make Forcible Cell Extractions
Sergeant Donald Black was a sixteen year veteran of the Sheriff’s Office. On December 1, he
was a recently promoted probationary sergeant. He was designated as the main jail shift Watch
Commander during the evening of December 1. Sgt. Black and the three other sergeants on duty
at the jail that night (Scott Hayes, Russell Munn and Kelly Lara) were all still on probation.
These were the only sergeants on duty. No one at the management level (i.e. above the rank of
sergeant) was present in the jail that night, nor was any senior administrative staff contacted until
after the extractions had occurred.
Under existing Sheriff’s policy, Sgt. Black was not required to notify off-duty command staff of
the flooding or extractions, since the event did not qualify as a “major incident” under Sheriff’s
General Order 2/40. The definition of a major incident includes escapes, explosions, riots and
hostage situations. According to jail commander Captain Iwasa and Lt. Smith, flooding of cells
and forcible extractions are common occurrences and generally do not rise to the “major
incident” level.
Sheriff’s Operations Order 2/30 required that a Custody Emergency Response Team (CERT) be
maintained on each watch and directed by a CERT Sergeant or a tactical supervisor. CERT
teams were established to reduce the risk of injury to staff and inmates. A CERT team was onduty the evening of December 1 and included officers who had received special training on cell
extraction techniques and the use of tactical equipment such as flash-bangs. Deputies O’Brien,
Fermer and Reeve had been formally trained and participated in the deployment of the flashbang diversionary devices in a custodial setting and were aware of the dangers involved.
Between 7:57 p.m. and 8:27 p.m., Sgt. Black conducted a briefing in the jail conference room
with the CERT team and Sergeants Black, Munn, and Hayes. Sergeant Black and CERT team
leader Deputy O’Brien focused on the potential dangers involved with the extractions of the five
upper tier inmates particularly Michael Toro and Jessie Kerwin. The jail disciplinary write-ups
were reviewed and the inmates’ pending criminal charges were discussed. The officers
discussed the inmates’ past violent behavior in the jail, which would be a basis for concern of

Page 12
officer safety in a confrontation with these inmates. No consideration was given to directing
each inmate to voluntarily exit the cell, or to the fact that the inmates were locked in cells
thereby unable to cause further flooding or physical harm to themselves, staff or other inmates.
There were no reported threats made by the involved inmates towards jail staff at the time of the
flooding or once the water flow was shut off and the cell door windows covered. In fact, the 8th
floor control log has no notations relating to the involved inmates between the discovery of the
flooding and the extractions. The tenor of the briefing was the perceived danger the inmates
posed during extraction and the likely need to utilize diversionary devices and non-lethal
munitions.
We consider the Sheriff’s Operations Orders since adherence to them reflects on whether the
officer’s actions were reasonable. Sheriff’s Operations Order 2/20, Cell Extraction Procedures,
gives the CERT Sergeant or other tactical supervisor broad discretion. The suggested procedure
is: 1) direct the inmate to exit the cell voluntarily; 2) give the inmate reasonable time to exit the
cell; 3) authorize extraction if the inmate does not comply, and if the inmate does comply then
the Sergeant is to determine the appropriate action. As already noted, there is no evidence the
inmates were afforded an opportunity to voluntarily exit their cells. In fact, the video recording
confirms such an opportunity was never contemplated.
While Order 2/20 suggests that an inmate should be given an opportunity to voluntarily exit the
cell, it also allows the sergeant or tactical leader broad discretion to authorize forcible extraction
even if the inmate complies. This is undoubtedly to account for situations where an inmate may
feign compliance until he sees an opportunity to resist or attack. Still, the Order is ambiguous,
confusing and fails to require an attempt or even an evaluation of whether a voluntary cell exit
can be made in a safe, controlled manner before resorting to a physical confrontation.
Based upon the inmates’ criminal histories, the nature of the jail disruption and disciplinary
write-ups which included threats to jail staff and other inmates, Sgt. Black chose the option of
removing the inmates with a CERT team. This course of action seems to be within the
parameters of Order 2/20. All the officers appear to have considered the inmates extremely
dangerous, defiant and capable of assaulting staff. From an outside perspective, one reasonable
course of action would have been to give each inmate individually an opportunity to be
handcuffed through the food port and voluntarily exit the cell to avoid the dangers associated
with physical confrontation. Once the inmate is handcuffed, the potential for resistance or assault
is greatly reduced. Still, Sgt. Black’s choice to physically remove the inmates was not
inconsistent with Operations Order 2/20. In terms of the legal standard, we believe there is no
reasonable likelihood that a jury would unanimously conclude that Sgt. Black’s decision was so
unreasonable that it was criminal in nature.

Page 13
C. Use of Flash-Bangs
At 8:27 p.m., the CERT team arrived in the 400 pod on the 8th floor. The team was in possession
of assorted non-lethal weapons including flash-bang grenades. The standard procedure, executed
here, was for the initial officer to enter using a shield accompanied by at least two other
extraction officers. This set-up is referred to as “stacking” the extraction team. Additional
members of the team were available outside the cell to assist, if necessary. Each cell extraction is
detailed individually in Attachment C.
The California Supreme Court discussed the deployment of a flash-bang device in Langford v.
Superior Court of Los Angeles (1987) 43 Cal.3d 729. There, Los Angeles police officers had
forcibly entered a residence for the purpose of executing a search warrant using a motorized
battering ram and flash-bangs to divert and disarm the occupants. The petitioners claimed the use
of the devices constituted excess use of force under the United States and California
Constitutions. While the court agreed the motorized battering ram was excessive, it found that
use of the flash-bang device was lawful. Expert testimony was cited showing that the flash-bangs
are designed to produce dramatic pyrotechnics, not to injure, and should cause only minor skin
burns at worst. One death caused by the device in 1984, when it exploded between the back of
the subject and a wall, was considered a freak accident, and measures were taken to preclude a
similar mishap by requiring officers to see fully into the target area before deployment.
Since there is no prohibition by statute or case law to the use of a flash-bang device, the question
becomes whether the deployment of the device was lawful under the circumstances here. The
evidence supports the conclusion that Sgt. Black and CERT team officers believed that these
inmates were dangerous and needed to be removed, forcibly if necessary, from their cells.
Certainly, if these inmates remained in their cells and the flow of water was restored, the toilets
and sinks could continue to be plugged causing additional disruption which could encourage
other inmates to participate, leading to the staff’s loss of control of the floor. The officers were
entitled to use reasonable force to ensure jail rules and regulations were followed, and to prevent
an inmate from harming any jail official. Under the circumstances, the evidence does not
establish that use of the flash-bang diversionary device was so unreasonable as to be criminally
unlawful.
One troubling aspect of the extractions as they occurred is Sgt. Black’s failure to observe the
inmates for a reasonable period of time after giving the order to get down on the cell floor and
before directing that the flash-bangs be inserted into the cells. The video established a pattern
that Sgt. Black would peek under the window cover, give the order to get on the floor, and
almost immediately close the cell window cover and order insertion of the device without a
second peek to determine whether the inmate had complied. Only four seconds elapsed between
the order and deployment of the flash-bang into Jessie Kerwin’s cell. After giving the order, Sgt.
Black closed the window covering and made no attempt to peek into the cell again before the
device was passed through the food port. During the extraction of Jason Morrison, Sgt Black
ordered the inmate to the floor, closed the window covering, unlocked the food port and caused
the flash-bang to be inserted within six seconds, again without any attempt to determine if the
inmate had complied with the instruction. Obviously Morrison did comply, since the burns he
suffered demonstrate he was on the cell floor when the device detonated. For inmate Daniel

Page 14
Lucas, ten seconds elapsed between the time Sgt. Black ordered him to his cell floor and the
flash-bang was inserted into his cell. The burns to Lucas’ inner thighs show that he was
undoubtedly prone on the cell floor at the time the device detonated. In none of the extractions
did Sgt. Black make any attempt to determine whether the inmate had complied with his
instruction before the flash-bang device was inserted into the cell.
The use of tactical weapons is governed by Sheriff’s Operations Order 3/150.11 The order
mandates that any officer using the weapon must be specially trained and must adhere to
the Department General Orders in conjunction with any federal, state or local regulation. The
order does not specially describe the procedures for the deployment of the flash-bang. The
officers involved in the deployment of the flash-bang devices during this incident had received
special training and were aware of the dangers associated with its deployment.
One possible inference is that the use of the flash-bangs was punishment of the inmates for
flooding the cells. However, it is a reasonable inference from the evidence the officers believed
the flash-bangs were necessary to remove these inmates. For purposes of evaluating reasonable
doubt the law requires that we accept any reasonable inference favoring the officers. The
evidence does not prove beyond a reasonable doubt that the officers inserted the devices with the
specific intent to cause physical harm to an inmate.
Unfortunately, the deployment of the devices resulted in injuries to some of the inmates.
However, the fact that some of the inmates did lie down on the floor as directed does not amount
to proof beyond a reasonable doubt that the officers’ actions were criminal. While one possible
conclusion that can be drawn is that the officers exercised poor judgment in deploying the flashbang, it is a conclusion that must be evaluated in the context of these inmates’ history of violent
and disruptive behavior. Resisting inmates may give the appearance of complying in order to
mislead officers, then will resume resistance as soon as the opportunity allows. The failure to
exercise reasonable care in the deployment of the flash-bangs does not alone support criminal
charges for the excessive use of force.
D. Force Used to Remove Inmates After Flash-bang Deployment
Turning to the actual physical force used by the officers to remove the inmates from their cells,
there is insufficient evidence to prove beyond a reasonable doubt that excessive force was used
in any of the extractions or that the use of force was punitive. This conclusion is based upon the
facts contained in the casualty reports, the video and audio recording of the extractions (which as
noted provide an incomplete record due to the vantage point and battery failure), and other
information developed during the course of the investigation.
The inmates involved in the disturbance were legally obligated to submit to the custody of the
officers. Custodial officers may use reasonable force upon a prisoner to enforce proper prison
regulation or where necessary to prevent a prisoner from doing bodily harm to a jail official. In
re Riddle, supra, 57 Cal.2d 848; O’Brien v. Olson (1941) 42 Cal.App2d 449. The officers
11

Sheriff’s Department Operations Order 3/150, Tactical Weapons and Equipment, revised 9/02 (Main Jail) requires
that any officer deployment tactical weapons, including flash-bang devices, shall be trained in their use. The flashbang device is listed in the order as “authorized” for use in the jail.

Page 15
reported that the physical force used on each inmate was only that necessary to subdue the
inmate when he refused to obey proper orders and became violent. There is no evidence tending
to show that the force used was applied for the purpose of punishing the inmates for violating the
rules of the facility. The fact that force was applied shortly after the inmates had flooded their
cells and the surrounding area does not prove that the officers acted with criminal intent to
retaliate for the flooding. In fact, the persistent disturbances and violation of rules, combined
with the background of the inmates, provide a basis for the officers having a reasonable fear the
inmates would resist any effort to subdue them.
The most seriously injured inmate, Michael Toro, was considered the most dangerous of the
group to be extracted. Toro had serious and violent charges pending and had a jail history of
defiant behavior that included threats of harm to jail staff. The officers involved in his extraction,
as reported in the casualty reports, stated he refused to expose his hands which he buried under
his body and kicked at officers attempting to restrain his legs. As a result of his actions the
officers resorted to physical force to overcome his resistance. While the camera failed to record
the action inside the cell, it did capture audio which tends to corroborate the officers’ version of
the encounter. The type of force used is not in and of itself proof of excessive force. The fact
that inmate Toro was struck with fists rather than a baton or other object was not unreasonable
under these circumstances and does not amount to criminal misconduct. Excepting the flashbang burns to Morrison and Lucas and the injuries to Toro, the injuries to the inmates were very
minor and of the type commonly experienced during routine handcuffing and leg shackling.
While the inmates’ versions of events differ from the jail staff’s version, that is not a sufficient
basis for a criminal prosecution of the officers. Considering their records, pending charges, and
behavior history in the jail before this incident, the inmates have significant credibility problems.
Evaluating all the evidence, we find the staff’s version of this event to be more credible than the
inmates. We believe a jury would reach the same conclusion. Because the officers’ efforts to
remove the inmates from the cells were lawful, and because there is no credible evidence to
support a finding that any of the officers harmed the inmates intentionally without legal
justification, there is insufficient evidence to support criminal charges against the extracting
officers for excessive force.
E. Prostraint Chairs
One might argue that the extended period of time the inmates were confined to the prostraint
chairs was a form of retaliation or punishment. Additionally, the primary justifications stated on
the inter-department correspondence addressed to Captain Iwasa by Sgt. Hayes for the extended
confinement were nearly the same, having a “cookie-cutter” appearance. In the letters pertaining
to inmates Countee and Jefferson, the first paragraph begins with the phase “Continues to exhibit
bizarre and suicidal behavior that will most likely result in the unnecessary endangerment to both
staff and prisoners if removed from the prostraint chair.” However, the letters do not state clear
and articulable facts that would support the conclusion that these two inmates were suicidal or
exhibiting bizarre behavior during the extraction process or while restricted to the chair. In the
other four letters Sgt. Hayes stated the number of jail disciplinary write-ups each has suffered
and justifies the extended restraint because each inmate had to be “forcibly removed from their
cells and was resistive to deputies efforts to remove him.” The language contained in Operation

Page 16
Order 3/101 appears to require that the Watch Commander state “clear and articulable facts”
justifying the continued retention. Sgt. Hayes’ letters seems to be lacking the required
articulation of facts to support the use of the prostraint chairs for more than two hours.
While these facts raise questions whether the use of prostraint chairs for over two hours was
inhumane or corporal punishment under these circumstances, the evidence does not prove
beyond a reasonable doubt that the use and confinement of the inmates in the prostraint chairs
was criminal.
VI. CONCLUSION
Individually or collectively, all of the above facts do not prove beyond a reasonable doubt that
the actions by the officers in the forcible extraction of the six inmates from their cells on
December 1 involved criminal misconduct. The evidence supports findings of poor judgment by
jail staff, lack of administrative supervision and a need to review the Operations Orders
pertaining to the use of force in the main jail. It appears that for the entire main jail staff and the
population of approximately 2000 inmates, no management level officer was on duty, and the
entire operation was under the control of a probationary supervisor, who had the discretion to
direct and conduct all the events described here without any requirement under existing
procedures to consult or advise any management staff. Further, the manner in which the
Sheriff’s Department brought this case to the District Attorney for criminal investigation,
followed by the unwillingness to be responsive to legitimate investigative requests from this
office, and the overuse of Lybarger admonitions to witness officers, hampered our ability to
conduct a thorough and independent investigation.
Nonetheless, applying the controlling legal standards to the factual record in this case, we find
insufficient evidence to support a criminal charge related to the use of excessive force against
any of the officers involved. While this case raises significant questions regarding jail operations
and the treatment of inmates, our decision here, as in any case, must be based upon what the
evidence proves.
Sincerely yours,
JAN SCULLY
DISTRICT ATTORNEY

ALBERT C. LOCHER
Assistant Chief Deputy
cc:

Jan Scully
Lou Blanas

Page 17

ATTACHMENT A
DETAILED CHRONOLOGY OF MAIN JAIL INCIDENT OF
DECEMBER 1, 2005

12

•

6:00 p.m.: Sacramento Sheriff’s Deputy R. Kacalek, working as a floor officer in the
Main Jail received information from an inmate that other inmates housed on the eighth
floor, pod 400, were going to flood their cells during the evening hours. The officer
conveyed this information to the evening shift personnel at 6:40 p.m. It is unknown what
action, if any, was taken by jail officials in response to this information, since the
documents reviewed are void of any information except for a supplemental one page
report prepared Deputy Kacalek noting his contact with the informing inmate.

•

7:33 p.m.: Deputy Paul Labane and Deputy Justin Mulherin observed water flowing over
the walkway of the upper tier in the 400 pod, 8 floor West. The water was found to be
escaping from under the doors of cells 411, 412, 416, 419 and 420. A single inmate
occupied each cell with access to running water from a sink and toilet. A significant
amount of water had drained onto the main floor of the pod and was flowing to other
areas of the 8th floor at the time of discovery.

•

7:34 p.m.: Deputy Courtney Bartilson and Deputy Labore terminated the flow of water to
the flooding cells.

•

7:43 p.m.: Sergeants Scott Hays and Sergeant Russell Munn arrived at 400 pod and
identified the cells and inmates responsible for the flooding. They requested further
assistance resulting in the arrival of Deputies Ball, Vierra, VanAssen, Margetti and
Philips along with a group of inmate trustees who begin to restrict the water from flowing
out of the 400 pod. During this process, the officers reported that inmates housed in the
pod were shouting, yelling and kicking the insides of their cell doors. Sergeant Hays
contacted Watch Commander, Sergeant Donald Black by radio and requested the
assistance of the Custody Emergency Response Team (CERT) to remove the five
responsible inmates from their cells. The 8th floor West area was locked down and the
trustee inmates involved in the water clean up were removed from the pod. The windows
of the five cell doors on the upper tier were covered with a material that attaches to the
metal doors by magnets. This action prevented the cell occupants from seeing anything
outside the door. The five involved inmates were identified as Michael Toro cell #412,
Jessie Kerwin cell #411, Courtney Countee cell #416, Jason Morrison cell #419 and
Daniel Lucas cell #420.

•

7: 57 p.m-8:27 p.m..: Sergeant Black contacted the CERT members12 on duty in the
main jail and instructed them to dress out in protective clothing and meet in the second
floor conference room for a pre-extraction briefing. At the briefing teams members were

Custody Emergency Response Team: Donald Black, Paul Labance, Michael Keegan, Nate O’Brien, James
Crouson, William Starr, Courtney Bartilson, Frank Fermer, Claude Torrey, Joseph Reeve.

Page 18
informed that an emergency situation was occurring on 8 West involving five inmates
who had clogged their toilets causing flooding in their cells and the 400 pod. The briefing
was lead by Sergeant Black and CERT team leaders Deputies Nate O’Brien and Frank
Fermer. According to the reports and transcripts, the team was briefed on the inmate’s
criminal histories, jail incident/ disciplinary write-ups and the perceived potential threat
each presented. There is no evidence of any discussion about allowing an inmate to
voluntarily exit his cell. It was assumed that force would be necessary, based upon the
coordinated nature of disruption combined with the inmates’ violent and serious criminal
histories and history of defiant jail behavior.

13

•

8:27 p.m.: Sergeant Black and the CERT team arrived on 8 West in the 400 pod. The
team was in possession of assorted non-lethal munitions, including flash-bang grenades,
Sage, Stingballs and OC spray obtained from the jail armory. The group, lead by Sgt.
Black, walked up the tier leading to the five cells with Deputy Ball following recording
the actions with a video/audio camera.

•

8:36 p.m.-9:14 p.m.: The forcible extractions begin with the removal of inmate Michael
Toro from cell #412 and ending with inmate Claudis Jefferson from cell #404 on the
lower tier13. Prior to the opening of each locked cell by Sgt. Black with a key, he pulled
the corner of the door window cover back, peered inside the cell and ordered each inmate
to move to the cell floor. Once the order was given, Sgt. Black immediately recovered the
window, unlocked the small food port in the center of the cell door and either verbally or
by a nod of the head authorized the deployment of the flash-bang grenade into each cell
through the small opening in the door. Once the order was given and the covering
replaced on the window, the flash-bang was inserted into the cell without warning or
another look into the cell to determine if the inmate had complied with the instructions.
After the flash-bang ignited, usually within 2 to 3 seconds after insertion, Sgt. Black
opened the cell door and a group of three officers rapidly entered the cell and engaged the
inmate. Once the inmate was neutralized, his hands were cuffed behind his back and his
legs shackled. This same procedure was repeated at each cell.

•

During each extraction the video/audio camera captured the movement of the officers
outside the cells as well as portions of the conversations that occurred before, during and
after contact with each inmate. The recording displays a tape counter in minutes and
seconds. Officers can be heard ordering the inmates to comply and cease resisting along
with sounds consistent with the striking of body blows. However, the position of the
camera was outside the cells resulted in more audio then video recording of the
confrontation. The extraction of Jefferson from Cell #404 was not recorded due to
battery failure.

•

8:43 p.m.-11:37 p.m.: After each inmate was removed from his cell, they were all moved
to a classroom located on the main floor of 8 West. Once inside the room, each inmate
was physically restrained in a prostraint chair with the use of leg shackles and handcuffs.
An on-duty jail nurse conducted a brief medical evaluation at the time each inmate was

Inmate Claudis Jefferson was identified as attempting to incite the inmates on the upper tier by yelling for them to
resist from his lower tier cell during the extraction process.

Page 19
being placed into the prostraint chairs. The inmates remained in the chairs for more than
two hours. Inmate Toro, the last inmate to be removed from a chair, was relocated to a
safety cell at 11:37 p.m..
On December 2, each inmate was examined and photographs were taken of visible injuries.
Photographs of the floors inside cells 404, 411, 412, 416, 419, and 420 were obtained to establish
the location of each flash-bang when it exploded. In cell 412 (Toro’s) black soot markings were
found just inside of the cell door. In cell 411 (Kerwin), the burn marks were on the floor and
wall, mid-way into the cell. The burn marks in cell 416 (Countee) were on the floor and wall
under a metal table attached to the rear wall of the cell; cells 419 (Morrison) and 420 (Lucas) had
burn marks on the floor in the center of the cell; and the photographs of the floor in cell 404
(Jefferson) did not reveal a visible burn pattern.

Page 20
ATTACHMENT B
INMATE INJURIES

•

Michael Toro: At 7:45 a.m. December 2, 2005, inmate Toro was medically evaluated by
the jail physician and referred to the San Joaquin County Hospital for further examination
and treatment. He was treated for a laceration under the chin, a fractured nose, swelling
of the tissue surrounding the right eye and cheekbone, bruises and contusions to the head
and upper and lower lips and a broken tooth. Toro was cleared for continued
incarceration and returned to the Sacramento Main Jail at 3: 33 p.m..

•

Jessie Kerwin: At 11:20 p.m., December 1, Kerwin was medically evaluated after being
released from the Prostraint Chair. He complained of pain to his rib cage and had powder
burns on his pant near the right hip and upper thigh areas and bruising to both knees.
Kerwin was moved to the fourth floor classroom pending re-housing.

•

Courtney Countee: At 11:30 p.m., Countee was removed from the Prostraint Chair and
medically evaluated. No visible injuries were apparent immediately after the extraction.
However, minor bruising to his left ear and head were observed by investigators the next
morning and he complained of pain to this right shoulder. He was placed in the fifth floor
west classroom pending re-housing.

•

Jason Morrison: At 10:35 p.m., Morrision was medically evaluated and found to have
suffered flesh burns to his upper left chest and arm consistent with contact or near contact
with a flash-bang device when activated. The nurse cleaned the injuries and applied
medication before clearing him to be placed in the Prostraint Chair for continued
incarceration. He was removed from the restraint at 11:10 p.m. and relocated to the 5th
floor east.

•

Daniel Lucas: At 11:10 p.m.., Lucas was removed from the Prostraint chair in the jail
medical center and treated for burns to the insides of both legs near the genitals. He also
displayed bruising to left ear and temple areas. He was cleared by the doctor on duty for
continued incarceration and relocated to the 6th floor east.

•

Claudis Jefferson: At 11:30 p.m.., Jefferson was removed from the Prostraint Chair and
medically examined for injuries. He complained of pain to his left wrist, which was
wrapped with a support bandage. No other visible injuries were observed. Jefferson was
cleared for continued incarceration and was returned to the 8 West classroom pending
relocation.

Page 21
ATTACHMENT C
DETAILS OF EACH INDIVIDUAL CELL EXTRACTION

The cell extraction details below are from the Sheriff’s Casualty Reports, video and audio
recording and witness statements.
1. Michael Toro - Cell 412: At 8:26 p.m., Sgt. Black ordered Toro to the floor of his
cell while looking through the door window. He gave the order twice before closing
the window covering. Deputy Nate O’Brien pulled the flash-bang grenade pin as Sgt.
Black unlocked the food port opening and Deputy O’Brien inserted the device into
the cell. The device exploded immediately. Sgt. Black unlocked the cell door and a
team of officers entered, the first holding a shield. The video view of this extraction
does not expose details of what occurred inside the cell but the audio records voices
stating, “Quit resisting” and sounds consistent with physical force being applied. The
casualty report by Deputy O’Brien states Sgt. Black said Toro was still sitting on his
bed with his right hand buried in his waist and was refusing to get on the ground as
directed. The extraction officers stated that Toro was taken to the floor but he refused
to remove his hands from underneath his body preventing the officers from gaining
control of his hands. Deputy Nelson reported that he struck Toro in the face with his
fist “four to fives times” to gain control of arms and hands and prevent him from
kicking the other officers. Once cuffed and shackled, the officers moved Toro to the
lower tier where he was secured into a prostraint chair.
2. Jessie Kerwin - Cell 411: At 8:49 p.m., Sgt. Black looked into cell 411 and ordered
inmate Kerwin to lie down on the floor. He then replaced the door window covering
and advised the team that the inmate remained on his bunk. Sgt. Black unlocked the
food port and Deputy O’Brien inserted the flash-bang, which detonated. Sgt. Black
unlocked and opened the cell door and Deputies Torrey, Fermer and Nelson entered.
Deputy Torrey stated that Kerwin appeared to be moving to the cell floor from his
bunk as the team entered. He hit Kerwin with the shield forcing him to the floor.
Deputy Torrey’s statement is inconsistent with that of Deputy Bartilson who prepared
the casualty report. Deputy Bartilson’s report indicated that Kerwin was ordered to
the floor “no less than three times” remaining seated displaying his fists before he
was forced to the floor by Deputy Torrey with the shield. Deputy Torrey reported that
he struck Kerwin with his fists on the shoulder area to get control of his hands.
Deputy Bartilson’s report indicates that Kerwin failed to comply with instructions to
produce his hands and continued to struggle by kicking his feet. Kerwin was
eventually handcuffed and shackled and secured in a prostraint chair.
3. Courtney Countee - Cell 416: At 8:55 p.m., Sgt. Black ordered Countee to lie on the
cell floor with his head towards the bunk and told the other officers that the inmate
was in the back of the cell. Deputy Fermer’s casualty report indicates that Sgt. Black
again covered the cell window and nodded to the Deputy to deploy the flash-bang.
Deputy Reeves pulled the pin and inserted the device into the cell through the food

Page 22
port that was unlocked by Sgt. Black. After the detonation, Sgt. Black unlocked the
door and Deputies O’Brien, Reeves and Fermer entered the cell. Countee was found
on the cell floor and reportedly starting kicking at the officers as they attempted to
secure his arms and legs. Deputy Fermer reported that he struck Countee “three to
five times” with his fist on the right thigh, which allowed the officers to gain control
of the inmate. Countee was cuffed and shackled and placed into a prostraint chair.
Deputy Reeve stated he entered the cell to assist since Countee’s movements were
preventing the officers from gaining control of his arms and legs. Once inside, he
grabbed Countee’s arm but Countee was able to pull away disregarding directives to
stop moving. Deputy Reeve then struck Countee with his fist on the left side of his
head twice which caused the inmate to allow officers to gain control.
4. Jason Morrision - Cell 419: Between 8:58 and 9:00p.m., CERT team members arrived
outside cell 419. Sgt. Black looked into the cell by moving the window cover aside and
ordered inmate Morrison to lie on the floor with his head towards the bunk. Moments
later, Sgt. Black again covered the window and unlocked the food port stating that the
inmate was in the back of the cell. He then nodded to Deputy Fermer to insert the flashbang. As Deputy Fermer removed the pin and inserted the device he noted that Morrision
was not on the floor directly below the food port before placing the device in the cell.
Once the device exploded, Sgt. Black unlocked the cell door and Deputies Keegan,
Torrey and Bartilson entered. According to Deputy Bartilson’s casualty report, Morrison
was on the cell floor face down with his hands concealed. He refused to produce his
hands and pulled away from the officers as they attempted to control his arms and legs.
Deputy Bartilson further stated that he struck Morrision on the right shoulder “five times”
before the officers were able to cuff his hands and shackle his feet. Morrision was
removed from the cell and secured into a prostraint chair.
5. Daniel Lucas - Cell 420: At 9:05 p.m., Sgt. Black removed the magnet window covering
from the cell door, looked inside and ordered Lucas to the floor face down, replaced the
window covering and opened the food port. Deputy O’Brien reported that he pulled the
pin and inserted the flash-bang device into the cell. In the casualty report, Deputy
O’Brien stated he observed the inmate in the process of kneeling down onto the cell floor
when he inserted the device. Sgt. Black opened the cell door and officers entered and
secured the inmate with handcuffs and shackles as he lay on the floor. Lucas was
removed from the cell and placed in a prostraint chair.
6. Claudis Jefferson - Cell 404: During the cell extractions of the five upper tier inmates
in 400 pod, inmate Jefferson was identified as “inciting the other inmates in the pod
to start yelling as well”. At 9:15 p.m., Sgt. Black, while standing in front of
Jefferson’s cell, ordered him to stop yelling. Jefferson’s response was “he did nothing
wrong” according to the casualty report prepared by Deputy Starr. Sgt. Black
instructed Jefferson to lie on his stomach on the cell floor then stated to the other
deputies that the inmate was sitting on his bunk. Deputy Fermer inserted the flashbang into the cell through the food port and it detonated. Sgt. Black opened the cell
door and deputies Labane, Torrey and Starr entered the cell. Deputy Starr reported
that Jefferson was sitting in an upright position on his cell bed and rolled onto the

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floor only after being ordered to do so by Deputy Labane. Jefferson ended up laying
near the toilet in a fetal position. Deputy Torrey gained control of the inmate’s lags
and Deputy Labane placed his left arm in a wrist lock. He was then shackled and
handcuffed. Jefferson was escorted from the cell and secured in a Prostraint Chair.

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ATTACHMENT D
INMATE BACKGROUNDS AND STATEMENTS

Michael Toro (X-2201565): Pending charges – Murder (P.C. 187), Attempted murder (P.C.
664/187), Assault with a deadly weapon (P.C. 245(a)(1)), felon with a gun (P.C. 12021); forty
disciplinary write-ups while in the jail.
In a statement on December 2, inmate Toro said that a group of inmates in his pod (8 West, 400
pod) flooded their cells because of the staff’s failure to respond to inmates concerns over an
unclean shower area. After a period of time he was told to get on the floor and he did so as a
“smoke bomb” came inside the cell and exploded. Immediately thereafter, the cell door opened
and a group of officers came in as he was putting his hands behind his back while lying face
down on the floor. Toro states that while he was pinned face down on the floor he felt fluid
coming from his nose and spit out a piece of his tooth. He also suffered a cut under his chin. He
was then taken from his cell with a cloth covering over his face (spit mask) that filled with blood,
placed in a restraint chair and eventually “chained” to a drain. He was treated the next day at a
hospital and discovered he had suffered a broken nose, lost a tooth, cut his upper and lower lip
and a had cut under the chin. He denies that he resisted and says he placed his hands behind his
back as instructed before being struck in the face numerous times while pinned to the floor.
Jessie Kerwin (X-3350881): Pending charges – Robbery (8 cts.) (P.C. 211); over thirty
disciplinary write-ups while in the jail, including assaults on staff and threats to staff.
In a statement on December 2, inmate Jessie Kerwin admitted to flooding his cell as a protest to
living conditions in his pod. He recalls that the window to his cell was covered after the water
was turned off and Kerwin recalls hearing someone order Toro to get on the floor, then the bang
and voices telling Toro to stop resisting. He distinctly recalls hearing smacking sounds and
grunting consistent with “like beating him (Toro) up”. Believing that he would be the next cell,
Kerwin stated that out of fear he tied a shirt around his head and put toilet paper in his ears and
then a blanket over his head. He was told to get on the floor but was afraid because of the “bang”
that was coming. As soon as he heard the explosion he dropped to the floor with his hands
behind his back before the officers entered the cell. The officers immediately pinned his ankles
and grabbed both arms. He recalls being struck with fists in the small of his back and being
kneed in the ribs and groin. Kerwin denied that he resisted in any form even though the officers
continuously yelled “quit resisting” until he was removed from the cell.
Courtney Countee (X-2482601): Pending criminal charges – Possession of Narcotics (H.& S.
11350)
In a statement on December 2 inmate Countee stated he was in his cell when he heard other
inmates talking about “Niagara Falls” (cell flooding) as a protest. He admitted to flooding his
cell by blocking the toilet causing it to overflow out onto the upper tier. After the water was cut
off, his cell window was covered and he could hear movement outside his door as if someone
was attempting to clean up the water. A short time later, he recalled hearing an inmate

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“screaming out, ‘I’m not resisting, I’m not resisting’”. Out of fear, Countee attempted to dry his
cell floor, then placed a blanket on the floor and got down onto it. An officer moved the window
covering, peered inside and instructed him to turn his head away from the door. As he turned
around he heard the food port open and the sound of an object being inserted. Without warning
there was an explosion near his face then a group of officers rushed into the cell. One of the
officers pinned him to the floor with a shield. He remembers hearing an officer state
continuously “stop resisting”. He claims he was struck all over with fists and that his wrist was
hyper-extended over his shoulder as he lay on the floor. Once he was handcuffed and shackled
the officers pulled him to his feet and struck him in the face with a closed fist and kneed him in
the groin. A spit mask was then placed over his face and was eventually placed in a restraint
chair. Countee stated emphatically that he was prone on the cell floor when the officer peered in
and ordered him to turn his head away from the door before the flash-bang was inserted. He
claimed to have a black and swollen right eye, and abrasions to the back of his head and left
elbow.
Jason Morrison (X-2879706): Pending charges – Murder (P.C. 187), Burglary (P.C. 459), Auto
Theft (V.C. 10851); over thirty disciplinary write-ups while in the jail.
In a statement on December 2, inmate Morrison denied flooding his cell but stated that the other
inmates did so to protest the lack of response by jail staff to poor living conditions. Morrision
recalled an officer asking him if he had flooded his cell via the intercom, which he denied, before
two officers came onto the tier and turned the water off. An officer shined a flashlight into his
cell as he was emptying water from his toilet so he could communicate with other inmates, not to
flood the floor. Moments later a covering was placed over the cell door window. He then heard
footsteps, a “lot of commotion and…that’s when the concussion grenades were going…’ thrown
into the cells”. Morrision reported that once the group arrived outside his door, he was told to lie
on his stomach. He claims to have moved onto the floor immediately as the food port was
opened and a grenade inserted. The object rolled underneath his shirt and exploded as he lay face
down on the floor. After the explosion, the cell door was opened and the officers rushed in.
Morrison states he was struck numerous times in the face and mouth and his head pushed to the
concrete floor numerous times as he was being handcuffed and shackled. According to Morrison,
he suffered cuts inside his mouth, abrasions to the check, and burns to his left arm and chest. He
denied resisting or attempting to assault any officers during the cell encounter and followed the
directions that we given before the Flash-bang was inserted.
Daniel Lucas (X-3687951): Pending charges – Murder (P.C. 187), Attempted murder (P.C.
664/187); over thirty disciplinary write-ups while in the jail, including assaults and threats to
staff.
In a statement on December 2, inmate Lucas admitted to flooding his cell to protest poor but
denied that he resisted or failed to comply with staff instructions before the Flash-bang was
inserted into his cell. He recalled hearing the explosions in other cells and the officers yelling
“Quit resisting, quit resisting!” At his cell, he saw the officer look inside before ordering him to
lie on the floor, face down. When he moved to the floor the food port was opened and the
“thing” (flash-bang) was inserted. The device rolled between his legs as he lay on the floor
before exploding. Immediately thereafter, the officers entered the cell, one holding a shield,

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yelling “Quit resisting, quit resisting!” His hands and legs were secured and he was walked to the
pod classroom and placed in a restraint chair. Lucas stated he suffered burns to both upper
thighs, contusions and abrasions to his head and right chest area.
Claudis Jefferson (X-3277212): Pending charges -- Possession of Narcotic (H.& S. 11350)
In a statement on December 2, inmate Jefferson stated that he was being housed in 400 pod for
disciplinary reasons on the lower tier at the time of the flooding. He was not involved in the
flooding and denied that he was inciting other inmates during the cell extraction process that was
occurring above his cell. An inmate, who was outside Jefferson’s cell, moved the door window
covering and told him the officers were assaulting the inmates who had caused the flooding and
that he (Jefferson) was next. After approximately thirty minutes passed, an officer peered into his
cell and told him to get out of the bed and onto the cell floor. Jefferson claimed he was getting
out of the bed when a “bomb” (flash-bang) was inserted into his cell and exploded. The cell door
opened and a group of officers entered as he was moving face down to the cell floor. He stated
he placed his hands behind his back as they yelled “Quit resisting, quit resisting!” Jefferson
accused the officers of assaulting him with hands and knees and choking him from behind while
on the floor. He denied resisting, kicking or hitting and displayed a splint on his left arm and
wrist that he claims was injured during the extraction.